Joshua T. Trammell v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                              Dec 31 2015, 10:08 am
    this Memorandum Decision shall not be
    regarded as 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
    Kimberly A. Jackson                                     Gregory F. Zoeller
    Indianapolis, Indiana                                   Attorney General of Indiana
    Jonathan R. Sichtermann
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Joshua T. Trammell,                                     December 31, 2015
    Appellant-Defendant,                                    Court of Appeals Case No.
    24A01-1504-CR-275
    v.                                              Appeal from the Franklin Circuit
    Court
    State of Indiana,                                       The Honorable Clay M.
    Appellee-Plaintiff.                                     Kellerman, Judge
    Trial Court Cause Nos.
    24C02-1306-FD-596
    24C02-1308-FD-1126
    Brown, Judge.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015     Page 1 of 12
    [1]   Joshua T. Trammell appeals from orders determining credit time issued by the
    trial court under cause number 24C02-1306-FD-596 (“Cause No. 596”) and
    cause number 24C02-1308-FD-1126 (“Cause No. 1126”). Trammell raises one
    issue which we revise and restate as whether the court properly determined his
    credit time. We affirm.
    Facts and Procedural History
    [2]   On April 17, 2012, Trammell pled guilty in cause number 24C02-1109-FD-486
    (“Cause No. 486”) to two counts of check deception as class A misdemeanors
    and was sentenced to 365 days, including 305 days suspended to probation, in
    the Franklin Circuit Court 2. On June 11, 2013, Trammell asked Whitewater
    Valley Towing to tow a car belonging to another person, intending to receive
    the proceeds from the car’s disposal and deprive that person of the value of the
    car. He was arrested the same day for this act. On June 16, 2013, he completed
    bond paperwork regarding that arrest, wrote a fraudulent check to a bond agent,
    and was released on bond.
    [3]   The next day, June 17, 2013, the State charged Trammell in Cause No. 596
    with Count I, attempted theft as a class D felony, and Count II, operating a
    motor vehicle while privileges are suspended as a class D felony, in the Franklin
    Circuit Court 2.1 That same day, the State filed a verified petition of probation
    violation in Cause No. 486, and a bench warrant was served on Trammell three
    1
    The charging information in Cause No. 596 is dated June 11, 2013, and is file stamped June 17, 2013.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015           Page 2 of 12
    days later.2 On July 19, 2013, the State filed an amended charging information
    in Cause No. 596 alleging that Trammell was an habitual offender.
    [4]   Trammell remained incarcerated following his arrest on June 20, 2013, and on
    August 29, 2013, a hearing was held in Cause No. 486 on a Petition for
    Modification of Credit for Time Served. The court issued an order stating that
    Trammell was entitled to 274 days credit in that case. The same day, the State
    charged Trammell with check fraud as a class D felony under Cause No. 1126
    related to the check he wrote to the bond agent, an arrest warrant was served on
    him that day in that cause, and he continued to remain incarcerated.
    [5]   On September 3, 2013, the court granted a motion for continuance in Cause
    No. 596, resetting the matter for February 26, 2014. On December 12, 2013,
    Trammell bonded out in Cause No. 1126. On January 6, 2014, Trammell’s
    jury trial in Cause No. 1126 was reset for May 28, 2014. On January 21, 2014,
    the court in Cause No. 486 held a probation revocation hearing and ordered
    that Trammell “shall receive Ninety-one (91) days of the previous suspended
    sentence to be executed in the Franklin County Security Center, consecutive to
    any other cause.” Appellant’s Appendix at 340. On February 14, 2014, in
    Cause No. 596, the court rescheduled trial for July 9, 2014.
    [6]   On April 10, 2014, the State filed a Petition to Revoke Bond under both Cause
    Nos. 596 and 1126, alleging that “on or about March 17, 2014, while on bail for
    2
    The verified petition of probation violation is not contained in the record on appeal.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015      Page 3 of 12
    these matters, [Trammell] committed a felony, to wit: Identity Deception . . . .”
    
    Id. at 68.
    A hearing was set on the State’s petition for April 24, 2014.
