                                                                                       FILED
                                                                                   Apr 10 2017, 9:18 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Jacob L. Maciaszek                                         Curtis T. Hill, Jr.
Greencastle, Indiana                                       Attorney General of Indiana

                                                           Christina D. Pace
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jacob Lee Maciaszek,                                       April 10, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           43A03-1512-CR-2355
        v.                                                 Appeal from the Kosciusko
                                                           Superior Court
State of Indiana,                                          The Honorable David C. Cates,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           43D01-1205-FB-319



May, Judge.




Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017                 Page 1 of 12
[1]   Jacob Lee Maciaszek appeals the trial court’s denial of his request for

      presentence credit time. We affirm in part, reverse in part, and remand.



                                Facts and Procedural History
[2]   On May 22, 2012, the State charged Maciaszek with two counts of Class B

      felony burglary 1 and two counts of Class D felony theft. 2 The next day, the

      State placed a hold on Maciaszek in Collier County, Florida, where he was

      serving a sentence on an unrelated conviction with a release date of August 1,

      2012. When Indiana placed that hold, Maciaszek was already subject to holds

      placed by New Hampshire and Maine, 3 where he also was alleged to have

      committed crimes.


[3]   After completing his sentence in Florida, Maciaszek was transported to New

      Hampshire, where he was found guilty and given a sentence of one-and-a-half

      to six years, with a parole eligibility date of February 27, 2014. On January 10,

      2013, while incarcerated in New Hampshire, Maciaszek filed a Request for

      Disposition of his pending Indiana charges under the Interstate Agreement on

      Detainers (“IAD”), which provides a mechanism for the “attendance of




      1
          Ind. Code § 35-43-2-1(1) (1999).
      2
          Ind. Code § 35-43-4-2(1) (2009).
      3
          The record does not indicate the resolution of the charges in Maine.


      Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 2 of 12
      defendants confined as prisoners in institutions of other jurisdictions of the

      United States” in an Indiana court. Ind. Code § 35-33-10-4 (1981).


[4]   Based on his request, Indiana authorities took custody of Maciaszek on March

      19, 2013, and transported him to Indiana. On August 6, 2013, he pled guilty to

      two counts of Class B felony burglary and was sentenced to sixteen years with

      no credit for time served prior to sentencing (“Indiana Sentence”). The trial

      court ordered Maciaszek “shall be immediately returned to the New Hampshire

      State Prison, Northern Correctional Facility, Berlin, New Hampshire. Upon

      completion of the New Hampshire sentence, authorities of the State of Indiana

      shall be notified and custody of Jacob Maciaszek returned to the State of

      Indiana.” (App. at 9/1. 4)


[5]   On November 5, 2015, Maciaszek filed, pro se, a “Verified Petition for

      Presentence Jail Time Credit and Earned Credit Time,” (id. at 13), arguing he

      should have been given credit on his Indiana Sentence from May 23, 2012,

      when Indiana put a hold on him in Florida, until his sentencing in Indiana on

      August 6, 2013. The trial court did not hold a hearing, and on December 4,

      2015, the trial court denied Maciaszek’s petition.



                                    Discussion and Decision



      4
          “9/1” is the page number as it appears in Maciaszek’s Appendix.


      Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 3 of 12
[6]   We first note Maciaszek proceeded at the trial court level and proceeds in this

      appeal pro se. A litigant who proceeds pro se is held to the same established rules

      of procedure that trained counsel is bound to follow. Smith v. Donahue, 907

      N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a

      litigant takes when he proceeds pro se is that he will not know how to

      accomplish all the things an attorney would know how to accomplish. Id.

      When a party elects to represent himself, there is no reason for us to indulge in

      any benevolent presumption on his behalf or to waive any rule for the orderly

      and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

      Ct. App. 2006).


[7]   Indiana Code Section 35-50-6-3 (2015) provides, regarding good credit time for

      a person convicted of a crime that occurred prior to July 1, 2014:

              (b) A person assigned to Class I earns one (1) day of good time
              credit for each day the person is imprisoned for a crime or
              confined awaiting trial or sentencing.


