ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Gregory F. Zoeller
Special Asst. to the State Public Defender                 Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                                        Richard C. Webster
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana         Apr 30 2015, 9:52 am




                                            IN THE
    COURT OF APPEALS OF INDIANA

Casie S. Rudisel,                                          April 30, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           84A01-1410-CR-425
        v.                                                 Appeal from the Vigo Superior Court

                                                           The Honorable Michael R. Rader,
State of Indiana,                                          Judge
Appellee-Plaintiff.
                                                           Cause No. 84D05-1102-FD-576




Brown, Judge.




Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015                 Page 1 of 14
[1]   Casie S. Rudisel appeals the trial court’s order revoking her probation and

      placement and ordering that she serve the balance of her original sentence.

      Rudisel raises one issue which we revise and restate as whether the trial court

      abused its discretion in sentencing her following revocation of her probation.

      We reverse and remand.


                                       Facts and Procedural History

[2]   On February 9, 2012, Rudisel entered into a plea agreement with the State in

      which she agreed to plead guilty to operating a vehicle while intoxicated as a

      class D felony. Rudisel agreed to accept the sentencing recommendation of

      three years in the Department of Correction (“DOC”) with all of that time

      suspended except for 180 days served on home detention as a direct

      commitment. The plea agreement also provided that Rudisel be placed on

      formal probation for 915 days and that the sentence run consecutive to the

      sentence in cause number “FB 3678.” Appellant’s Appendix at 26.


[3]   That same day, the court accepted the plea agreement and sentenced Rudisel to

      three years suspended except for 180 days to be served as a direct commitment

      on home detention under the supervision of the Vigo County Community

      Corrections Program, with no actual days credit. The court ordered that

      Rudisel have until May 2, 2012, to be placed on home detention, that she be

      placed on formal probation for 915 days following release from home

      detention, that she complete the Vigo County Alcohol and Drug Program as a

      term of probation, and that the sentence be served consecutive to her sentence

      in cause number 84D03-0911-FB-3678.
      Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 2 of 14
[4]   On April 30, 2012, and May 21, 2012, the court received letters from Rudisel,1

      and on June 1, 2012, the court held a hearing on her request to modify her

      sentence. That same day, the court entered an order requiring that Rudisel be

      placed on work release in lieu of the previously ordered home detention.


[5]   On June 26, 2012, Rudisel notified the court of her inability to follow through

      with the modified sentence. That same day, the State filed a petition to revoke

      placement in the work release program and/or to revoke probation. The State

      alleged that Rudisel violated her direct placement by failing to enter the Vigo

      County Work Release Facility and begin her placement in the Work Release

      Program.


[6]   On July 12, 2012, the court held a hearing on the State’s petition and found that

      Rudisel violated the terms of her direct placement. The court ordered her to be

      evaluated for placement at Freebirds Solution Center “and if found appropriate

      she is to be placed in that program within two (2) weeks and pay all the

      program fees.” Id. at 38. The court also ordered her to complete her home

      detention at that program if the arrangements could be made and to comply

      with the terms of the Vigo County Alcohol and Drug Program.


[7]   On August 22, 2012, the State filed a petition to revoke direct placement in

      home detention and/or to revoke probation and alleged that on July 26, 2012,

      Rudisel was found to be residing at Freebirds serving her home detention as



      1
          The record does not contain a copy of the letters.


      Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 3 of 14
       ordered as a direct commitment, but that “[o]n August 20, 2012, the State was

       informed by Freebirds, [Rudisel] obsconded [sic] during ransom [sic] drug

       testing and has not returned to date.” Id. at 40. The court issued a bench

       warrant, and Rudisel was arrested on September 2, 2012.


[8]    In September 2012, the court scheduled a bond reduction hearing for October

       25, 2012. On October 25, 2012, Rudisel failed to appear, and the court issued a

       bench warrant. On December 6, 2012, the court entered an order stating that

       Rudisel appeared in person in custody of the Vigo County Sheriff’s

       Department, and ordering that Rudisel be evaluated by the Vigo County

       Community Corrections Program for possible placement in the Work Release

       Program, and that she be remanded back into the custody of the Vigo County

       Sheriff’s Department.


