Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                    Dec 24 2014, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DONALD E.C. LEICHT                              GREGORY F. ZOELLER
Kokomo, Indiana                                 Attorney General of Indiana

                                                JUSTIN F. ROEBEL
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TONY R. EVANS,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 34A02-1407-CR-481
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable William C. Menges, Judge
                            Cause No. 34D01-0506-FB-130


                                    December 24, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                                    STATEMENT OF THE CASE

          Tony R. Evans appeals from the trial court’s order revoking Evans’s suspended

sentence. We affirm.

                                            ISSUE

          Evans presents the following issue for our review:

          Whether the trial court abused its discretion by denying Evans credit time
          under this cause number.


                                   FACTS AND PROCEDURAL HISTORY

          Evans faced multiple felony charges and one misdemeanor charge filed against

him in Howard County in June 2005. On April 18, 2007, pursuant to a plea agreement,
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Evans pleaded guilty to one count of Class B felony dealing in cocaine under cause

number 34D01-0506-FB-130 (“FB-130”). The plea agreement also required Evans to

plead guilty to a charge under another cause number. In return, the State agreed to

dismiss the remaining charges against Evans under FB-130.              The plea agreement

provided that Evans would be sentenced to ten years in the Department of Correction

under FB-130 with six years executed and four years suspended to probation. The trial

court accepted the plea agreement and sentenced Evans according to the terms of the plea

agreement.

          On February 18, 2009, the trial court modified Evans’s sentence by granting him a

direct placement in the Howard County Community Transition Program. Thereafter, on


1
    Ind. Code §35-48-4-1 (2001).


                                               2
July 20, 2009, Evans was placed on probation.

       On November 17, 2009, the State filed a petition to revoke Evans’s suspended

sentence. On May 26, 2010, Evans admitted the violation of his suspended sentence.

Pursuant to a plea agreement resolving new charges against Evans and the violation,

Evans was placed in the Howard County Drug Court Program and further proceedings

were deferred. On April 18, 2012, Evans graduated from the program and was returned

to probation under FB-130.

       On January 7, 2013, the State filed a second petition to revoke Evans’s suspended

sentence under FB-130. On April 25, 2013, the parties filed a plea bargain, which the

trial court rejected on May 30, 2013. On September 26, 2013, the State filed a motion to

dismiss the second petition, a motion the trial court granted that same day.

       On December 19, 2013, the State filed a third petition to revoke Evans’s

suspended sentence. On May 1, 2014, the parties submitted a plea agreement to the trial

court, but that recommendation was rejected. On June 26, 2014, Evans admitted the

allegation.   The trial court accepted Evans’s plea and ordered Evans to serve his

suspended sentence of 1,460 days in the Indiana Department of Correction. The trial

court’s order expressly stated that Evans was to receive no credit time while awaiting

disposition under FB-130 because it appeared that the credit time was being applied to

the other charges. Evans now appeals the denial of credit time under FB-130.

                             DISCUSSION AND DECISION

       Evans contends that the trial court abused its discretion by denying him credit time

under FB-130 after ordering Evans to serve his suspended sentence in the Indiana

                                             3
Department of Correction.      However, “pre-sentence jail time credit is a matter of

statutory right, not a matter of judicial discretion.” Weaver v. State, 725 N.E.2d 945, 948

(Ind. Ct. App. 2000). Therefore, we will review the trial court’s decision not to award

Evans pre-sentence jail time credit under FB-130 to determine if the sentence imposed is

facially defective. See id. (“Indeed, a sentence that violates express statutory authority is

facially defective.”)

       According to Indiana Code section 35-50-6-3 (1977), a person assigned to Class I

earns one day of credit time for each day he is imprisoned for a crime or confined

awaiting trial or sentencing. “When a defendant is incarcerated on multiple unrelated

charges at the same time, it is possible that a period of confinement may be the result of

more than one offense.” Diedrich v. State, 744 N.E.2d 1004, 1005 (Ind. Ct. App. 2001).

“If a person is incarcerated awaiting trial on more than one charge and is sentenced to

concurrent terms for the separate crimes, he is entitled to credit time applied against each

separate term.” Hall v. State, 944 N.E.2d 538, 542 (Ind. Ct. App. 2011). “However,

‘[w]here a defendant is convicted of multiple offenses and sentenced to consecutive

terms, the jail credit is applied against the aggregate sentence.’” Id. (quoting Shane v.

State, 716 N.E.2d 391, 400 (Ind. 1999)).

       Indiana Code section 35-50-1-2(d) (2005) provides in pertinent part that “[i]f, after

being arrested for one (1) crime, a person commits another crime: (1) before the date the

person is discharged from probation, parole, or a term of imprisonment imposed for the

first crime . . . the terms of imprisonment for the crimes shall be served consecutively. . .

.” “[W]here consecutive sentences are required, credit time cannot be earned against

                                             4
each of the underlying sentences.” Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App.

2009).

         The trial court in this case found that Evans’s requested credit time applied to

other charges and therefore could not be applied to the probation revocation. Although

Evans argues that the trial court abused its discretion by doing so, Evans has failed to

provide us with a complete record. “A failure to provide a complete record may result in

a waiver of the issue.”      Reed v. State, 702 N.E.2d 685, 689 (Ind. 1998).       Indiana

Appellate Rule 50(A)(2) requires an appellant to provide copies of all relevant orders and

judgments in the Appendix. Without copies of the petitions for revocation and copies of

arrest warrants from which we could determine the connections between alleged

probation violations and new offenses, we are unable to assess whether the trial court’s

decision is erroneous.

         What we are able to determine from the record before us is that it appears each of

the petitions to revoke Evans’s probation was based on a new criminal charge or charges.

Because the sentences for any new criminal offenses committed while Evans was on

probation would have to be served consecutively, he would not be entitled to jail credit

time on both the probation violation and under the new cause numbers. In State v.

Lotaki, 4 N.E.3d 656, 657 (Ind. 2014), our Supreme Court reiterated that an “award of

credit time with respect to a mandatory consecutive sentence was error, and conflicts with

our precedent.” (citing Corn v. State, 659 N.E.2d 554, 558-59 (Ind. 1995)).

         The trial court was permitted to take judicial notice of other cases involving

Evans. See Ind. Evidence Rule 201. The records supplied by Evans on appeal reflect

                                              5
references to five related cause numbers under which credit time could have been

received. Additionally, Evans presents no evidence to refute the inference that he was in

custody due to the new charges, or that his credit time was not applied to those new

charges. Further, the record before us does not clearly reflect the dates of Evans’s

incarceration or the cause numbers for which he was incarcerated. Consequently, neither

the trial court nor this Court can discern the amount of credit time to which Evans might

be entitled. Evans has not provided us with a record adequate to support his contentions

and to contradict the trial court’s findings and decision.

                                      CONCLUSION

       In light of the above, we affirm the trial court’s decision.

       Affirmed.

       BAKER, J., and PYLE, J., concur.




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