David Drummond v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                                        Feb 14 2018, 6:00 am
    this Memorandum Decision shall not be                                             CLERK
    Indiana Supreme Court
    regarded as precedent or cited before any                                        Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
    David Drummond                                           Curtis T. Hill, Jr.
    New Castle, Indiana                                      Attorney General of Indiana
    George P. Sherman
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    David Drummond,                                          February 14, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A04-1708-CR-1832
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Stanley E. Kroh,
    Appellee-Plaintiff.                                      Magistrate
    Trial Court Cause No.
    49G03-0108-CF-161376
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 1 of 9
    Statement of the Case
    [1]   David Drummond (“Drummond”), pro se, appeals the trial court’s order
    denying his motion to correct erroneous sentence, in which he challenged the
    trial court’s 2002 abstract of judgment that listed Drummond’s days spent in
    presentence confinement but did not expressly designate the corresponding
    credit time earned and the Indiana Department of Correction’s computations of
    his release date and amount of credit time during leap years. Because any error
    in the trial court’s 2002 abstract of judgment is deemed to have been corrected
    by the presumption set forth by the Indiana Supreme Court in Robinson v. State,
    
    805 N.E.2d 783
    (Ind. 2004), and because a motion to correct erroneous
    sentence is limited to correcting sentencing errors apparent on the face of the
    judgment and Drummond raises issues outside of this context, we conclude that
    the trial court did not abuse its discretion by denying his motion to correct
    erroneous sentence.
    [2]   We affirm.
    Issue
    Whether the trial court abused its discretion by denying Drummond’s
    motion to correct erroneous sentence.
    Facts
    [3]   In 2002, a jury found Drummond guilty of Class A felony child molesting, and
    the trial court imposed a fifty (50) year sentence. In the abstract of judgment,
    the trial court listed that Drummond had spent 267 days in pre-sentence
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 2 of 9
    confinement, but it did not expressly designate the corresponding credit time
    earned.
    [4]   Fifteen years later, in July 2017, Drummond, pro se, filed a motion to correct
    erroneous sentence and a motion for a hearing.1 He argued that his sentence
    was erroneous because the trial court’s 2002 abstract of judgment listed
    Drummond’s days spent in pre-sentence confinement but did not expressly
    designate the corresponding credit time earned. He also alleged that the
    Indiana Department of Correction had incorrectly computed his release date
    and amount of credit time during leap years. Drummond asserted that he had
    exhausted his administrative remedies “to the best of his ability” and attached
    multiple exhibits to his motion.2 (App. Vol. 2 at 70). The trial court denied
    Drummond’s motions. Drummond now appeals.
    Decision
    [5]   Drummond appeals the trial court’s denial of his motion to correct erroneous
    sentence pursuant to INDIANA CODE § 35-38-1-15. We review a trial court’s
    1
    Following the imposition of Drummond’s sentence, he filed numerous pleadings, including a post-
    conviction petition and multiple motions for sentence modification. He also requested and was granted
    permission to file a successive post-conviction petition relating to educational credit. Drummond currently
    has a pending appeal from the denial of his successive post-conviction petition. See Court of Appeals Cause
    Number 17A-PC-3041.
    2
    These exhibits included letters to and various grievance forms filed with his correctional facility and the
    Indiana Department of Correction, as well as his own and the Department of Correction’s calculation of
    credit time and release date. Drummond’s calculation of credit time was computed in accordance with the
    instructions set forth in Neff v. State, 
    888 N.E.2d 1249
    (Ind. 2008) and included a projected release date of
    March 12, 2023 or March 13, 2023. The Department of Correction’s calculation, dated May 5, 2017,
    indicates that Drummond had “JTC” or jail time credit of 267 days and a “PRD” or projected release date of
    March 18, 2023. (App. Vol. 2 at 101).
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 3 of 9
    denial of a motion to correct erroneous sentence for an abuse of discretion,
    which occurs when the trial court’s decision is against the logic and effect of the
    facts and circumstances before it. Davis v. State, 
    978 N.E.2d 470
    , 472 (Ind. Ct.
    App. 2012).
    [6]   An inmate who believes he has been erroneously sentenced may file a motion
    to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v. State,
    