[9]    On February 7, 2013, the court entered an order finding that Rudisel admitted

       the allegations in the State’s petition to revoke direct placement on home

       detention. The court’s order states: “The Court revokes the Defendant’s

       sentence for 104 actual days served in the Vigo County Jail.” Id. at 59. The

       court ordered Rudisel “returned to formal probation and . . . to comply with the

       Vigo County Alcohol and Drug Program and to submit to random drug

       screens.” Id.


[10]   On February 7, 2014, the State filed a notice of probation violation alleging that

       Rudisel was not reporting as ordered, failed to respond to a letter dated

       December 4, 2013, and was non-compliant with the Vigo County Alcohol and


       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015    Page 4 of 14
       Drug Program. The court scheduled a hearing for April 11, 2014, Rudisel

       failed to appear at the hearing, and the court issued a bench warrant. On

       August 31, 2014, the bench warrant was served.


[11]   On September 4, 2014, the court held a hearing. At the end of the hearing, the

       court stated: “So you’re sentenced to the remainder of the term at the Indiana

       Department of Correction with credit for every day that you’ve served up til

       [sic] now.” Transcript at 25. That same day,2 the court entered an order

       finding that Rudisel violated the terms of her probation by not reporting to

       Adult Probation as ordered and that she was non-compliant with the Vigo

       County Alcohol and Drug Program. The court revoked Rudisel’s probation

       and sentenced her to the DOC for “2 ½ years, the balance of her original

       sentence, with credit for 5 actual days served in the Vigo County Jail from

       August 31, 2014 to September 4, 2014.” Appellant’s Appendix at 72. The

       abstract of judgment indicates under the heading “SENTENCE:”

               Sentenced:        3 Years
               DOC Executed:              2 Years and 6 Months
               Comm. Corr.                180 Days




       2
         The order indicates that it was “SO ORDERED this 4th day of September, 2014,” and the order was file-
       stamped September 5, 2014. Appellant’s Appendix at 72.

       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015                      Page 5 of 14
       Id. at 73. Under the headings “Dates of confinement prior to sentencing” and

       “Incarceration,” it lists five days under “ACTUAL DAYS” and five days under

       “EARNED CREDIT DAYS.” Id.


[12]   In a letter received by the trial court on September 15, 2014, Rudisel asked for a

       count of the number of actual days served for which she received credit. She

       asserted that before she was sentenced on the probation violation she had credit

       for 104 actual days, that the chronological case summary indicates that she was

       sentenced to the DOC for the remainder of her time of two and one-half years

       with credit for five actual days, and that she was not receiving credit for the 104

       days she served. On September 17, 2014, the court entered an order which

       stated: “The Court is advised [Rudisel] received credit for 104 actual days on a

       Probation Violation on February 7, 2013 and therefore cannot receive credit for

       those days again.” Id. at 81.


[13]   On September 25, 2014, Rudisel filed a motion for jail time credit alleging that

       the correct amount of jail time credit was 109 days. On September 29, 2014,

       the court denied Rudisel’s motion and stated that Rudisel “received credit for

       the 104 days, from September 2, 2012 through October 5, 2012 for 34 actual

       days and from November 30, 2012 through February 7, 2013 for 70 actual days

       on the Petition to Revoke Direct Placement that was filed on August 22, 2012.”

       Id. at 90. On October 6, 2014, Rudisel filed a notice of appeal of the September

       4, 2014 order.




       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 6 of 14
[14]   In a pro se letter dated November 3, 2014, Rudisel asserted that the DOC was

       not awarding her credit for the 104 actual days that she served. On November

       18, 2014, Rudisel filed a pro se petition for amended abstract and asserted that

       she was awarded 104 days jail time credit.


