                                                                          FILED
                                                                      Nov 08 2018, 7:36 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Jacob L. Maciaszek                                        Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jacob L. Maciaszek,                                       November 8, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-939
        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



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                           Page 1 of 14
                                             Case Summary
[1]   Jacob L. Maciaszek (“Maciaszek”) appeals, pro se, his sentence, following a

      guilty plea, for two counts of burglary, as Class B felonies.1 He raises two issues

      on appeal, but we consider only the dispositive issue of whether the trial court

      abused its discretion when it ordered that Maciaszek’s sentence be served

      consecutively to his sentence imposed by the State of New Hampshire.


[2]   We reverse and remand.



                               Facts and Procedural History
[3]   In a decision dated April 10, 2017, this court set forth the following facts and

      procedural history of Maciaszek’s prior appeal from the denial of credit time in

      this case:


                On May 22, 2012, the State charged Maciaszek with two counts
                of Class B felony burglary and two counts of Class D felony theft.
                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, where he also
                was alleged to have committed crimes.


                After completing his sentence in Florida, Maciaszek was
                transported to New Hampshire, where he was found guilty and




      1
          Ind. Code § 35-43-2-1(1) (2011).


      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018       Page 2 of 14
              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 defendants confined as prisoners in
              institutions of other jurisdictions of the United States” in an
              Indiana court. Ind. Code § 35-33-10-4 (1981).


              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 [sic]).


              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.


      Maciaszek v. State, 75 N.E.3d 1089, 1090-91 (Ind. Ct. App. 2017) (footnotes

      omitted), trans. denied (hereinafter, “Maciaszek I”).


[4]   In Maciaszek I, we held that Maciaszek was entitled to credit time for actual

      time served in Indiana while awaiting trial on the Indiana charges, i.e., 141

      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018      Page 3 of 14
      days, and to a determination of his credit class and good time credit due. Id. at

      1094. In reaching this holding, we noted that the trial court’s judgment of

      conviction did not indicate whether his Indiana sentence was to be served

      consecutively to his New Hampshire conviction. Therefore, we stated: “we

      must conclude the Indiana and New Hampshire sentences were to be served

      concurrently.” Id. We ordered the trial court, on remand, to award Maciaszek

      the credit for actual time served and to determine any good time credit due to

      him. Id. at 1095.


[5]   On remand, on July 17, 2017, the trial court amended its judgment of

      conviction to award Maciaszek 141 days of credit for actual time served, and

      another 141 days for good time credit, for a total credit of 282 days.

      Appellant’s App. at 42. On March 14, 2018, the trial court, sua sponte, issued

      another amended judgment of conviction which stated:


              PURSUANT TO I.C. 35-50-1-2[,] [j]udgment entered herein
              shall be served consecutively to the sentence imposed by the State
              of New Hampshire for which Defendant was serving a suspended
              sentence revocation at the time of the instant offense herein.


      Id. at 43. Maciaszek now appeals that amended judgment.



                                 Discussion and Decision
                                        Standard of Review
[6]   Maciaszek appeals the trial court’s order that he serve his sentence

      consecutively to his sentence in New Hampshire. “The decision to impose
      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018      Page 4 of 14
      consecutive or concurrent sentences lies within the trial court’s sound

      discretion, and, on appeal, we review the trial court’s decision only for an abuse

      of that discretion.” Henderson v. State, 44 N.E.3d 811, 814 (Ind. Ct. App. 2015).

      An abuse of discretion occurs when the trial court’s decision is clearly against

      the logic and effect of the facts and circumstances before the court, “or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Gross v.

      State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied. The defendant

      “has the burden to establish that prejudicial error was committed.” Nasser v.

      State, 727 N.E.2d 1105, 1110 (Ind. Ct. App. 2000), trans. denied. However,

      because we already decided this same issue in a prior appeal of this case, the

      law of the case doctrine bars the trial court from reconsidering it.


                                           Law of the Case
[7]   The “law of the case doctrine” is a discretionary tool by which appellate courts

      decline to revisit legal issues already determined on appeal in the same case and

      on substantially the same facts. Wells Fargo Bank, N.A. v. Summers, 974 N.E.2d

      488, 502 (Ind. Ct. App. 2012) (quotation and citation omitted), trans. denied.

