MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                          Aug 11 2015, 6:22 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren Bedwell                                            Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Shayne Thompson,                                         August 11, 2015

Appellant,                                               Court of Appeals Case No.
                                                         49A05-1410-CR-480
        v.                                               Appeal from the Marion County
                                                         Superior Court Criminal Division 1

State of Indiana,                                        Cause No. 49G01-1309-MR-063580
Appellee                                                       No. 49G01-1406-FA-029370

                                                         The Honorable Kurt Eisgruber,
                                                         Judge




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015        Page 1 of 8
[1]   Shayne Thompson appeals the calculation of credit time in conjunction with his

      sentencing for one count of murder, one count of robbery as a class A felony,

      and one count of robbery as a class B felony.


[2]   We reverse and remand with instructions.

[3]   On October 24, 2011, Thompson committed acts that eventually led to his

      conviction of robbery as a class C felony. He was sentenced to two years,

      suspended, and placed on home detention. He was also placed on 365 days

      probation. His probation was revoked on January 11, 2013. He was later

      released to parole on July 12, 2013. While on parole, on September 19, 2013,

      Thompson and several accomplices forced their way into a residence in

      Indianapolis and robbed a family at gunpoint. Less than a week later, on

      September 25, 2013, Thompson and an accomplice robbed a BP store at

      gunpoint. During the robbery, Thompson shot and killed a store clerk.

[4]   Based upon Thompson’s subsequent arrest on the murder charge, the parole

      department issued a parole warrant on October 2, 2013. On November 20,

      2013, “the warrant was lifted and voided due to the amount of time the

      defendant had already served on this case and his pending maximum release

      date (per legislative order).” Appellant’s Appendix at 301. A supervisor at the

      parole department indicated that “they were aware [Thompson] was in the

      Marion County Jail, and this case was monitored by parole until [Thompson]

      reached his maximum expiration date.” Id. The supervisor further indicated




      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 2 of 8
      that Thompson “was released from parole for this case on 01/10/2014, due to

      [Thompson] reaching his maximum expiration date.” Id.


[5]   Two separate criminal cases were filed against him as a result of the events of

      September 19 and September 25. The State and Thompson eventually entered

      into a single plea agreement resolving both cases. As a result of the September

      19 incident, which we shall refer to as the confinement case, Thompson pled

      guilty to burglary as a class A felony, robbery as a class B felony, and five

      counts of criminal confinement, all as class B felonies. As a result of the

      September 25 incident, which we shall refer to as the murder case, Thompson

      pled guilty to murder and two counts of robbery, one as a class A felony and

      one as a class B felony. According to the terms of the agreement, the sentences

      for each case would run consecutively, and Thompson’s aggregate sentence

      would be between 65 and 110 years. Thompson agreed to waive his right to

      appellate review of the appropriateness of the sentence, and the State agreed

      that Thompson would not be required to register as a sex offender.

[6]   On September 26, 2014, following a hearing, the trial court sentenced

      Thompson to fifty-five years for the murder conviction and ten years for the

      class B-felony robbery conviction. The court ordered that those sentences were

      run consecutively to each other and concurrently with a four-sentence for

      robbery as a class A felony. With respect to the confinement case, Thomas was

      sentenced to thirty years for the burglary conviction, which was to run

      concurrently with a four-sentence for the class B-felony robbery conviction. He

      received fifteen-sentences for each of the four B-felony criminal confinement

      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 3 of 8
      convictions, with those sentences to run concurrently with each other and

      consecutively to the sentence for the burglary conviction. Finally, the aggregate

      sentence for the confinement case was ordered to run consecutively to the

      aggregate sentence for the murder case, for a total aggregate sentence of 110

      years.

[7]   Finally, and germane to the issue presented on appeal, the parties agree that

      Thompson was incarcerated for 367 days between his arrest in the murder case

      and the time he was sentenced. The State argued, and the trial court ultimately

      agreed, that Thompson was not entitled to credit time for 101 of those days

      because he was serving a sentence for his parole violation between October 2,

      2013 (when the parole department filed the warrant) and January 10, 2014

      (when the parole warrant was lifted because Thompson had already “reached

      his maximum expiration date”). Id. at 301.


[8]   Thompson challenges the award of credit time.1 When considering challenges

      to the award of credit time, we review the trial court’s factual determinations




      1
         We reject the State’s assertion that Thompson cannot appeal this alleged error because he
      invited it. At the sentencing hearing, the State argued that Thompson should not get credit for
      “his DOC sentence”, i.e., the time “he was serving [on] a parole violation sentence”.
      Transcript at 96. When asked for a response, Thompson’s stated: “That is a correct statement
      based on the law as we understand it.” Id. It is debatable whether Thompson "invited" the
      error within the meaning of the invited error doctrine. Even if it was argued as a traditional
      example of waiver for failing to object, the argument would not prevail. See Groves v. State,
      823 N.E.2d 1229, 1231–32 (Ind. Ct. App. 2005) (“[g]enerally, a failure to object to error in a
      proceeding, and thus preserve an issue on appeal, results in waiver. However, a court may remedy
      an unpreserved error when it determines the trial court committed fundamental error. An improper
      sentence constitutes fundamental error and cannot be ignored on review”).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 4 of 8
       for an abuse of discretion. Harding v. State, 27 N.E.3d 330 (Ind. Ct. App. 2015).