              (c) A person assigned to Class II earns one (1) day of good time
              credit for every two (2) days the person is imprisoned for a crime
              or confined awaiting trial or sentencing.


              (d) A person assigned to Class III earns no good time credit.


              (e) A person assigned to Class IV earns one (1) day of good time
              credit for every six (6) days the person is imprisoned for a crime
              or confined awaiting trial or sentencing.




      Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017    Page 4 of 12
[8]    As our Indiana Supreme Court has noted, when a defendant challenges the

       validity of the pre-sentence credit time he received, there are two types of credit

       that must be calculated: “(1) the credit toward the sentence a prisoner receives

       for time actually served, and (2) the additional credit a prisoner receives for

       good behavior and educational attainment.” Purcell v. State, 721 N.E.2d 220,

       222 (Ind. 1999). We will refer herein to these two distinct types of credit as

       “credit for actual time served” and “good time credit.”


[9]    To determine whether a prisoner is entitled to pre-trial credit for actual time

       served, we must determine whether the defendant was confined before trial and

       whether that confinement was the “result of the criminal charge for which [the]

       sentence is being imposed.” Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.

       App. 2000), trans. denied. See Ind. Code § 35-50-6-3 (requiring defendant be

       “confined awaiting trial or sentencing”). Thus, for example,

               [i]f a person incarcerated awaiting trial on more than one charge
               is sentenced to concurrent terms for the separate crimes, he or
               she is entitled to receive credit time applied against each separate
               term. However, if the defendant receives consecutive terms, he
               or she is only allowed credit time against the total or aggregate of
               the terms.


       Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005), trans. denied.


[10]   Once we have determined whether a prisoner was entitled to credit for actual

       time served and, if so, how many days were earned, then we may turn to

       Indiana Code Section 35-50-6-3 to determine how many days of good time

       credit were also earned. Good time credit under that statute is a “matter of
       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 5 of 12
       statutory right, not a matter of judicial discretion.” Weaver v. State, 725 N.E.2d

       945, 948 (Ind. Ct. App. 2000). The trial court simply calculates how many

       good time credit days the defendant earned based on the number of days of

       actual time served and the defendant’s “Class,” as defined in Indiana Code

       Section 35-50-6-4.


       Here, Maciaszek asserts error in the calculation of presentence credit time. At

       issue are two different periods of time: (1) when he was incarcerated in foreign

       jurisdictions from May 23, 2012, to March 18, 2013, and (2) when he was

       incarcerated in Indiana awaiting trial and sentencing from March 19, 2013, to

       August 6, 2013. Within each of those periods of time, we will examine

       Maciaszek’s requests for “credit time” in terms of “credit for actual time

       served” and “good credit time.”


       I. Presentence Credit for Time Incarcerated in Foreign Jurisdictions


[11]   Maciaszek was in jail for an unrelated charge in Florida at the time Indiana put

       a hold on him for the crimes alleged in Indiana. The Indiana hold was

       subsequent to holds placed by New Hampshire and Maine for crimes he

       allegedly committed in those states. After Florida released Maciaszek, he was

       transported to New Hampshire, where he was found guilty of the charged

       crimes and sentenced to one-and-a-half to six years incarcerated.


[12]   Maciaszek argues he should receive credit for actual time served and good time

       credit on his Indiana Sentence for the time he spent incarcerated in Florida and



       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 6 of 12
New Hampshire prior to his Indiana Sentence. Maciaszek relies on a portion of

Dolan v. State, 420 N.E.2d 1364 (Ind. Ct. App. 1981), in which we stated:


        Where a defendant is confined during the same time period for
        multiple offenses and the offenses are tried separately, the
        defendant is entitled to a “full credit” for each offense for which
        he is sentenced. Each “full credit” is determined by the number
        of days the defendant spent in confinement for the offense for
        which the defendant is sentenced up to the date of sentencing for
        that offense. Ordinarily, the presentence time served credit
        whether the defendant is held on one or multiple offenses is
        determined by the same method. The credit will be the number
        of days the defendant spent in confinement from the date of
        arrest for the offense to the date of sentencing for that same
        offense.