      Under that doctrine, the decision of an appellate court becomes the law of the

      case and governs the case throughout all of its subsequent stages, as to all

      questions which were presented and decided, both directly and indirectly. E.g.,

      Terex-Telelect, Inc. v. Wade, 59 N.E.3d 298, 303 (Ind. Ct. App. 2016), trans.

      denied. However, to invoke the law of the case doctrine, “the matters decided in

      the prior appeal must clearly appear to be the only possible construction of the

      opinion.” Travelers Cas. & Sur. Co. v. Maplehurst Farms, Inc., 18 N.E.3d 311, 315

      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018       Page 5 of 14
      (Ind. Ct. App. 2014) (quoting Riggs v. Burell, 619 N.E.2d 562, 564 (Ind. 1993)),

      trans. denied.


[8]   Here, there is no question that this court already decided that the Indiana and

      New Hampshire sentences run concurrently;2 we stated “the Indiana and New

      Hampshire sentences were to be served concurrently.” Maciaszek I at 1094.

      That holding is unambiguous, with only one possible construction. And that

      holding was key to our ultimate determination that Maciaszek was entitled to

      actual credit time for the period during which he was incarcerated in Indiana

      awaiting trial. Id. at 1092 (quoting Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct.

      App. 2005), trans. denied, for the proposition that “[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”).


[9]   However, the State contends, and the trial court held, that consecutively

      running sentences were required in this case under Indiana Code Section 35-50-

      1-2(e)3 because Maciaszek was “serving a suspended sentence revocation [in

      New Hampshire] at the time of the [Indiana] offense.” Appellant’s App. at 43.




      2
        Although Maciaszek, who appeals pro se, did not use the term “law of the case doctrine” in his briefs, he
      nevertheless raised that issue when he argued that our ruling in Maciaszek I was controlling and the trial court
      was bound by it. See Appellant’s Br. at 9, 13; Appellant’s Reply Br. at 8-9, 11-12, 14.
      3
        Indiana Code Section 35-50-1-2(e) provides that terms of imprisonment must run consecutively if, after
      being arrested for one crime, a person commits another crime either (1) before the person is discharged from
      probation, parole, or imprisonment imposed for the first crime, or (2) while the person is released on bond or
      his own recognizance for the first crime.

      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                                 Page 6 of 14
       That specific issue was not raised or decided in Maciaszek I, nor was the relevant

       fact—i.e., whether Maciaszek was serving a suspended sentence or revocation

       of the same in New Hampshire at the time he committed the Indiana offense—

       presented in Maciaszek I. Therefore, if that is indeed a new fact, the law of the

       case doctrine would have no application here. See In re Change to Established

       Water Level of Lake of Woods in Marshall Cty., 822 N.E.2d 1032, 1044 (Ind. Ct.

       App. 2005) (citing Fair Share Org., Inc. v. Mitnick, 198 N.E.2d 765, 766 (Ind.

       1964)) (“Indeed, where new facts are elicited upon remand that materially affect

       the questions at issue, the court upon remand may apply the law to the new

       facts as subsequently found.”), trans. denied.


[10]   There is no evidence of any new, material fact in the matter of Maciaszek’s

       sentencing. The Indiana presentence investigation report (PSI)4 shows that

       Maciaszek committed the Indiana crime on December 10, 2011. Appellant’s

       App. at 7. However, the PSI shows that New Hampshire did not sentence

       Maciaszek until November 20, 2012, almost one year after he committed the

       Indiana crime.5 Therefore, at the time of the Indiana offense, Maciaszek could

       not have had his New Hampshire sentence suspended or had the suspension




       4
           It appears that the PSI was not a part of the record in Maciaszek I.
       5
         The PSI also shows that Florida had not arrested or sentenced Maciaszek at the time he committed the
       Indiana offenses. Id.

       Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                           Page 7 of 14
       revoked, as the trial court incorrectly found,6 and there is no basis for applying

       Indiana Code Section 35-50-1-2(e) to this case.7


[11]   However, there is a difference of opinion among our panel as to whether our

       prior decision in this case was in error. In Maciaszek I, we relied upon Ramirez v.

       State, 455 N.E.2d 609, 617 (Ind. Ct. App. 1983), cert. granted sub nom. Ramirez v.

       Indiana, 469 U.S. 929 (1984), judgment summarily aff’d without opinion, 471 U.S.

       147 (1985), reh’g denied, for the proposition that, where there is no indication

       whether sentences for different crimes in different jurisdictions are to run

       consecutively or concurrently, we assume the sentences are to run concurrently.