    888 N.E.2d 1249
    , 1250-51 (Ind. 2008). INDIANA CODE § 35-38-1-15 provides:
    If the convicted person is erroneously sentenced, the mistake
    does not render the sentence void. The sentence shall be
    corrected after written notice is given to the convicted person.
    The convicted person and his counsel must be present when the
    corrected sentence is ordered. A motion to correct sentence must
    be in writing and supported by a memorandum of law
    specifically pointing out the defect in the original sentence.
    “The purpose of the statute ‘is to provide prompt, direct access to an
    uncomplicated legal process for correcting the occasional erroneous or illegal
    sentence.’” 
    Robinson, 805 N.E.2d at 785
    (quoting Gaddie v. State, 
    566 N.E.2d 535
    , 537 (Ind. 1991)).
    [7]   A statutory motion to correct erroneous sentence “may only be used to correct
    sentencing errors that are clear from the face of the judgment imposing the
    sentence in light of the statutory authority.” 
    Robinson, 805 N.E.2d at 787
    .
    “Such claims may be resolved by considering only the face of the judgment and
    the applicable statutory authority without reference to other matters in or
    extrinsic to the record.” Fulkrod v. State, 
    855 N.E.2d 1064
    , 1066 (Ind. Ct. App.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 4 of 9
    2006). “Use of the statutory motion to correct sentence should thus be
    narrowly confined to claims apparent from the face of the sentencing judgment,
    and the ‘facially erroneous’ prerequisite should henceforth be strictly applied[.]”
    
    Robinson, 805 N.E.2d at 787
    . Where, as here, a defendant was convicted and
    sentenced in Marion County, which uses an abstract of judgment rather than a
    formal judgment of conviction, any error alleged in the defendant’s motion to
    correct erroneous sentence must be apparent from the face of the abstract of
    judgment. See 
    Neff, 888 N.E.2d at 1251
    (holding that, for cases stemming from
    Marion County, “the trial court’s abstract of judgment will serve as an
    appropriate substitute for purposes of making [a motion to correct erroneous
    sentence] claim”).
    [8]   Drummond argues that the trial court erred in denying his motion to correct
    erroneous sentence because: (1) the abstract of judgment entered by the trial
    court at the time of sentencing did not specifically designate the amount of
    credit time to which he was entitled for time spent incarcerated prior to
    sentencing; and (2) the Indiana Department of Correction did not apply his 267
    days of presentence credit time and incorrectly computed his release date and
    amount of credit time during leap years.3
    3
    Drummond also suggests that the trial court abused its discretion by denying his motion to have a hearing
    on his motion to correct erroneous sentence. He does not set forth any argument as to why or how the trial
    court’s denial of his hearing motion was an abuse of discretion; instead, he merely asserts that he “expected
    to have a hearing and be present at this hearing to allow him to make his argument[.]” (Drummond’s Br.
    26). Accordingly, he has waived his appellate argument regarding his hearing motion. See Griffith v. State, 
    59 N.E.3d 947
    , 958 n.5 (Ind. 2016) (explaining that the defendant had waived his argument by failing to present
    cogent argument; Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, neither the motion to correct
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018            Page 5 of 9
    [9]    In regard to Drummond’s first argument, we note that, at the time of
    Drummond’s sentencing, INDIANA CODE § 35-38-3-2(b) required a sentencing
    judgment to include “the amount of credit, including credit time earned, for
    time spent in confinement before sentencing[.]” I.C. § 35-38-3-2(b)(4). When a
    defendant’s judgment of conviction (or abstract of judgment for Marion County
    defendants) does not set forth the presentence credit time, our Indiana Supreme
    Court has explained that the following appellate presumption applies:
    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. In
    the event of any pre-sentence deprivation of credit time, the trial
    court must report it in the sentencing judgment. 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.
    
