MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Oct 30 2018, 6:55 am
regarded as precedent or cited before any                            CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Christopher Simpson                                      Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Francis H. Barrow
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Simpson,                                     October 30, 2018
Appellant,                                               Court of Appeals Case No.
                                                         18A-CR-1347
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable David C. Cates,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         43D01-1308-FB-519



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018         Page 1 of 6
[1]   Christopher Simpson, pro se, appeals from the trial court’s denial of his motion

      for credit time. We affirm.


                                      Facts and Procedural History

[2]   On October 15, 2015, the trial court entered a judgment of conviction providing

      that Simpson committed the offenses of burglary as a class B felony under

      Count I and criminal deviate conduct as a class B felony under Count II. The

      court sentenced Simpson to consecutive terms of ten years in the Indiana

      Department of Correction (the “DOC”) with four years suspended for his

      conviction under Count I and ten years with four years suspended for his

      conviction under Count II.


[3]   In November 2017, Simpson pursued a grievance stating that he was denied

      credit for completing the Purposeful Living Units Serve program (the “PLUS

      Program”). The Classification Division of the DOC sent a letter dated

      November 16, 2017, to Simpson which provided:


              This letter is in response to your recent correspondence
              concerning time cuts for programs completed.

              The time cut for “PLUS” was denied. Part of your current
              incarceration includes a sex offense listed under IC 11-8-8-4.5,
              therefore, you are not eligible to receive reformative program
              time cuts. Credit time is not an appealable issue.


      Appellant’s Appendix Volume 2 at 24.


[4]   In April or May 2018, Simpson filed a petition for educational credit with the

      trial court requesting credit pursuant to Ind. Code § 35-50-6-3.3 and a
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018   Page 2 of 6
      memorandum in support of his petition. Simpson alleged that he completed the

      PLUS Program on January 10, 2017, and that the DOC failed to award him

      educational credit for completion of the program. He argued that, while Ind.

      Code § 35-50-6-3.3(d) provides in part that a person serving a sentence for an

      offense listed under Ind. Code § 11-8-8-4.5 may not earn the educational credit,

      he was serving a sentence for the offense of burglary and would “not complete

      said sentence until April 16, 2018” and that he enrolled in and completed the

      PLUS Program “while serving ‘a sentence’ for an offense NOT listed under I.C.

      § 11-8-8-4.5.” Id. at 12. Simpson attached a portion of a DOC manual which

      listed the PLUS Program as an approved reformative program. The State filed

      a response in opposition to Simpson’s petition in which it argued that Simpson

      “was convicted and is serving his sentence, in part, as a result of his conviction

      for Criminal Deviate Conduct, a class B felony, a sex offense enumerated in

      I.C. 11-8-8-4.5” and that he is therefore ineligible for educational credit. Id. at

      33. The court denied Simpson’s petition.


                                                  Discussion

[5]   Simpson claims the trial court should have granted his request for credit time

      under Ind. Code § 35-50-6-3.3. We treat Simpson’s petition as one for relief

      under Ind. Post-Conviction Rule 1. See Stevens v. State, 895 N.E.2d 418, 419

      (Ind. Ct. App. 2008) (noting a request for credit time under Ind. Code § 35-50-6-

      3.3 is treated as a petition for relief under Post-Conviction Rule 1). Simpson is

      appealing from a negative judgment and must convince this court the evidence



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018   Page 3 of 6
      leads unerringly and unmistakably to a decision opposite that reached by the

      trial court. See Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct. App. 2004).


[6]   Simpson argues that he enrolled in and completed the PLUS Program while

      “serving the first sentence for burglary.” Appellant’s Brief at 6. He asserts “the

      DOC is proceeding under the false premise that a person who serves

      consecutive sentences is, in effect, serving a single sentence” and that he “did

      not begin serving ‘a sentence’ enumerated in I.C. § 11-8-8-4.5 until April 17,

      2018, well after he enrolled in and completed the PLUS program.” Id. at 9-10.


[7]   The State maintains that Simpson is not entitled to credit time, he is precluded

      by Ind. Code § 35-50-6-3.3(d)(8) from receiving his requested credit time for

      completion of the PLUS Program due to his conviction for criminal deviate

      conduct, and credit time is applied to or deducted from the aggregate sentence

      imposed and not an individual sentence.


[8]   Ind. Code § 35-50-6-0.5 defines “Educational credit” to mean “a reduction in a

      person’s term of imprisonment or confinement awarded for participation in an

      educational, vocational, rehabilitative, or other program.” Ind. Code § 35-50-6-

      3.3 provides in part that a person may earn educational credit if, while confined

      by the DOC, the person is in credit Class I, Class A, or Class B; demonstrates a

      pattern consistent with rehabilitation; and “successfully completes requirements

      to obtain at least one (1) of the following: . . . (D) A certificate of completion of

      a reformative program approved by the department of correction.” Ind. Code §

      35-50-6-3.3 further provides:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018   Page 4 of 6
              (d)     The amount of educational credit a person may earn under
                      this section is the following:

                                                   *****

                      (8)      Not more than a total of six (6) months, as
                               determined by the department of correction, for
                               completion of one (1) or more reformative programs
                               approved by the department of correction. However,
                               a person who is serving a sentence for an offense listed
                               under IC 11-8-8-4.5 may not earn educational credit
                               under this subdivision.

                                                   *****

              (f)     Educational credit earned by a person under this section is
                      subtracted from the release date that would otherwise apply
                      to the person by the sentencing court after subtracting all
                      other credit time earned by the person.


      (Emphases added). Ind. Code § 11-8-8-4.5, in turn, lists the offense of

      “Criminal deviate conduct (IC 35-42-4-2) (before its repeal).” Ind. Code § 11-8-

      8-4.5(a)(2).


[9]   The Indiana Supreme Court has held that “when consecutive sentences are

      involved, credit time is deducted from the aggregate total of the consecutive

      sentences, not from an individual sentence.” State v. Lotaki, 4 N.E.3d 656, 657

      (Ind. 2014). See also Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999) (“Where a

      defendant is convicted of multiple offenses and sentenced to consecutive terms,

      the jail credit is applied against the aggregate sentence.”). Simpson is

      committed to the DOC for his convictions for burglary and criminal deviate

      conduct, an offense listed under Ind. Code § 11-8-8-4.5. Based on Ind. Code §

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018   Page 5 of 6
       35-50-6-3.3 and in light of Lotaki, he is not entitled to an educational credit.

       Simpson has not established that the evidence leads unerringly and

       unmistakably to a conclusion opposite that reached by the trial court.


                                                   Conclusion

[10]   For the foregoing reasons, we affirm the trial court’s ruling.


[11]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018   Page 6 of 6
