MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Feb 21 2020, 8:53 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Mark A. Thacker                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Thacker,                                         February 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2057
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Sheila Carlisle, Judge
                                                         The Honorable
                                                         Stanley Kroh, Magistrate
                                                         Trial Court Cause No.
                                                         49G03-9603-CF-34643



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2057 | February 21, 2020               Page 1 of 3
[1]   In 1997, Mark Thacker was convicted of murder and other offenses and

      sentenced to 175 years. See Thacker v. State, 709 N.E.2d 3 (Ind. 1999), reh’g

      denied. Thereafter, Thacker sought post-conviction relief. In 2002, the post-

      conviction court granted Thacker relief, reducing his sentence to 85 years. See

      Appellant’s App. Vol. II p. 13. The revised abstract of judgment provides that,

      as of June 17, 1997, Thacker had been confined 469 days “prior to sentencing.”

      Id. at 19. The revised abstract does not provide the amount of credit time that

      Thacker earned for the time he spent in confinement before sentencing.


[2]   In November 2018, Thacker, pro se, filed a motion to correct erroneous

      sentence, arguing that his revised abstract of judgment shows that he “was only

      given credit for jail time served and not good time credit as allowed under

      Indiana Code 35-50-6-3(b).” Id. at 20. That same day, the trial court denied

      Thacker’s motion as follows:


              See Robinson v. State, 805 N.E.2d 783 (Ind. 2004). Sentencing
              judgments that report only days spent in pre-sentence
              confinement and fail to expressly designate credit time earned
              shall be understood by the courts and the DOC to automatically
              award the number of credit time days equal to the number of pre-
              sentence confinement days. You have not demonstrated the
              DOC has deprived you of earned credit days.


      Id. It appears that Thacker first learned that his motion had been denied in

      April 2019. See 49G03-9603-CF-34643 (Apr. 25, 2019). In August 2019,

      Thacker filed a petition for permission to file a belated notice of appeal pursuant

      to Indiana Post-Conviction Rule 2(1), which the trial court denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2057 | February 21, 2020   Page 2 of 3
[3]   Thacker now appeals, making several arguments why the trial court should

      have given him permission to file a belated notice of appeal so that he could

      challenge the denial of his motion to correct erroneous sentence. We first note

      that Post-Conviction Rule 2(1) cannot be used to salvage a defendant’s late

      appeal of a denial of a motion to correct erroneous sentence. See In re Adoption

      of O.R., 16 N.E.3d 965, 970 n.2 (Ind. 2014) (citing Davis v. State, 771 N.E.2d 647

      (Ind. 2002)). But even if Thacker were allowed to bring a belated appeal, he

      would not be entitled to the substantive relief he seeks. As our Supreme Court

      explained in Robinson:


              In an effort to facilitate the fair and expeditious resolution of
              appellate litigation arising from these judgments, we adopt the
              following appellate presumption. Sentencing judgments that
              report only days spent in pre-sentence confinement and fail to
              expressly designate credit time earned shall be understood by
              courts and by the Department of Correction automatically to
              award the number of credit time days equal to the number of pre-
              sentence confinement days. . . . Because the omission of
              designation of the statutory credit time entitlement is thus
              corrected by this presumption, such omission may not be raised
              as an erroneous sentence.


      805 N.E.2d at 792 (emphasis added). Accordingly, we affirm the trial court’s

      denial of Thacker’s petition for permission to file a belated notice of appeal.


[4]   Affirmed.


      Najam, J., and Tavitas, J., concur.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2057 | February 21, 2020   Page 3 of 3
