      MEMORANDUM DECISION                                               FILED
      Pursuant to Ind. Appellate Rule 65(D), this                  Dec 14 2016, 8:48 am

      Memorandum Decision shall not be regarded as                      CLERK
      precedent or cited before any court except for the            Indiana Supreme Court
                                                                       Court of Appeals
      purpose of establishing the defense of res judicata,               and Tax Court

      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
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      William Epperly,                                         December 14, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1607-CR-1567
              v.                                               Appeal from the Howard Circuit
                                                               Court.
                                                               The Honorable Douglas A. Tate,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 34D03-1406-FD-522




      Barteau, Senior Judge


                                       Statement of the Case
[1]   William Epperly appeals the trial court’s calculation of presentence jail time

      credit. We reverse and remand for clarification of the amount of credit time to

      which Epperly is entitled.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 1 of 6
                                                    Issue
[2]   Epperly raises one issue, which we restate as: whether the trial court erred in

      calculating presentence jail time credit while sentencing Epperly for violating

      the conditions of his probation.


                               Facts and Procedural History
[3]   In June 2014, the State charged Epperly with operating a vehicle as a habitual

      traffic offender, a Class D felony. The parties executed a plea agreement, and

      Epperly pleaded guilty as charged. On March 17, 2015, the trial court

      sentenced him to three years, of which forty-two days were to be executed but

      were offset by forty-two days he had already served in jail. The remainder of

      the three-year sentence was suspended to probation.


[4]   On September 3, 2015, the State filed a petition to revoke Epperly’s probation,

      alleging that he had committed new criminal offenses. On September 14, 2015,

      the State filed a second petition to revoke, alleging that he had committed

      additional new criminal offenses. The parties executed an agreement. On

      December 8, 2015, Epperly admitted that he had violated the conditions of his

      probation as set forth in the State’s petitions to revoke. The trial court

      sentenced Epperly to serve forty days of his previously suspended sentence,

      with “credit for 168 days executed (9/16/15-present).” Appellant’s App. Vol.

      2, p. 9. The court further ordered that his remaining sentence would be served

      on supervised probation.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 2 of 6
[5]   On January 28, 2016, the State filed yet another petition to revoke Epperly’s

      probation, alleging that he had committed new criminal offenses. During a

      June 1, 2016 hearing, Epperly admitted that he had violated the conditions of

      his probation as set forth in the State’s petition to revoke.


[6]   On June 8, 2016, the court held a sentencing hearing. Epperly informed the

      court that a pending criminal case had been resolved and he was serving a

      suspended sentence for that case. Epperly also had another pending criminal

      case that had not yet been resolved. During the hearing, the court told Epperly,

      “I’m going to show that the balance of the suspended sentence will be executed.

      By my calculations, you’re looking at about three hundred and twenty-nine

      actual days.” Amended Tr. p. 17.


[7]   In the sentencing order, the court ordered Epperly to serve “the balance of

      [Epperly’s] 3 year suspended sentence, with credit for 148 actual days served

      (06/18/14-07/08/14, 09/16/15-12/08/15 and 01/29/16-03/11/16), leaving a

      balance of 947 actual days.” Appellant’s App. Vol. 3, p. 27. This appeal

      followed.


                                   Discussion and Decision
[8]   Epperly does not challenge the revocation of his probation or the trial court’s

      determination that he should serve the remainder of his suspended sentence.

      Instead, he claims the trial court erred in calculating his presentence jail credit

      time. The State concedes that remand may be necessary to clarify the amount

      of time to which Epperly is entitled.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 3 of 6
[9]    In general, a trial court’s sentencing decision in a probation revocation

       proceeding is reviewed for abuse of discretion. Sanders v. State, 825 N.E.2d 952,

       956 (Ind. Ct. App. 2005), trans. denied. An award of presentence jail time credit

       is governed by a different standard. At the time Epperly committed his original

       criminal offense, the governing statute provided that a defendant such as

       Epperly who was not a credit restricted felon and who was imprisoned for a

       crime or imprisoned awaiting trial or sentencing would be assigned to Class I

       status. Ind. Code § 35-50-6-4(a) (2008). A person who committed an offense

       before July 1, 2014 and is classified as Class I earns one day of good credit time

       for each day the person is imprisoned for a crime or confined awaiting trial or

       sentencing. Ind. Code § 35-50-6-3 (2015). As a result, presentence jail time

       credit is a matter of statutory right, and trial courts generally do not have

       discretion in awarding or denying such credit. Molden v. State, 750 N.E.2d 448,

       449 (Ind. Ct. App. 2001).


[10]   When reviewing a contradiction between an oral pronouncement of sentence

       and the written sentencing order, the approach employed by Indiana appellate

       courts in non-capital cases is to examine both the written and oral sentencing

       statements to discern the findings of the trial court. McElroy v. State, 865 N.E.2d

       584, 589 (Ind. 2007). We have the option of crediting the statement that

       accurately pronounces the sentence or remanding for clarification. Id.


[11]   Epperly correctly notes there is a strong divergence between the sentence the

       trial court orally imposed at sentencing (329 days) and the sentence the trial

       court set forth in the written order (947 days). Epperly further challenges the

       Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 4 of 6
       correctness of the sentencing order, stating the trial court should have given him

       credit for days he was incarcerated from March 11, 2016 until his date of

       sentencing, June 8, 2016. He claims that if he is given credit for those days, his

       executed sentence is only 314 days.


[12]   The State concedes that the trial court’s oral and written statements are in

       conflict but does not necessarily agree with Epperly’s claim that he is entitled to

       credit time for the days he was incarcerated from March 11, 2016 to June 8,

       2016. Specifically, the State notes Epperly was incarcerated for several pending

       cases during that time period and reasons that he may have received credit time

       in another case for those days. The State suggests that the trial court could

       clarify the issue on remand.


[13]   When a defendant is incarcerated prior to trial on several charges, and

       consecutive sentences are imposed, “credit time is deducted from the aggregate

       total of the consecutive sentences, not from an individual sentence.” State v.

       Lotaki, 4 N.E.3d 656, 657 (Ind. 2014). By contrast, when a defendant is

       incarcerated prior to trial on more than one case and is sentenced to concurrent

       terms, the defendant may receive credit time applied against each separate term.

       Purdue v. State, 51 N.E.3d 432, 436 (Ind. Ct. App. 2016).


[14]   On the record before us, we are unable to determine whether the oral

       sentencing statement or the written sentencing statement reflects the

       appropriate sentence. We are also unable to determine whether the court erred

       by not awarding jail credit days for the period of time from March 11, 2016


       Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 5 of 6
       through June 8, 2016 because the record does not establish whether those days

       were applied to a sentence from another case. It is necessary to reverse and

       remand to the trial court for clarification of these issues. On remand, the court

       may: (1) issue a new sentencing order without taking any further action; (2)

       order additional briefing on sentencing and then issue a new order without

       holding a new sentencing hearing; or (3) order a new sentencing hearing at

       which additional factual submissions are either allowed or disallowed and then

       issue a new order based on the presentations of the parties. Lotaki, 4 N.E.3d at

       658.


                                                Conclusion
[15]   For the reasons stated above, we reverse and remand with instructions to clarify

       the amount of credit time to which Epperly is entitled.


[16]   Reversed and remanded with instructions.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1567 | December 14, 2016   Page 6 of 6
