MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Mar 31 2016, 9:08 am
this Memorandum Decision shall not be
                                                                                   CLERK
regarded as precedent or cited before any                                      Indiana Supreme Court
                                                                                  Court of Appeals
court except for the purpose of establishing                                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Joshua Hopper                                            Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua Hopper,                                           March 31, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         37A03-1509-CR-1452
        v.                                               Appeal from the Jasper Circuit
                                                         Court
State of Indiana,                                        The Honorable John D. Potter,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause Nos.
                                                         37C01-1202-FA-195 and
                                                         37C01-1112-FD-1181



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016            Page 1 of 6
                                       Statement of the Case
[1]   Joshua Hopper appeals the trial court’s dismissal of his petitions for jail time

      credit. He raises one issue on appeal, namely, whether the trial court erred

      when it held that he had waived his claim for jail time credit.


[2]   We reverse and remand for further proceedings.


                                 Facts and Procedural History
[3]   On December 5, 2011, the State charged Hopper in Cause No. 37C01-1112-FD-

      1181 (“FD-1181”) with theft, as a Class D felony. On February 24, 2012, the

      State charged Hopper in Cause No. 37C01-1202-FA-195 (“FA-195”) with:

      count I, dealing methamphetamine, as a Class A felony; count II, possession of

      two or more chemical reagents or precursors with the intent to manufacture

      methamphetamine, as a Class C felony; and count III, dealing in a substance

      represented to be a controlled substance, as a Class D felony. On May 2, 2012,

      the parties entered into a plea agreement whereby Hopper pleaded guilty to

      theft, as a Class D felony in FD-1181 and dealing methamphetamine, as a Class

      A felony in FA-195, and the State dismissed the remaining charges. The trial

      court accepted the plea and, at a sentencing hearing on May 29, the court

      sentenced Hopper to consecutive sentences of fifteen years, with five years

      suspended to probation, for the Class A felony conviction in FA-195 and 180

      days for the Class D felony conviction in FD-1181. The trial court credited

      Hopper with forty-eight days for previously-served jail time.




      Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016   Page 2 of 6
[4]   On July 20, 2015, Hopper filed in FA-195 a petition for jail time credit alleging

      that he was entitled to a total of ninety-seven days of credit in that cause, rather

      than the forty-eight days the court had credited to him. On the same date, he

      filed in FD-1181 a petition for jail time credit alleging that he was entitled to a

      total of fifty-one days of credit in that cause, but that the court had granted him

      no credit.1 The State filed a response to these motions and agreed that Hopper

      was entitled to additional jail time credit under both causes.


[5]   In an August 17 order, the trial court summarily dismissed both of Hopper’s

      credit time motions on the grounds that Hopper had waived his additional jail

      time credit when neither he nor his counsel objected or voiced any concerns at

      the sentencing hearing. In its order, the trial court noted that, at the sentencing

      hearing, Hopper had been provided with a copy of the previously prepared pre-

      sentence investigation report, which included on its front page a calculation of

      Hopper’s jail-time credit of a total of forty-eight days. The trial court also noted

      that it had asked Hopper and his counsel if they had reviewed and received the

      pre-sentence investigation report, and they had answered in the affirmative.

      The trial court had also asked Hopper and his counsel whether there were any

      additions, deletions, or corrections to be made to the pre-sentence investigation

      report, and Hopper had made no objection or mention of the amount of credit

      time. The court concluded that Hopper had waived any additional jail time



      1
        We note that, if “a defendant is convicted of the multiple offenses for which he has been held [while
      awaiting trial] and receives consecutive sentences for them,” as is the case here, “the pre-sentencing jail time
      credit is applied against the total aggregate sentence, i.e., against only one of the sentences.” Hall v. State, 944
      N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016                   Page 3 of 6
      credit by failing to raise it at the sentencing hearing “when the issue was before

      the Court and spelled out in front of the parties and counsel.” Appellant’s App.

      at 7. This appeal ensued.


                                        Discussion and Decision
[6]   Hopper contends that the trial court erred when, rather than deciding the merits

      of his jail time credit petitions, it summarily dismissed the petitions on the

      grounds that Hopper had waived the claims by failing to raise them at the

      sentencing hearing. We must agree.


[7]   This court has held that


               any time a defendant whose liberty has been restricted through
               imprisonment or confinement requests a trial court to reconsider
               its previous award of jail time credit, and the defendant’s motion
               in this regard identifies a sufficient factual basis for his eligibility,
               the court must address the merits of such motion.


      Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000) (emphasis original).

      As we observed in Weaver, Indiana Code Section 35-50-6-32 provides, “without

      qualification or exception,” that a person imprisoned for a crime or confined

      awaiting trial or sentencing “earns one (1) day of good time credit for each day

      [he] is imprisoned for a crime or confined awaiting trial or sentencing.” Id. at

      947. And, “we must assume from the plain language of this provision that a




      2
       The statute in effect in 2012, the relevant time in this case, contained the same language as that cited in
      Weaver.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016                Page 4 of 6
      trial court has no discretion in the granting or denial of pre-sentence jail time

      credit.” Id. Rather, a defendant is entitled to such credit time “as a matter of

      statutory right, not a matter of judicial discretion.” Id. at 948.


[8]   Here, Hopper’s petitions for jail time credit identified sufficient factual bases for

      his eligibility for such credit. Indeed, the State filed responses agreeing with

      Hopper’s assertions. Hopper noted that, on December 18, 2011, he was

      arrested pursuant to a warrant issued under FD-1181 and incarcerated in the

      Pulaski and Jasper County Jails. He was released on bail on February 7, 2012,

      and he was convicted and sentenced on May 29, 2012. Thus, he alleged, he

      spent a total of fifty-one days in pre-trial confinement under FD-1181.

      Similarly, Hopper noted that he was arrested and confined to jail under FA-195

      on February 22, 2012 and convicted and sentenced on May 29, therefore

      spending a total of ninety-seven days in pretrial confinement under FA-195.

      These are sufficient factual bases to demonstrate eligibility for credit time.

      Therefore, regardless of whether Hopper raised the issue of additional jail time

      credit at his sentencing,3 he is entitled as a matter of statutory law to a trial

      court determination of the merits of his claims for jail time credit. The trial




      3
         Although the State agreed in the trial court that Hopper was entitled to additional jail time credit, on
      appeal the State contends that any error in the calculation of Hopper’s jail time credit was “invited” by
      Hopper’s failure to raise the error at sentencing and was therefore waived. The State’s claim is without merit.
      The “invited error” doctrine does not apply to a request to reconsider a previous award of jail time credit
      because such a request necessarily involves a claim that the challenged credit award exceeded statutory
      authority—as Hopper claims in his petitions for jail time credit—and such a sentence constitutes fundamental
      error that is appealable at any time. See, e.g., Collins v. State, 835 N.E.2d 1010, 1017 (Ind. Ct. App. 2005),
      trans. denied (holding that “an illegal sentence that is invited nevertheless is subject to the fundamental error
      exception,” and is therefore appealable at any time).

      Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016                Page 5 of 6
       court erred in summarily dismissing his motions. See Weaver, 725 N.E.2d at

       949.


[9]    We reverse and remand for a determination on the merits of Hopper’s petitions

       for jail time credit in both causes.


[10]   Reversed and remanded for further proceedings.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1509-CR-1452 | March 31, 2016   Page 6 of 6