Id. at 1373. However, Maciaszek ignores the other language in Dolan:


        Although IC 35-50-6-3 states a defendant is allowed credit for
        time “confined awaiting trial or sentencing,” we conclude the
        Legislature clearly intended the credit to apply only to the
        sentence for the offense for which the presentence time was
        served. Any other result would allow credit time for time served
        on wholly unrelated offenses. Under the criminal justice system,
        once convicted, the defendant must serve the sentence imposed
        for the offense committed. Credit time allowed by legislative
        grace toward a specific sentence clearly must be for time served
        for the offense for which that specific sentence was imposed.


Id. Our court concluded Dolan was not entitled to presentence credit time on

his sentence in one county for time spent in jail on an unrelated charge in

another county.



Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 7 of 12
[13]   We recently applied Dolan to a case involving credit for actual time served in

       Purdue v. State, 51 N.E.3d 432 (Ind. Ct. App. 2016). In Purdue, the trial court

       denied Purdue credit for actual time served awaiting trial for Level 6 felony

       theft because he was also serving time on two offenses that were dismissed as

       part of his plea agreement. Our court reasoned those two offenses, though not

       committed at the same time, were not “wholly unrelated” under Dolan, 420

       N.E.2d at 1373, as to deny Purdue presentence credit for actual time served for

       the theft charge because “the three cause numbers, and the underlying charges

       of each, were considered together during the give and take process of plea

       negotiations.” Purdue, 51 N.E.3d at 438.


[14]   The same is not true here, where the charges Maciaszek faced in Indiana were

       not related to those with which he had been convicted in Florida and New

       Hampshire. Further, Purdue distinguished its holding from situations like

       Maciaszek’s in noting Purdue “did not ask the trial court to grant accrued time

       for confinement spent in another state or another county.” Id. at 438. We thus

       hold the trial court did not err when it refused Maciaszek’s request for credit

       time 5 for the days he served in Florida and New Hampshire on unrelated

       charges from May 23, 2012, to March 18, 2013.


       II. Presentence Credit Time for Time Spent in Indiana Awaiting Trial




       5
         As Maciaszek is not entitled to credit for actual time served against his Indiana Sentence, he is also not
       entitled to good time credit, which allows for extra days of credit based on the credit class of the offender and
       the actual days the offender served. See Ind. Code § 35-50-6-3 (good credit time statute).

       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017                           Page 8 of 12
[15]   Maciaszek also contends he is entitled to presentence credit time from March

       19, 2013, to August 6, 2013. Those are the days he spent in Indiana,

       specifically at the Kosciusko County Jail, after he was extradited from New

       Hampshire to stand trial for the charges against him in Indiana.


       A. Credit for Actual Time Served


[16]   Maciaszek’s facts closely parallel those in Ramirez v. State, 455 N.E.2d 609 (Ind.

       Ct. App. 1983), cert. granted sub nom. Ramirez v. Indiana, 469 U.S. 929 (1984),

       judgment summarily affirmed without opinion sub nom. Ramirez v. Indiana, 471 U.S.

       147 (1985), reh’g denied. Ramirez was incarcerated in Michigan when he was

       transported to Indiana to stand trial for charges filed against him in Indiana.

       He was convicted of the Indiana charges and sentenced accordingly. Ramirez

       then petitioned the trial court for credit time against his Indiana sentence for the

       time he was incarcerated in Michigan prior to his sentence as well as the time

       he was in jail in Indiana awaiting trial. The trial court denied Ramirez’s

       request, and he appealed.


[17]   Like in Dolan, the court held Ramirez was not entitled to presentence credit for

       the days he served in Michigan on a Michigan conviction. Id. at 617.