       On the other hand, legal conclusions based, as here, upon the interpretation of a

       statute are reviewed de novo. See Gardiner v. State, 928 N.E.2d 194, 196 (Ind.

       2010) (“we review de novo matters of statutory interpretation because they

       present pure questions of law”). On appeal, the defendant bears the burden of

       showing that the trial court erred in calculating credit time. Gardner v. State, 678

       N.E.2d 398 (Ind. Ct. App. 1997).


[9]    Thompson contends the trial court erred in denying him credit time for time

       spent on pretrial confinement. It appears the trial court determined that

       Thompson was not entitled to credit time for the period of his confinement

       spanning from October 2 through January 10. It further appears that the trial

       court accepted the State’s argument that Thompson was not qualified to receive

       credit time because during that time he was serving a sentence for violating his

       parole. See fn. 1 infra.


[10]   We begin by considering the statutory scheme devised by our Legislature

       relating to credit time for parole violations. Pursuant to Ind. Code Ann. § 35-

       50-6-1(a) (West, Westlaw current with all 2015 First Regular Session of the

       119th General Assembly legislation), “when a person imprisoned for a felony

       completes the person’s fixed term of imprisonment, less the credit time the




       Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 5 of 8
person has earned with respect to that term, the person shall be … (1) released

on parole for not more than twenty-four (24) months, as determined by the

parole board[.]” As reflected in this provision, parole is administered and

determined by the parole board, and not the court. See Mott v. State, 273 Ind.

216, 221, 402 N.E.2d 986, 989 (1980) (“[t]he Indiana parole board of the

Department of Corrections has exclusive power to parole prisoners, under our

statutes”). I.C. § 35-50-6-7 (West, Westlaw current with all 2015 First Regular

Session of the 119th General Assembly legislation) does provide that credit time

may be denied for a person who is jailed on new charges stemming from acts

committed while on parole. Pursuant to this provision, a parolee who “has

been charged with a new crime may be immediately assigned to Class III and

may have all earned credit time suspended pending disposition of the

allegation” by the DOC or the county detention facility. I.C. § 35-50-6-7(a).

The statute further provides that in the event the parolee is found not guilty of

the alleged misconduct following a hearing, the credit time must be restored.

We reiterate, however, that this is a decision committed to the parole board and

the Department of Correction. See I.C. § 35-50-6-7; see also Propes v. State, 587

N.E.2d 1291, 1293 (Ind. 1992) (“the manner in which a sentence is served once

the prisoner has been committed to the Department of Correction is a matter of

discretion of that department together with the parole board and the clemency

commission and their interactions with the Governor”), cert. denied, 505 U.S.

1226. It appears from the record before us that these steps were not undertaken

and Thompson’s parole was never revoked.



Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 6 of 8
[11]   Based upon Thompson’s arrest for the murder charge, the parole department

       issued a parole warrant on October 2, 2013. Approximately a month and a half

       later, that warrant “was lifted and voided due to the amount of time [he] had

       already served … and his pending maximum release date.” Appellant’s Appendix

       at 301. Although the parole department was aware that he was in the Marion

       County Jail and continued to monitor the case, Thompson’s parole was never

       revoked. In fact, Thompson was released from parole on January 10, 2014,

       because he had “[reached] his maximum expiration date.” Id. Importantly,

       neither the parole department nor the DOC held a hearing to determine, for

       purposes of revoking parole, whether Thompson was guilty of the charges for

       which he was arrested on October 2, 2013. Further, neither the parole board

       nor the DOC undertook the steps necessary to assign him to Class III and/or

       suspend his credit time. Therefore, it cannot be said that Thompson’s

       incarceration during that time was attributable to his parole having been

       revoked, or indeed any official change in his parole status at all. This means

       that during this period Thompson remained in Class I credit time. Thus, any

       loss of credit time during that period could only have been premised upon the

       fact of the allegation that he violated parole. Under these circumstances, we

       can find no authority for denying credit time on this basis.

[12]   Accordingly, we conclude that the trial court erred in depriving Thompson of

       101 days credit time in the murder case for the time he was incarcerated

       between October 2, 2013 and January 10, 2014. We remand with instructions




       Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 7 of 8
       to correct the sentencing order to reflect that Thompson is entitled to receive an

       additional 101 days credit time against the present sentence.

[13]   Judgment reversed and remanded with instructions.




       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015   Page 8 of 8