                                                     Discussion

[15]   The issue is whether the trial court abused its discretion in sentencing Rudisel

       following revocation of her probation. Ind. Code § 35-38-2-3(h) sets forth a trial

       court’s sentencing options if the trial court finds a probation violation and

       provides:

               If the court finds that the person has violated a condition at any time
               before termination of the period, and the petition to revoke is filed
               within the probationary period, the court may impose one (1) or more
               of the following sanctions:
                        (1) Continue the person on probation, with or without
                        modifying or enlarging the conditions.
                        (2) Extend the person’s probationary period for not more than
                        one (1) year beyond the original probationary period.
                        (3) Order execution of all or part of the sentence that was
                        suspended at the time of initial sentencing.


[16]   The Indiana Supreme Court has held that a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Id. (citation omitted).



       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015          Page 7 of 14
[17]   Rudisel argues that the trial court incorrectly calculated the jail time credit

       owed to her and points to the court’s February 7, 2013 order which states that

       she had served 104 actual days in jail upon being returned to probation after her

       first probation violation. According to Rudisel, she “had served 14 more days

       towards her direct commitment sentence than she was required to serve.”

       Appellant’s Brief at 5. Without citation to the record, she contends that “[a]t

       the second probation revocation hearing, the trial court apparently believed that

       [she] served the equivalent of 180 days prior to starting her term of probation.

       But she had actually served more than that.” Id. She also contends that “[b]y

       denying [her] credit for those additional days that she served above the 180 days

       (208 – 180 = 28 total days), [she] will be required to serve an overall sentence in

       excess of 3 years, the statutory maximum sentence allowed for a Class D

       felony.” Id. Lastly, she asserts that the abstract of judgment issued in this case

       not only fails to include the proper amount of jail time credit, but it includes the

       original 180-day community correction direct commitment and “it appears as if

       [she] must serve a second direct commitment term after being released from the

       D.O.C.” Id.


[18]   The State argues that Rudisel waived her claim because she failed to provide an

       adequate record for review and never objected at sentencing to the trial court’s

       award of credit for time served. The State also contends that Rudisel has not

       proved that she did not receive credit for the days she claims, and that this court

       lacks jurisdiction because Rudisel has not shown that she exhausted all of her

       administrative remedies before raising the issue in court.


       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 8 of 14
[19]   We initially note that this issue is appropriate for direct appeal. See Robinson v.

       State, 805 N.E.2d 783, 786 (Ind. 2004) (noting that a defendant may challenge a

       trial court’s award of credit time on direct appeal); Buchanan v. State, 956

       N.E.2d 124, 128 (Ind. Ct. App. 2011) (noting that a challenge to the trial court’s

       credit time calculation is appropriate for direct appeal); see also Murphy v. State,

       942 N.E.2d 818, 819 (Ind. 2011) (adopting the Court of Appeals opinion which

       held that the trial court is the proper authority to determine whether a

       defendant who completes an educational degree before sentencing is entitled to

       educational credit time). To the extent the State asserts that this court does not

       have jurisdiction because Rudisel has not shown that she exhausted her

       administrative remedies, we do not believe that the failure to exhaust

       administrative remedies implicates the subject matter jurisdiction of the trial

       court or this court. See First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757, 760

       (Ind. 2014) (explaining “that the exhaustion of administrative remedies under

       AOPA is a procedural error and does not implicate the trial court’s subject

       matter jurisdiction”), amended on reh’g, 27 N.E.3d 768; K.S. v. State, 849 N.E.2d

       538, 542 (Ind. 2006) (observing that the question of subject matter jurisdiction

       involves a determination of whether a court has jurisdiction over the general

       class of actions to which a particular case belongs and that “characterizing

       other sorts of procedural defects as ‘jurisdictional’ misapprehends the

       concepts”). The State makes no claim that the trial court or this court generally




