MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Aug 07 2019, 8:26 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
Randall L. Capatina                                      Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randall L. Capatina,                                     August 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1093
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1207-FD-1024
                                                         02D06-1208-FC-278



Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019                   Page 1 of 10
                                             Case Summary
[1]   Randall L. Capatina appeals from the denial of his petitions for jail time credit

      relating to his convictions and sentences in separate causes. We affirm.


                                                     Issues
[2]   Capatina raises two issues on appeal, which we restate as follows:


              1. Whether the trial court erred in imposing consecutive
                 sentences.


              2. Whether the trial court abused its discretion in denying
                 Capatina’s petition for jail time credit.


                                                     Facts
[3]   This case involves Capatina’s petition for additional jail time credit relating to

      convictions and sentences entered between 2012 to 2015 in three separate

      causes in two counties. The timeline of pertinent events is as follows:


          •   July 2012 – Capatina was charged in Allen County, Cause 02D06-1207-
              FD-1024 (“FD-1024”) with pointing an unloaded firearm at another
              person, a Class A misdemeanor, and battery resulting in bodily injury, a
              Class A misdemeanor.

          •   August 2012 – Capatina was charged in Allen County, Cause 02D06-
              1208-FC-278 (“FC-278”) with disarming a law enforcement officer, a
              Class C felony, while Capatina was on bond in FD-1024.

          •   December 2012 – Capatina was sentenced on each count of FD-1024, to
              one year, six months executed, and six months suspended to probation,
              with the sentences to be served concurrently.

          •   March 2013 – Capatina was sentenced in FC-278 to four years executed,
              and two years suspended to probation, with the sentences to be served

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 2 of 10
              consecutively to Capatina’s sentences in FD-1024. Capatina was
              awarded 123 days of jail time credit.

          •   June 2014 – Capatina began serving probation.

          •   October 14, 2014 – While Capatina was on probation in FD-1024 and
              FC-278, Capatina was arrested in Whitley County in 92C01-1410-F4-117
              (“F4-117”) for various offenses. Capatina remained incarcerated in
              Whitley County until May 18, 2015, or 218 days.

          •   October 17, 2014 - The State filed petitions to revoke probation in FD-
              1024 and FC-278.

          •   May 19, 2015 – Capatina was transported to Allen County, where he
              remained incarcerated through June 2, 2015, or fourteen days.

          •   April 23, 2015 – Capatina was sentenced, in F4-117, as follows:

                  o    Count I, dealing in a narcotic drug, a Level 4 felony, eight years,
                       with six years executed and two years suspended to probation;

                  o    Count II, possession of a narcotic drug, a Level 6 felony, two years
                       in DOC, to be served concurrently with Count I; and

                  o    Count III, maintaining a common nuisance, a Level 6 felony, two
                       years executed, to be served concurrently with Counts I and II.

          •   June 2, 2015 – Capatina’s probation was revoked in FD-1024 and FC-
              278.

                  o In FD-1024, Capatina was committed to the Department of
                    Correction (“DOC”) for 182 days on each of the two counts, with
                    the sentences ordered to be served concurrently with one another,
                    but consecutively to his sentences in FC-278 and F4-117.

                  o In FC-278, Capatina was committed to DOC for two years, with
                    the sentence ordered to be served consecutively to his sentences in
                    FD-1024 and FC-117. Capatina was not awarded jail time credit
                    at revocation in either cause.

[4]   In March 2018, Capatina filed petitions for jail time credit regarding FD-1024

      and FC-278. On March 19, 2018, the Allen County probation department filed



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 3 of 10
reports regarding Capatina’s eligibility for jail time credit in each cause. The

FD-1024 probation report provides:


        [In FD-1024, Capatina] was sentenced to one (1) year Allen
        County Jail, (183) days executed, and (182) days suspended, in
        Counts II and IV, on December 21, 2012. The counts were
        ordered served concurrent[ly] to each other and [Capatina] was
        time served at sentencing. [Capatina] was on bond for [FD-1024]
        when he committed an offense, in 02D06-1208-FC-278, which
        was ordered served consecutive[ly] to [FD-1024].


        [Capatina] began probation on June 5, 2014 and a Verified
        Petition for Revocation of Probation was filed on October 17,
        2014, due to the defendant committing a new offense in Whitley
        County cause number [F4-117]. On June 2, 2015, [Capatina]
        was ordered revoked from probation and committed to the Allen
        County Jail for (182) days on Count II and Count IV. The
        counts were ordered served concurrent[ly] to each other and the
        sentence was ordered served consecutive[ly] to [FC-278] and [F4-
        117]. [Capatina] was awarded zero (0) days of jail time credit at
        the time of revocation.