       Although Ramirez was summarily affirmed by the United States Supreme

       Court, Indiana cases decided since Ramirez have clearly held “there is no right

       to serve concurrent sentences for different crimes in the absence of a statute so

       providing, and that concurrent sentences may be ordered only when they are to

       be served at the same institution.” Sweeney v. State, 704 N.E.2d 86, 110 (Ind.

       1998) (quoting Shropshire v. State, 501 N.E.2d 445, 446 (Ind. 1986)); see also Perry

       v. State, 921 N.E.2d 525, 527 (Ind. Ct. App. 2010) (“Perry has failed to cite and




       6
         Nor is there any evidence that Maciaszek had been arrested for the New Hampshire crime at the time he
       committed the Indiana crime. Id.
       7
         Because we reverse the trial court’s amended judgment of conviction, we need not address Maciaszek’s
       claim that he had a right, pursuant to Indiana Code Section 35-38-1-15, to be present at the correction of his
       sentence. However, we note that Ind. Code § 35-38-1-15 “is applicable only when a defendant files a motion
       to correct an erroneous sentence.” Ousley v. State, 807 N.E.2d 758, 760 (Ind. Ct. App. 2004). Here, the
       court’s resentencing order followed this court’s prior decision and not a motion to correct erroneous record,
       Appellant’s App. at 53. See Davis v. State, 978 N.E.2d 470, 473 (Ind. Ct. App. 2012) (finding statute
       inapplicable under similar procedural posture).

       Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                               Page 8 of 14
       we have found no controlling precedent authorizing an Indiana court to order a

       sentence to run concurrent with a sentence being served in another state.”).8


[12]   Regardless of whether Maciaszek I was erroneously decided, we hold that the

       law of the case doctrine requires that that decision controls in this case.9

       Indiana applies the law of the case doctrine “in its strictest sense and has

       resisted creating exceptions to the strict application of the doctrine.” Ind.-Ky.

       Elec. Corp. v. Save the Valley, Inc., 953 N.E.2d 511, 518 (Ind. Ct. App. 2011)

       (citing Ind. Farm Gas Prod. Co. v. S. Ind. Gas & Elec. Co., 662 N.E.2d 977, 981

       (Ind. Ct. App. 1996), trans. denied), trans. denied. And “Indiana courts have held

       numerous times that the law of the case must be followed even when the earlier

       decision is deemed to be incorrect.” Id. (emphasis added). We have recognized a

       narrow exception when application of the law of the case doctrine would “work

       a manifest injustice.” Ind. Farm Gas Prod. Co., 662 N.E.2d at 981; see also E.H.

       Schopler, Annotation, Erroneous Decision as Law of the Case on Subsequent

       Appellate Review, 87 A.L.R. 2d 271, § 15[a] (noting that courts will apply the law

       of the case doctrine even to an erroneous prior decision where, among other

       things, a correction of the former error would create a hardship or where the

       prior decision resulted in a change in a party’s status upon which the party

       relied).




       8
         We note that Ramirez involved two different crimes and sentences within two different jurisdictions of
       Indiana.
       9
           We note that neither Sweeney, Shropshire, nor Perry involved the application of the law of the case doctrine.


       Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                                  Page 9 of 14
[13]   Here, it would create a hardship and work a manifest injustice to Maciaszek if

       we did not apply the law of the case doctrine, in that he would be subject to

       additional incarceration time. Therefore, we apply that doctrine.



                                                Conclusion
[14]   The trial court was barred from revisiting whether Maciaszek’s Indiana and

       New Hampshire sentences run consecutively, as we already decided in

       Maciaszek I that they do not, there are no new facts that materially affect our

       prior decision, and it would work a hardship on Maciaszek and result in a

       manifest injustice if we failed to apply the law of the case doctrine in this case.


[15]   Reversed and remanded for resentencing.


       Mathias, J., concurs.
       Bradford, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018       Page 10 of 14
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jacob L. Maciaszek,                                       Court of Appeals Case No.
                                                                18A-CR-939
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff.




      Bradford, Judge, dissenting.


[1]   Because I believe that application of the law of the case doctrine results in the

      imposition of an illegal sentence, I respectfully dissent and vote to affirm the

      trial court.