       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015    Page 9 of 14
       lack the authority to determine credit time claims, and we decline to dismiss the

       appeal on the basis of a lack of subject matter jurisdiction.3


[20]   “Under the Indiana Penal Code, prisoners receive credit time that is applied to

       reduce their term of imprisonment.” Robinson, 805 N.E.2d at 789. The time

       spent in confinement before sentencing applies toward a prisoner’s fixed term of

       imprisonment. Id. The amount of additional credit or good time credit is

       primarily determined by the prisoner’s credit time classification. 4 Id. Ind. Code

       § 35-38-3-2 requires that the judgment of conviction must include the amount of

       credit, including credit time earned, for time spent in confinement before

       sentencing. The Indiana Supreme Court has held that the DOC’s abstract of

       judgment is not the “judgment of conviction.” Id. at 794. The Indiana




       3
           In K.S. v. State, the Indiana Supreme Court clarified jurisdiction concepts holding:

                  Like the rest of the nation’s courts, Indiana trial courts possess two kinds of
                  “jurisdiction.” Subject matter jurisdiction is the power to hear and determine cases of the
                  general class to which any particular proceeding belongs. Personal jurisdiction requires
                  that appropriate process be effected over the parties.
                  Where these two exist, a court’s decision may be set aside for legal error only through
                  direct appeal and not through collateral attack. Other phrases recently common to
                  Indiana practice, like “jurisdiction over a particular case,” confuse actual jurisdiction
                  with legal error, and we will be better off ceasing such characterizations.
       849 N.E.2d 538, 540 (Ind. 2006).
       4
        In Robinson, the Court stated that credit time earned under Class I and that earned for educational
       achievements is sometimes described as “good time” credit because such credit is conditioned on the absence
       of bad conduct. 805 N.E.2d at 790. The Court also noted:
                  For purposes of our opinion in Purcell v. State, we used the phrase “good time credit” to
                  describe “the additional credit a prisoner receives for good behavior and educational
                  attainment,” and the phrase “credit for time served” to refer to “the credit toward the
                  sentence a prisoner receives for time actually served.” 721 N.E.2d 220, 222 [(Ind. 1999)].
       Id. at 790 at n.5.

       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015                               Page 10 of 14
       Supreme Court has interpreted Ind. Code § 35-38-3-2 “to require that a trial

       court’s judgment of conviction separately include both the amount of time spent

       by the defendant prior to imposition of sentence and also the amount of credit

       time earned in accordance with the defendant’s credit time class.” Id. at 789.

       “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 [DOC] automatically to award the number of credit time days equal

       to the number of pre-sentence confinement days.” Id. at 792. “In the event of

       any pre-sentence deprivation of credit time, the trial court must report it in the

       sentencing judgment.” Id.


[21]   Rudisel asserts that according to the trial court’s February 7, 2013 order, she

       had served 104 actual days in jail upon being returned to probation after her

       first probation violation. In its February 7, 2013 order revoking Rudisel’s

       placement, the court accepted her admission to the allegations contained in the

       State’s petition to revoke direct placement-home detention, and “revoke[d]

       [Rudisel’s] sentence for 104 actual days served in the Vigo County Jail.”

       Appellant’s Appendix at 59. The court then returned Rudisel to formal

       probation and ordered her to comply with the Vigo County Alcohol and Drug

       Program and to submit to random drug screens. We observe that the court

       essentially ordered Rudisel to serve 104 days of her sentence, which she had

       already served in the Vigo County Jail.


[22]   However, we also observe that the trial court’s February 7, 2013 order that

       revoked Rudisel’s “sentence for 104 actual days served” did not mention credit

       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 11 of 14
       time. Id. As previously mentioned, “[s]entencing 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 [DOC] automatically to

       award the number of credit time days equal to the number of pre-sentence

       confinement days.” Robinson, 805 N.E.2d at 792. Applying the presumption,

       the February 7, 2013 order establishes that Rudisel was entitled to 104 days

       credit for time spent in confinement plus 104 days of good credit time. See

       Washington v. State, 805 N.E.2d 795, 796 (Ind. 2004) (holding that 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

       DOC automatically to award the number of credit time days equal to the

       number of pre-sentence confinement days and, applying this presumption, the

       defendant’s sentencing judgment established that he was entitled to 140 days

       credit for time spent in pre-trial confinement plus 140 days of credit time).