        [Capatina] is requesting the Court grant him an additional (92)
        days of jail time credit, as he was being held and confined for
        multiple offenses during the same time period. [Capatina] was
        arrested in Whitley County, on October 14, 2014 and all time
        from that date to present is being applied toward the sentence in
        Whitley County cause [F4-117]. According to the Indiana
        Department of Correction, [Capatina] is scheduled to complete
        the executed portion of the Whitley County conviction on May
        29, 2019, at which time he will serve [FC-278], until May 29,
        2020. Upon completion of those cases in the Department of
        Correction, [Capatina] will be returned to the Allen County Jail
        to satisfy the sentence in [FD-1024].


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 4 of 10
              [Capatina] has been awarded all of the jail time credit for which
              he is eligible. Therefore, it is recommended that the Motion for
              Jail Time and Earned Time Credit be denied.


      Id. at 80.


[5]   The FC-278 probation report provides:


              [In FC-278, Capatina] was sentenced to six (6) years Indiana
              Department of Correction, four (4) years executed, and two (2)
              years of probation. He was awarded (123) days of jail time credit
              at the time of sentencing. [Capatina] began probation on June 5,
              2014, and on October 17, 2014, a Verified Petition for
              Revocation of Probation was filed, due to [Capatina] committing
              a new offense in Whitley County. The defendant’s probation
              was revoked on June 2, 2015, and he was ordered committed to
              the Indiana Department of Correction for two (2) years. He was
              not awarded any jail time credit at the time of the revocation and
              the sentence was ordered served consecutive[ly] to [FD-1024]
              and [F4-117].


              [Capatina] was arrested in Whitley County on October 13, 2014
              and remained in custody until he was sentenced in Whitley
              County on May 18, 2015. He was transferred to the Allen
              County Jail on May 19, 2015, and remained there until he was
              transported to the Indiana Department of Correction on June 5,
              2015. [Capatina] remains in the Indiana Department of
              Correction with an Earliest Possible Release Date of May 29,
              2020.


              At the time of sentencing in [F4-117], the defendant was awarded
              jail time credit from October 13, 2014 until May 18, 2016 (216)
              days. This officer contacted the Indiana Department of
              Correction and confirmed all time from the sentencing date, in
              [F4-117], until he satisfies the sentence, on May 29, 2019, is

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 5 of 10
              being applied toward that sentence. Upon completion of the
              Whitley County sentence, he will begin serving the sentence in
              the present case, followed by the sentence in [FD-1024].


              [Capatina] was not awarded any jail time credit at the time of the
              revocation and is not entitled to any. It is recommended the
              Motion for Jail Time and Earned Time Credit be denied.


      Id. at 81.


[6]   On April 18, 2018, and July 5, 2018, the trial court denied Capatina’s petitions

      for jail time credit in FD-1024 and FC-278, respectively, “without hearing.” Id.

      at 78. The trial court’s order in FC-278 specifically provides: “. . .[T]he Court

      finds that the time claimed by [Capatina] for credit in [FC-278] was in fact

      ordered to other causes which are running consecutively with [FC-278].” Id. at

      79. Capatina now appeals the denial of his petitions for jail time credit.


                                                  Analysis
[7]   Capatina’s motion for jail time credit is essentially a motion to correct an

      erroneous sentence. See Ind. Code § 35-38-1-15. We review a ruling on a

      motion to correct an erroneous sentence only for an abuse of discretion. Hobbs

      v. State, 71 N.E.3d 46, 48 (Ind. Ct. App. 2017), trans. denied. An abuse of

      discretion occurs if the trial court’s decision is against the logic and effect of the

      facts and circumstances before it. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 6 of 10
                                         1. Consecutive Sentences

[8]   First, Capatina argues that the trial court erred in ordering his sentences in FD-

      1024, FC-278, and F4-117 to be served consecutively. The decision to impose

      consecutive sentences rests within the discretion of the trial court. Gross v. State,

      22 N.E.2d 863, 869 (Ind. Ct. App. 2014), trans. denied. In general, a trial court

      cannot order consecutive sentences in the absence of express statutory

      authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).


[9]   The versions of Indiana Code section 35-50-1-2 in effect at the time of

      Capatina’s sentencing in FD-1024, FC-278, and F4-117 each provided:


              If, 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;
                  or


              (2) while the person is released:


                       (A) upon the person’s own recognizance; or


                       (B) on bond;


              the terms of imprisonment for the crimes shall be served
              consecutively, regardless of the order in which the crimes are
              tried and sentences are imposed.