    Trammell failed to appear at the hearing, the court revoked his bond in those
    causes, and a warrant was issued for his arrest. On May 19, 2014, he was
    arrested in Hamilton County, Ohio, on an unrelated theft charge, and he pled
    guilty to that charge on June 10, 2014. On June 13, 2014, he was extradited to
    Indiana.
    [7]   On December 3, 2014, the court held a hearing in both Cause Nos. 596 and
    1126, in which Trammell pled guilty to attempted theft as a class D felony and
    the State dismissed the remaining charges in Cause No. 596, and Trammell
    pled guilty as charged in Cause No. 1126. The same day, the court sentenced
    him in Cause No. 596 in accordance with the plea agreement to three years in
    the Department of Correction (“DOC”), and it set sentencing in Cause No.
    1126 for December 18, 2014. At the December 3, 2014 hearing, there was
    discussion regarding the amount of credit time to which Trammell was entitled,
    and the court in its judgment of conviction stated: “Further, the Court allows
    Counsel until December 18, 2014 to file a Motion for Jail Time Credit.” 
    Id. at 108.
    [8]   On December 16, 2014, Trammell filed his Calculation of Credit Time in which
    he asserted that he was entitled to 368 days in Cause No. 596, a number which
    is the sum of five days of credit time for the dates between June 11, 2013, and
    June 16, 2013, 175 days for the dates between June 20, 2013, and December 12,
    2013, and 188 days for the dates between May 19, 2014, and December 18,
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 4 of 12
    2014. He asserted that he was entitled to 293 days in Cause No. 1126, which
    includes 105 days for the dates between August 29, 2013, and December 12,
    2013, and 188 days for the dates between May 19, 2014, and December 18,
    2014.
    [9]   On December 17, 2014, the State filed an Objection to Defendant’s Calculation
    of Credit Time and asserted that Trammell was entitled to twenty-two actual
    days of credit time in Cause No. 596, which included six days for the days
    between June 11, 2013, and June 17, 2013, and sixteen days between December
    2, 2014, when the warrant for his arrest was served upon him, and December
    18, 2014. In Cause No. 1126, the State asserted that Trammell was entitled to
    121 actual days of credit time, which included 105 days for the dates between
    August 29, 2013, and December 12, 2013, and sixteen days between December
    2, 2014, when the warrant for his arrest was served upon him, and December
    18, 2014. The State’s Objection also noted that Trammell “should not receive
    any credit for the time served at the Franklin County Security Center between
    June 20, 2013 and August 29, 2013, because during that period he was
    incarcerated there as a result of a probation violation in” Cause No. 486. 3 
    Id. at 113.
    3
    The State also noted in its Objection that Trammell is not entitled to any credit time following the bond
    revocation on April 24, 2014, for his time spent incarcerated in Hamilton County, Ohio, and/or Dearborn
    County, Indiana, because those days spent incarcerated were credited towards his convictions on the Ohio
    theft conviction and the charge of identity deception. Trammell does not assert on appeal that he is entitled
    to credit time for those days.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015           Page 5 of 12
    [10]   On December 18, 2014, the court held a hearing under both cause numbers,
    sentenced Trammell in Cause No. 1126 to three years in the DOC with one
    year suspended to probation, to be served consecutive to his sentence in Cause
    No. 596, and took the credit time issue under advisement. The next day, the
    court issued an Order Determining Credit Time in each cause number, and in
    Cause No. 596 awarded a total of 21 days of jail time credit, which included
    five days between June 11, 2013, and June 16, 2013, when he bonded out in
    that cause, and sixteen days between December 2, 2014, and December 18,
    2014. In Cause No. 1126, the court awarded a total of 122 days jail time credit,
    which included 106 days between the dates August 29, 2013, and December 12,
    2013, when he bonded out in that cause, and sixteen days between December 2,
    2014, and December 18, 2014.
