Barbara Bell-Shannon v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 23 2019, 7:22 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Michael Vo Sherman
Certified Legal Intern
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barbara Bell-Shannon, August 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-381
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff Judge
Trial Court Cause No.
48C06-1402-FB-355
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 1 of 5
[1] Barbara Bell-Shannon appeals the trial court’s sentencing order, arguing that
the trial court erred when it omitted the correct credit time on her sanctions
order and abstract of judgment form. Finding that there was an error, we
remand with instructions that the trial court include the proper credit time.
[2] On March 9, 2015, Bell-Shannon pleaded guilty to one count of Class D felony
possession of methamphetamine. That same day, the trial court sentenced Bell-
Shannon to 36 months, with credit for 188 days she had already executed in the
Department of Correction and with the remaining 907 days suspended to
probation. Under the terms of her probation, Bell-Shannon could not be in
contact with a convicted felon, had to notify the probation office of any change
in address, and could not consume or possess any illegal or illicit substance.
[3] On December 23, 2015, the State filed a notice of violation of probation,
alleging that Bell-Shannon had failed to obtain a substance abuse evaluation,
pay required fees, and provide a current address. On February 2, 2016, the State
filed an amended notice of violation of probation, alleging that Bell-Shannon
had possessed a synthetic drug and had been in contact with a convicted felon.
Following a February 9, 2016, evidentiary hearing, the trial court ordered Bell-
Shannon committed to home detention for violating the terms of her probation.
[4] On March 7, 2016, Bell-Shannon tested positive for drugs and on April 6, 2016,
she fled from home detention. Once again, the State filed a notice of violation
Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 2 of 5
of probation on April 6, 2016. Following a January 18, 2019,1 evidentiary
hearing on this matter, the trial court found that Bell-Shannon had violated the
terms of her probation and ordered that she serve the remainder of her
previously-suspended sentence as a sanction. The trial court then calculated the
amount of time Bell-Shannon had been incarcerated and arrived at 324 days of
credit time. Neither the sanctions order nor the abstract of judgment form
included the 188 days of credit time Bell-Shannon had previously accrued.
[5] On March 22, 2019, Bell-Shannon filed a pro se motion for jail time credit,
arguing that the trial court had failed to include the 188 days that had been
documented on all previous sentencing orders. The trial court denied Bell-
Shannon’s motion. Bell-Shannon now appeals.
[6] Bell-Shannon’s sole argument on appeal is that the trial court erred by omitting
the 188 days of accrued credit time from the January 18, 2019, abstract of
judgment form and the sanctions order. When reviewing motions or requests to
alter allegedly erroneous sentencing orders, we defer to the trial court’s factual
findings and will reverse the trial court’s decision only when it is against the
logic and effect of the facts and circumstances before it. Brattain v. State, 777
N.E.2d 774, 776 (Ind. Ct. App. 2002).
1
The record does not reflect a reason for the nearly three-year delay, but we surmise that Bell-Shannon
absconded during that period.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 3 of 5
[7] Pursuant to Indiana Code section 35-38-3-2(b)(4), the judgment of conviction
and sentencing must include “the amount of credit time earned for time spent in
confinement before sentencing[.]” “[T]herefore, pre-sentence jail time credit is a
matter of statutory right, not a matter of judicial discretion.” Weaver v. State, 725
N.E.2d 945, 948 (Ind. Ct. App. 2000). Thus, a trial court does not have
discretion to omit or forego statutorily-afforded credit time on entries of
judgment. Here, the trial court committed a scrivener’s error and neglected to
include the 188-day credit time on both the sanctions order and the abstract of
judgment form. While motions to correct or modify sentence2 are not available
to challenge entries or omissions on solely an abstract of judgment form,
Robinson v. State, 805 N.E.2d 783, 794-95 (Ind. 2004), here, the judgment of
conviction—the sanctions order—also omits the 188-day credit time. In fact,
“[t]he State acknowledges that neither the trial court’s sanctions order nor the
abstract of judgment account for Bell-Shannon’s already-served 188-day
executed sentence.” Appellee’s Br. p. 11.3
2
We recognize that Bell-Shannon, here, filed a motion for jail time credit and not a motion to correct or
modify sentence. However, Bell-Shannon’s motion, in essence, sets out to correct a sentencing error, and we
will not dismiss her appeal by elevating form over substance.
3
The State goes on to explain how reversal and remand is unnecessary because this Court “must analyze the
trial court’s intent[.]” Appellee’s Br. p. 11. The State is making a mountain out of a proverbial mole hill. Bell-
Shannon is not trying to have her sentence reversed or reduced, and this Court need not analyze the “true
intent” behind the trial court’s sanctions order when it revoked Bell-Shannon’s probation. Rather, the trial
court sentenced Bell-Shannon yet omitted an important morsel of information from both the sanctions order
and the abstract of judgment form—namely, the 188 days of credit time she had accrued from before the
initial March 9, 2015, sentencing. We are simply asking that the trial court fix its error.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 4 of 5
[8] Accordingly, our inquiry ends here. Because neither the sanctions order nor the
abstract of judgment form contains the 188-day pre-sentence credit time, we
remand with instructions that the trial court include this information.
[9] The judgment of the trial court is remanded with instructions.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 5 of 5