[2]   The Indiana Supreme Court has established “that there is no right to serve

      concurrent sentences for different crimes in the absence of a statute so

      providing, and that concurrent sentences may be ordered only when they are to

      be served at the same institution.” Sweeney v. State, 704 N.E.2d 86, 110 (Ind.

      1998). Stated differently, “[s]entences to penal institutions of different

      jurisdictions are cumulative and not concurrent.” Perry v. State, 921 N.E.2d

      525, 527–28 (Ind. Ct. App. 2010). “Moreover, a defendant is not even entitled

      to credit on his Indiana sentence while he is incarcerated in another jurisdiction




      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018                   Page 11 of 14
      for a totally different offense.” Carrion v. State, 619 N.E.2d 972, 973 (Ind. Ct.

      App. 1993).


[3]   In this case, Maciaszek was serving a sentence in New Hampshire when he was

      sentenced in relation to his criminal behavior in Indiana. In an earlier appeal, a

      panel of this court noted that because the trial court’s judgment of conviction

      did not specify whether Maciaszek’s Indiana sentence was to run concurrently

      or consecutively to his New Hampshire sentence, “we must conclude that the

      Indiana and New Hampshire sentences were to be served concurrently.”

      Maciaszek v. State, 75 N.E.3d 1089, 1094 (Ind. Ct. App. 2017) (“Maciaszek I”),

      trans. denied. The matter was remanded to the trial court, and, on March 14,

      2018, the trial court entered an amended judgment of conviction in which it

      clarified that Maciaszek’s Indiana sentence would run consecutively to his New

      Hampshire sentence.


[4]   Maciaszek challenges the propriety of the trial court’s amended judgment,

      arguing that under the law of the case doctrine, the trial court was bound by the

      conclusion in Maciaszek I that the Indiana and New Hampshire sentences would

      run concurrently. Generally, the law of the case doctrine binds the court on

      appeal in any subsequent appeal, and the doctrine applies whether the earlier

      decision was right or wrong. See Ind. Farm Gas Prod. Co., Inc. v. S. Ind. Gas &

      Elec. Co., 662 N.E.2d 977, 981 (Ind. Ct. App. 1996) (providing that the law of

      the case doctrine should generally be followed “even when the earlier decision

      is deemed to be incorrect”). However, contrary to this general practice, the

      Indiana Supreme Court has held that appellate courts have “always maintained

      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018       Page 12 of 14
      the option of reconsidering earlier cases in order to correct error.” State v.

      Huffman, 643 N.E.2d 899, 901 (Ind. 1994). A court has the power to revisit its

      prior decisions “in any circumstance.” Id. This is especially so when the earlier

      decision was “‘clearly erroneous and would work a manifest injustice.’” State v.

      Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989) (quoting Ariz. v. Cal., 460 U.S. 605,

      618 n.8 (1983)).


[5]   Pursuant to Sweeney, Perry, and Carrion, Maciaszek’s Indiana sentence must run

      consecutively to his New Hampshire sentence. See Sweeney, 704 N.E.2d at 110;

      Perry, 921 N.E.2d at 527–28; Carrion, 619 N.E.2d at 973. Therefore, application

      of the law of the case doctrine would result in the imposition of an illegal

      sentence. We have previously concluded that when the sentence imposed is

      improper, “it is the general if not unanimous rule that the trial court has the

      power to vacate the illegal sentence and impose a proper one.” Lockhart v. State,

      671 N.E.2d 893, 904 (Ind. Ct. App. 1996). Further, although one could argue

      that Maciaszek would suffer a manifest injustice, i.e., he would be subjected to a

      longer term of incarceration, if the law of the case doctrine were not applied, we

      have previously recognized that following vacation of an illegal sentence, the

      trial court may impose a proper sentence even if it “results in an increased

      sentence.” Niece v. State, 456 N.E.2d 1081, 1084 (Ind. Ct. App. 1983). Thus,

      given the interstate nature of Maciaszek’s seemingly repetitive criminal

      behavior, one could reasonably conclude that application of a lawful sentence

      will not result in a manifest injustice to him. Moreover, one could also

      reasonably conclude that imposition of illegal concurrent sentences would result

      Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018       Page 13 of 14
in a manifest injustice to the citizenry of both Indiana and New Hampshire,

especially those individuals victimized by Maciaszek.




Court of Appeals of Indiana | Opinion 18A-CR-939 | November 8, 2018   Page 14 of 14