    Discussion
    [11]   The issue is whether the court properly calculated and allocated Trammell’s
    credit time. Trammell argues that “[h]e received no credit in case 596 for time
    he spent in the Franklin County Security Center from June 16, 2013, to August
    29, 2013, while case 596 was pending.” Appellant’s Brief at 8. He suggests that
    the court erred in determining that he bonded out on June 16, 2013, because the
    chronological case summary (“CCS”) does not reflect that to be so, and states
    that he was incarcerated for the dates between June 16, 2013, and June 20,
    2013. He also asserts that, despite the fact that he was incarcerated in Cause
    No. 486 from June 20, 2013, to August 29, 2013, he is eligible for credit time for
    those days under Cause No. 596 because he had already served the executed
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 6 of 12
    portion of his sentence in Cause No. 486, the court in that case ordered him to
    serve ninety-one days of his previously suspended sentence, and he had already
    served 274 days of that sentence. He argues that the days between June 20,
    2013, and August 29, 2013, did not contribute to his sentence in Cause No. 486.
    He also argues, without citation to authority, that “the trial court erroneously
    credited 106 days of incarceration to case 1126 when that time should have
    credited to case 596” because Cause No. 596 was filed earlier than Cause No.
    1126. 
    Id. [12] The
    State argues that the trial court properly calculated Trammell’s credit time
    for his conviction in Cause No. 596, including for five days between June 11,
    2013, and June 16, 2013, and sixteen days between December 2, 2014, and
    December 18, 2014, for a total of twenty-one days. The State asserts, however,
    that the court erroneously calculated his credit time for his conviction in Cause
    No. 1126, noting that although the 106 days between August 29, 2013, and
    December 12, 2013, were proper, the court’s decision to award Trammell
    sixteen days for the time between December 2, 2014, and December 18, 2014,
    was error because the court had already awarded him credit for these days
    under Cause No. 596. The State posits that to the extent Trammell suggests he
    is entitled to credit time for the days between June 16, 2013, and June 20, 2013,
    he waived this argument because he failed to present a complete record for this
    assertion. The State also notes that Trammell did not raise this argument below
    and indeed claimed that he bonded out on June 16, 2013 at the hearing.
    Regarding Trammell’s argument that he is entitled to credit time in Cause No.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 7 of 12
    596 for days spent incarcerated between June 16 (or June 20), 2013, and August
    29, 2013, the State argues that “[t]his argument implies that the order to serve
    91 days came before [Trammell] served the 274 days, when actually the reverse
    is true,” and that the court decided in January 2014 in Cause No. 486 to order
    him to serve the remaining ninety-one days of his sentence in that cause.
    Appellee’s Brief at 10. Finally, the State responds to Trammell’s argument that
    the 106 days should have been applied to his sentence in Cause No. 596, rather
    than Cause No. 1126, by nothing that he was arrested in Cause No. 1126 on
    August 29, 2013, and was released on bond on December 12, 2013, and that
    accordingly the court correctly assigned those days to Cause No. 1126.
    [13]   “Generally, because pre-sentence jail time credit is a matter of statutory right,
    trial courts do not have discretion in awarding or denying such credit.”
    McAllister v. State, 
    913 N.E.2d 778
    , 782 (Ind. Ct. App. 2009). A defendant is
    entitled to credit for the time spent in confinement before sentencing. 
    Id. (citing Robinson
    v. State, 
    805 N.E.2d 783
    , 789 (Ind. 2004); Ind. Code § 35-38-3-2(b)(4)).
    When a defendant is incarcerated on multiple offenses and is ordered to serve
    his sentences consecutively, he is not entitled to double credit. French v. State,
    
    754 N.E.2d 9
    , 17 (Ind. Ct. App. 2001). The prohibition against an award of
    “double credit” applies when a defendant has arguably been incarcerated at the
    same time on more than one offense if the sentences for the multiple offenses
    are to be served consecutively. 
    Id. Credit is
    calculated from the date of arrest to
    the date of sentencing for that same offense. 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 8 of 12
    [14]   First, we find Trammell’s argument that he was incarcerated between June 16,
    2013, and June 20, 2013, to be unsupported by the facts presented. The record
    reveals that on June 16, 2013, Trammell completed bond paperwork to bond
    out on his arrest under Cause No. 596 and that he was served with a bench
    warrant on the probation violation under Cause No. 486 on June 20, 2013.
    Before the trial court, Trammell did not request credit time for this period.
    Rather, in his Calculation of Credit Time filed with the court, Trammell
    asserted that he was entitled to credit time for the dates between June 11, 2013,
    and June 16, 2013 and between June 20, 2013, and December 12, 2013.