[23]   In summary, Rudisel previously received credit for 104 days for actual time

       served. The presumption from Robinson indicates that the court also awarded

       Rudisel 104 days of credit time. The September 4, 2014 order sentenced

       Rudisel to two and one-half years “with credit for 5 actual days served in the

       Vigo County Jail from August 31, 2014 to September 4, 2014.” Appellant’s

       Appendix at 72. Applying the presumption from Robinson, Rudisel was entitled

       to 109 days for incarceration plus 109 days of credit time for a total credit of

       218 days. Thus, at the time of the September 2014 order, Rudisel had a total of




       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015   Page 12 of 14
       218 days of time served and good time credit.5 The court’s September 4, 2014

       order sentenced her to the Department of Correction for two and one-half

       years. The length of time the court sentenced Rudisel to the DOC (2.5 years)

       plus her jail time credit and credit time (218 days) equals approximately 1,130

       days, which is in excess of three years and exceeds the maximum sentence for a

       class D felony. See Ind. Code § 35-50-2-7. Accordingly, we reverse the trial

       court’s sentencing order and remand with instructions to sentence Rudisel

       within the statutory limit. See McAllister v. State, 913 N.E.2d 778, 783 (Ind. Ct.

       App. 2009) (reversing and remanding with instructions to award the correct

       credit time).


[24]   With respect to Rudisel’s argument that the September 2014 abstract of

       judgment indicates that she serve 180 days in community corrections, we

       observe that the abstract of judgment indicates “Comm. Corr: 180 Days” under

       the heading “SENTENCE,” but the sentencing order does not refer to

       community corrections or 180 days and the court did not refer to community

       corrections or 180 days at the hearing when it imposed the sentence.

       Appellant’s Appendix at 73. If the trial court intended to impose a sentence of

       180 days of community corrections, such a sentence would render Rudisel’s

       total sentence further in excess of three years than the excess explained above.




       5
        This amount does not include any other credit time that Rudisel may have earned. On appeal, Rudisel does
       not develop an argument that she was incarcerated for any period of time other than the 104 days.

       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015                    Page 13 of 14
       We remand with instructions to impose a sentence that accounts for the 218

       days of credit time and does not exceed the maximum sentence.


                                                       Conclusion

[25]   For the foregoing reasons, we reverse and remand with instructions to sentence

       Rudisel to a term that considers the applicable credit time and does not exceed

       the maximum sentence.


[26]   Reversed and remanded.6


       Crone, J., and Pyle, J., concur.




       6
         We acknowledge a motion to dismiss with an attached, undated and unsigned abstract of judgment filed
       with this Court by the appellant on April 13, 2015 and entered on the docket on April 17, 2015, and note that
       the Court of Appeals acquired jurisdiction on the date the trial court issued its notice of completion of clerk’s
       record. See Ind. Appellate Rule 8 (“The Court on Appeal acquires jurisdiction on the date the Notice of
       Completion of Clerk's Record is noted in the Chronological Case Summary.”). The notice of completion of
       clerk’s record was filed on December 10, 2014 and entered on the docket on December 22, 2014. In Jernigan
       v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008), this Court held that the policy underlying the rule is to
       facilitate the efficient presentation and disposition of the appeal and to prevent the simultaneous review of a
       judgment by both a trial and appellate court. Here, the policy behind the acquisition of jurisdiction by the
       Court of Appeals may have been violated as both the trial court and this Court may have simultaneously
       reviewed the judgment at issue. For this reason, by separate order, we deny the motion to dismiss.

       Court of Appeals of Indiana | Opinion 84A01-1410-CR-425 | April 30, 2015                           Page 14 of 14