      I.C. §§ 35-50-1-2(d)(2012), (2013), (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 7 of 10
[10]   The record here reveals that: (1) while Capatina was on bond for FD-1024, he

       committed a new offense, FC-278; (2) while Capatina was on probation in FD-

       1024 and FC-278, he was arrested for committing new offenses in F4-117; and

       (3) Capatina’s probation in FD-1024 and FC-278 was subsequently revoked.

       Thus, pursuant to Indiana Code Section 35-50-1-2, the trial court was

       statutorily required to impose mandatory consecutive sentences. See Garner v.

       State, 646 N.E.2d 349, 351 (Ind. Ct. App. 1995) (affirming imposition of

       consecutive sentences when defendant committed a new offense after he was

       released on bond or on his own recognizance); see Bischoff v. State, 704 N.E.2d

       129, 130-31 (Ind. Ct. App. 1998) (“Because sentence was imposed in the

       handgun case before Bischoff’s probation was revoked in the OWI case, the

       court in the OWI case was required[,] upon revoking Bischoff’s probation[,] to

       require that the sentences be served consecutively.”). The trial court did not

       abuse its discretion in imposing consecutive sentences. 1


                                  2. Jail Time Credit and Earned Credit Time

[11]   Capatina also argues that he is entitled to additional jail time credit in FD-1024

       and FC-278 because he was “confined for multiple offenses during the same

       period.” Appellant’s Br. p. 15. He maintains he “is eligible for 229 days credit




       1
         To the extent that Capatina also challenges the sequence in which his consecutive sentences must be served,
       this issue is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (“Issues raised for the first time
       on appeal are waived.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019                      Page 8 of 10
       but seek[s] 92 ninety-two days [jail time credit and earned credit time] in FD-

       1024” and 229 days of jail time credit in FC-278. App. Vol. II pp. 49, 64.


[12]   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).

       Indiana inmates imprisoned awaiting trial or sentencing earn Class I jail time

       credit or “one (1) day of credit time for each day [the inmate] is imprisoned for

       a crime or confined awaiting trial or sentencing.” I.C. § 35-50-6-3(a).


               Determination of a defendant’s pretrial credit is dependent upon
               (1) pretrial confinement, and (2) the pretrial confinement being a
               result of the criminal charge for which sentence is being imposed.
               Credit is to be applied for time spent in confinement that is the
               result of the charge for which the defendant is being sentenced.


       Bischoff v. State, 704 N.E.2d 129, 130 (Ind. Ct. App. 1998) (citations omitted).


[13]   Jail time credit operates differently depending on whether the sentences are

       consecutive or concurrent. Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995). In

       concurrent sentencing cases, Indiana Code section 35-50-6-3 entitles the

       individual to receive credit time applied against each separate term; however, in

       consecutive sentencing cases, pretrial credit is awarded against the total or

       aggregate of the sentence terms. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.

       App. 2000), trans. denied.


[14]   As we have already found, the trial court properly imposed mandatory

       consecutive sentences in FD-1024, FC-278, and F4-117, pursuant to Indiana

       Code Section 35-50-1-2(d)(2012). The record further reveals that, after

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 9 of 10
       Capatina was arrested for the offenses alleged in F4-117, Capatina was

       incarcerated—from October 13, 2014 until May 18, 2015 or 216 days—for F4-

       117. Accordingly, in sentencing Capatina in F4-117, the trial court applied 216

       days of jail time credit to Capatina’s sentence. See Bischoff, 704 N.E.2d at 130

       (“Credit is to be applied for time spent in confinement that is the result of the

       charge for which the defendant is being sentenced.”).


[15]   Based on the foregoing, the trial court’s determination of Capatina’s jail time

       credit is not against the logic and effect of the facts and circumstances before the

       court. Capatina was properly ordered to serve mandatory consecutive

       sentences and, therefore, is ineligible for application of jail time credit to each

       separate sentence, as such would improperly result in double credit and would

       allow Capatina to serve a portion of his sentences concurrently. See Corn, 659

       N.E.2d at 558-59; see Diedrich v. State, 744 N.E.2d 1004, 1007 (Ind. Ct. App.

       2001) (affirming denial of petition for jail time credit that limited defendant to

       only one credit for the period of incarceration because defendant was required

       to serve his sentences consecutively where defendant committed a second

       offense while on bond). We find no abuse of discretion.


                                                 Conclusion
[16]   The trial court did not abuse its discretion in imposing consecutive sentences or

       in denying Capatina’s petition for jail time credit. We affirm.


[17]   Affirmed.


       Crone, J., and Bradford, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1093 | August 7, 2019   Page 10 of 10
