Jeffery A. Sarver v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 30 2016, 6:06 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery A. Sarver, June 30, 2016
Appellant-Defendant, Court of Appeals Case No.
34A02-1601-CR-47
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Judge
Trial Court Cause No.
34D01-0609-FA-762
Altice, Judge.
Case Summary
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[1] Jeffery A. Sarver appeals following the revocation of his probation. He claims
the trial court abused its discretion by ordering the sentence to be served
consecutively to a sentence imposed in another cause for a crime committed
while on probation in the instant case. Sarver also asserts that the abstract of
judgment contains an error regarding credit time.
[2] We affirm.
Facts & Procedural History
[3] On December 19, 2007, pursuant to a plea agreement, Sarver pled guilty to
Class B felony aiding, inducing, or causing dealing in cocaine, which was
reduced from a Class A felony. In exchange for the plea, the State also
dismissed a habitual offender enhancement. The trial court sentenced Sarver in
accordance with the plea agreement to fifteen years in the Department of
Correction (the DOC) with ten years executed and five years suspended to
supervised probation.
[4] Sarver was released from the DOC in March 2011. On April 9, 2015, the State
filed a petition to revoke alleging that Sarver had: (1) failed to report to
probation on or after August 6, 2013; (2) failed to notify his probation officer
regarding new criminal charges that resulted in a conviction in October 2013 for
class A misdemeanor operating a vehicle while intoxicated (OWI) endangering
a person, under cause number 27D03-1307-CM-106; and (3) failed to notify his
probation officer that new criminal charges had been filed against him in
December 2014 for Level 6 felony possession of cocaine, Level 6 felony OWI
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with an ACE of .08 or more, and Level 6 felony obstruction of justice, under
cause number 34D01-1412-F6-945 (F6-945). Sarver subsequently admitted the
allegations contained in the petition. On August 12, 2015, the trial court
ordered Sarver to execute 102 days of his previously suspended sentence, which
had been satisfied prior to the hearing, and extended his probation for a period
of 183 days. The court ordered that the sentence in this cause and the sentence
in F6-945 be served consecutively. Further, the court ordered as a condition of
probation, among others, that Sarver successfully complete the Re-Entry
Program offered by Howard County Community Corrections.
[5] On October 14, 2015, Sarver was terminated from the Re-Entry Program due to
repeated use of controlled substances. This led to the immediate filing of a
second petition to revoke, and Sarver’s admission that he had violated
probation. On December 23, 2015, the trial court revoked Sarver’s probation
and ordered him to serve the balance of his suspended sentence, 1723 days, in
the DOC. In its sentencing order, the court noted that Sarver had credit of “99
actual days or 198 credit days, day for day credit, served while awaiting
disposition in this matter.” Appendix at 211.
Discussion & Decision
[6] Sarver’s arguments on appeal are fleeting and without merit. He first
challenges the consecutive nature of this sentence to the sentence imposed in
F6-945. Aside from the fact that this was clearly required by Ind. Code § 35-50-
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1-2(e),1 we observe that Sarver did not appeal the August 12, 2015 revocation
order that expressly made the sentences consecutive. Accordingly, he may not
now be heard to complain about this on appeal from the subsequently issued,
December 23, 2015 revocation order.
[7] Next, Sarver claims that the abstract of judgment entered on December 31,
2015, does not comply with the sentencing order with respect to credit time. As
set forth above, the trial court indicated in its sentencing order that Sarver had
credit time of “99 actual days or 198 credit days”. Appendix at 211. The
abstract of judgment indicates that he had accrued time of 99 days and good
time credit of 99, which in our calculation would total 198 days of credit time.
See Ind. Code § 35-50-6-0.5 (defining accrued time, credit time, and good time
credit). There is no discrepancy in this regard between the court’s order and the
abstract of judgment.
[8] Judgment affirmed.
[9] Bailey, J. and Bradford, J., concur.
1
The statute provides in pertinent part: “If, after being arrested for one (1) crime, a person commits another
crime…before the date the person is discharged from probation… for the first crime…the terms of
imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried
and sentences are imposed.” Id. (emphasis supplied). Sarver was on probation in this matter when he was
charged and convicted in F6-945.
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