    Robinson, 805 N.E.2d at 792
    (footnote omitted).
    [10]   Here, the trial court’s abstract of judgment indicated that Drummond was
    “confined prior to sentencing” for 267 days. (App. Vol. 2 at 82). The abstract
    did not include a recitation of credit time; nor did it report any deprivation of
    credit time. As such, the trial court’s abstract of judgment is entitled to
    the Robinson presumption and any error contained therein is accordingly
    erroneous sentence statute nor caselaw requires a hearing be held on a motion to correct erroneous sentence.
    See I.C. § 35-38-1-15; Funk v. State, 
    714 N.E.2d 746
    , 752 (Ind. Ct. App. 1999), reh’g denied, trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 6 of 9
    corrected by application of this presumption. See 
    Robinson, 805 N.E.2d at 792
    ;
    Pettiford v. State, 
    808 N.E.2d 134
    , 136 (Ind. Ct. App. 2004). Accordingly,
    Drummond is presumed to have earned 267 days of credit time for the 267 days
    of his pretrial incarceration, and he “need not resort to our state court system in
    order for the time to be credited toward his sentence.” Young v. State, 
    888 N.E.2d 1253
    , 1254 (Ind. 2008). The trial court, therefore, did not err in denying
    Drummond’s motion to correct erroneous sentence. See 
    id. [11] Turning
    to Drummond’s argument regarding the Department of Correction’s
    failure to apply his earned credit time and its computation of his release date
    and credit time for leap years, we note that our supreme court recognized that
    “[i]t is, of course, possible that a prisoner could accidentally be deprived of
    earned credit time toward his sentence” and that “[t]he presumption
    in Robinson has the effect of treating such an accident as merely an
    administrative error that can be addressed by the Department of Correction
    (DOC) easily and efficiently through its offender grievance process.” 
    Id. Additionally, our
    supreme court held that when an offender believes the
    Department of Correction has “mistakenly failed to give an offender earned
    credit time, the offender must exhaust administrative remedies before seeking
    relief from a court.” 
    Neff, 888 N.E.2d at 1252
    . “[T]o present such a claim to a
    court, a petitioner must show what the relevant DOC administrative grievance
    procedures are, and that they have been exhausted at all levels.” 
    Young, 888 N.E.2d at 1254
    (emphasis added). “[A] petition for post[-]conviction relief is
    the proper vehicle for raising a credit-time claim after administrative remedies
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 7 of 9
    have been exhausted.” Ellis v. State, 
    58 N.E.3d 938
    , 940 n.1 (Ind. Ct. App.
    2016) (citing Young v. State, 
    888 N.E.2d 1255
    , 1256-57 (Ind. 2008)), trans. denied.
    Indeed, “all manner of claims of sentencing errors (other than those that do not
    require consideration of matters outside the face of the sentencing judgment),
    are addressed via post-conviction relief proceedings.” 
    Young, 888 N.E.2d at 1256
    (citing 
    Robinson, 805 N.E.2d at 787
    ).
    [12]   Here, Drummond’s allegations of error regarding the Department of Correction
    are not appropriate for a motion to correct erroneous sentence because the
    alleged errors are not clear from the face of the abstract of judgment. See
    
    Robinson, 805 N.E.2d at 787
    . Instead, the proper vehicle for Drummond to
    raise any credit-time claim is a post-conviction proceeding in which he must
    show: (1) what the relevant DOC administrative grievance procedures are; and
    (2) that they have been exhausted at all levels. See 
    Young, 888 N.E.2d at 1254
    ;
    
    Young, 888 N.E.2d at 1256
    -57; 
    Ellis, 58 N.E.3d at 940
    n.1. 4
    [13]   Drummond has improperly raised his claims of error in a motion to correct
    erroneous sentence. Additionally, Drummond alleged only that he believed
    that his administrative remedies had been exhausted, but he failed to set forth
    the relevant Department of Correction’s administrative grievance procedure,
    which was required to present such a claim. See 
    Young, 888 N.E.2d at 1254
    .
    4
    As Drummond has already had a post-conviction proceeding, he would be required to follow the
    procedure outlined in Post-Conviction Rule 1(12) for filing a successive post-conviction petition. As noted
    above, Drummond has already filed such a successive petition in regard to his educational credit time claim.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 8 of 9
    Because Drummond has failed to show that the trial court abused its discretion
    by denying his motion to correct erroneous sentence, we affirm the trial court’s
    judgment. See, e.g., 
    id. (explaining that
    “a petitioner must show what the
    relevant DOC administrative grievance procedures are[] and that they have
    been exhausted at all levels”); 
    Young, 888 N.E.2d at 1257
    (stating that if the
    defendant “hope[d] to prevail on his [credit-time] claim after he ha[d] properly
    presented it to the Court via post-conviction procedures” he would have to
    “show in the first place what the relevant DOC administrative grievance
    procedures are[] and then that he ha[d] exhausted them at all levels”).
    [14]   Affirmed.
    Kirsch, J., and Bailey, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 9 of 9