       However, the court held Ramirez was entitled to credit time for the days he

       spent in jail in Indiana awaiting trial on Indiana charges. Id. The court stated:


               The State argues because Ramirez apparently received credit
               against his Michigan sentence for the days he was in the Howard
               County Jail awaiting trial and sentencing on the Indiana drug
               charges, he is not entitled to also receive credit time for those

       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 9 of 12
               days in Indiana. The State is incorrect. There is no indication
               the sentences in [the Indiana drug convictions] were to run
               consecutively to the Michigan sentence. Because the Michigan
               and Indiana sentences must therefore be assumed to be
               concurrent, it would appear Ramirez was entitled to have the 322
               days [he spent in the Howard County Jail awaiting trial and
               sentencing on the Indiana drug charges] credited to both his
               Michigan sentence and to the aggregate of the two Indiana
               sentences.


       Id. (citations and footnote omitted).


[18]   The same is true here. In its “Amended Judgment of Conviction and Order of

       Commitment” the trial court stated: “[Maciaszek] shall be immediately

       returned to the New Hampshire State Prison, Northern Correctional Facility,

       Berlin, New Hampshire. Upon completion of the New Hampshire sentence,

       authorities of the State of Indiana shall be notified and custody of Jacob

       Maciaszek returned to the State of Indiana.” (App. at 9/1.) That language

       does not indicate Maciaszek’s Indiana Sentence was to be served consecutive to

       his sentence in New Hampshire. Nor was there language in Maciaszek’s plea

       agreement to indicate his Indiana Sentence was to be served consecutive to his

       New Hampshire sentence. Thus, as in Ramirez, we must conclude the Indiana

       and New Hampshire sentences were to be served concurrently. We also must

       conclude, as in Ramirez and Dolan that Maciaszek is entitled to credit for actual

       time served in the Kosciusko County Jail awaiting trial on the Indiana charges.

       See Dolan, 420 N.E.2d at 1374 (absence of court order or statute to indicate

       sentences in two jurisdictions are to be served consecutively leads to the


       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 10 of 12
       conclusion the sentences are to be served concurrently; therefore, Dolan was

       entitled to presentence credit time for time spent in jail awaiting trial while still

       receiving credit against his sentence in a different jurisdiction).


[19]   Maciaszek was in the Kosciusko County Jail from March 19, 2013, until

       August 6, 2013, and the trial court erred by not giving Maciaszek credit for

       actual time served for those 141 days.


       B. Good Time Credit


[20]   Because Maciaszek is entitled to credit for actual time served against the

       Indiana Sentence for the days he spent in Indiana awaiting trial on the Indiana

       charges, the trial court also should have determined whether Maciaszek was

       assigned to a credit class, as defined in Indiana Code Section 35-50-6-4 (2008),

       that allows him to also receive good time credit for those days. See Ind. Code §

       35-50-6-3. We are unable to determine whether Maciaszek is to receive good

       time credit because the record before us does not indicate Maciaszek’s credit

       class. We therefore remand for the trial court to determine Maciaszek’s credit

       class under Indiana Code Section 35-50-6-4 and to assign him the number of

       good time credit days to which he is entitled under Indiana Code Section 35-50-

       6-3. 6 See Robinson v. State, 805 N.E.2d 783, 792 (Ind. 2004) (“a trial court’s




       6
         In his initial brief, Maciaszek argued he is also entitled to post-sentence credit for the time he spent in
       Indiana after sentencing awaiting extradition to New Hampshire. In his reply brief, he acknowledged the
       waiver of that argument based on the fact he presented the issue for the first time on appeal, and he withdrew
       that issue from our consideration.

       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017                       Page 11 of 12
       sentencing judgment must include both days imprisoned before sentencing and

       the credit time earned thereby, thus reflecting any credit time deprivation

       imposed before sentencing”).



                                                 Conclusion
[21]   The trial could did not err when it denied Maciaszek’s request for presentence

       credit for actual time served or for good time credit based on the time he spent

       incarcerated in Florida and New Hampshire prior to his extradition to Indiana.

       However, the trial court should have granted Maciaszek’s request for

       presentence credit for actual time served and good time credit for the time he

       spent in Indiana awaiting trial on the Indiana charges. Accordingly, we affirm

       in part, reverse in part, and remand for amendment of Maciaszek’s sentencing

       order to reflect a proper calculation of credit time.


[22]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 43A03-1512-CR-2355 | April 10, 2017   Page 12 of 12