    Further, he testified at the December 18, 2014 hearing that he “bonded out on
    June 16th. . . . The check never cleared and I was rearrested on June 20 th.”
    Transcript at 21. Trammell is not entitled to credit time for the dates between
    June 16, 2013, and June 20, 2013.
    [15]   Second, regarding Trammell’s argument that he has not been awarded seventy
    days of credit time on any cause for the time he spent incarcerated between
    June 20, 2013, and August 29, 2013, we disagree. The record reveals that his
    arrest on June 20, 2013, was pursuant to a bench warrant issued in the
    probation revocation case, Cause No. 486. He spent the next seventy days
    incarcerated until August 29, 2013, when the court in that cause held a hearing
    and entered an order stating that Trammell was entitled to 274 days credit in
    that case. That same day, he was served an arrest warrant in Cause No. 1126,
    and he remained incarcerated under that cause until December 12, 2013, when
    he bonded out. Then, on January 21, 2014, the court in Cause No. 486 held a
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 9 of 12
    probation revocation hearing and ordered that Trammell “shall receive Ninety-
    one (91) days of the previous suspended sentence to be executed in the Franklin
    County Security Center, consecutive to any other cause.” Appellant’s
    Appendix at 340. Trammell was initially sentenced in Cause No. 486 to 365
    days, and prior to the January 21, 2014 hearing he had earned credit totaling
    274 days. Thus, he was ordered in January 2014 to serve the remaining ninety-
    one days of his previously-suspended sentence, and his argument that the 274
    days were to be credited in that cause against the revocation of ninety-one days
    is erroneous.4 We find that the seventy days earned between June 20, 2013, and
    August 29, 2013 were credited at the August 29, 2013 hearing in the sum of 274
    days earned in Cause No. 486.
    [16]   Third, to the extent Trammell suggests that the court erred in assigning the 106
    days he earned between August 29, 2013, and December 12, 2013, because the
    crime of attempted theft was charged in Cause No. 596 prior to the check fraud
    charge filed in Cause No. 1126, we note that he does not cite to relevant
    authority for the proposition. Accordingly, he has waived this issue. See Cooper
    v. State, 
    854 N.E.2d 831
    , 834 n.l (Ind. 2006) (holding that the defendant’s
    contention was waived because it was “supported neither by cogent argument
    nor citation to authority”); Shane v. State, 
    716 N.E.2d 391
    , 398 n.3 (Ind. 1999)
    (holding that the defendant waived argument on appeal by failing to develop a
    cogent argument); Smith v. State, 
    822 N.E.2d 193
    , 202-203 (Ind. Ct. App. 2005)
    4
    365 days, Trammell’s sentence in Cause No. 486, minus 274 days of credit, equals 91 days left to serve.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015           Page 10 of 12
    (“Generally, a party waives any issue raised on appeal where the party fails to
    develop a cogent argument or provide adequate citation to authority and
    portions of the record.”), trans. denied. Further, we observe that Trammell was
    sentenced to three years in the DOC in Cause No. 596 and three years with one
    year suspended in Cause No. 1126, and those sentences were ordered to be
    served consecutively. Consequently, whichever sentence the 106 days are
    credited against will not affect his aggregate sentence.
    [17]   Finally, to the extent that the State asserts that the court erred in awarding
    sixteen days of credit time for the dates between December 2, 2014, and
    December 18, 2014, under both Cause Nos. 596 and 1126, we note that it
    concedes “[t]he prosecutor incorrectly calculated [Trammell’s] credit time for
    [Cause No. 1126] by including these 16 days.” Appellee’s Brief at 8 n.1.
    Accordingly, we conclude that the State invited this error and decline to
    decrease Trammell’s credit time on his sentence in Cause No. 1126 in this
    regard. See Kingery v. State, 
    659 N.E.2d 490
    , 494 (Ind. 1995) (“A party may not
    invite error, then later argue that the error supports reversal, because error
    invited by the complaining party is not reversible error.”), reh’g denied.
    Conclusion
    [18]   For the foregoing reasons, we affirm the court’s calculation and allocation of
    credit time.
    [19]   Affirmed.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 11 of 12
    Kirsch, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 24A01-1504-CR-275 | December 31, 2015   Page 12 of 12