Joe E. Mourey v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 24 2016, 9:50 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amanda O. Blackketter Gregory F. Zoeller
Blackketter Law, LLC Attorney General of Indiana
Shelbyville, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joe E. Mourey, August 24, 2016
Appellant-Defendant, Court of Appeals Case No.
73A04-1603-CR-599
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Chris Monroe,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
73D01-1405-FB-33
Pyle, Judge.
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Statement of the Case
[1] Joe Mourey (“Mourey”) appeals the trial court’s award of credit time for his
pre-sentence incarceration. The trial court awarded Mourey seventy-seven (77)
days of credit for pre-sentence incarceration but did not specify the award of an
additional seventy-seven (77) of good time credit.1 Mourey requests that he
receive credit for these additional days. However, pursuant to Robinson v. State,
805 N.E.2d 783, 789 (Ind. 2004), where the trial court’s order fails to specify the
additional good time credit, both courts and the Department of Correction
(“DOC”) understand that these days are automatically awarded. We therefore
find no error and affirm.
[2] We affirm.
Issue
Whether the trial court erred in calculating Mourey’s credit time
for his pre-sentence incarceration.
Facts
[3] In May 2014, the State charged Mourey with six counts. Mourey pleaded
guilty to three counts, and the State dismissed the other charges. In June 2015,
the trial court sentenced Mourey for the three convictions. Because Mourey
1
There are two different “time credits” that a defendant may earn: (1) “credit for time served[,]” which is
the “credit toward the sentence a prisoner receives for time actually served[;]” and (2) “good time credit[,]”
which is the “additional credit a prisoner receives for good behavior and educational attainment.” Purcell v.
State, 721 N.E.2d 220, 222 (Ind. 1999), reh’g denied.
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and the State disputed Mourey’s credit time, the trial court held a hearing on
that issue after the sentencing hearing. Thereafter, the trial court awarded
Mourey seventy-seven (77) days of accrued credit time for pre-sentence
incarceration. The trial court’s order did not specify additional good time credit
days. However, the Abstract of Judgment states that Mourey was awarded
seventy-seven (77) days of accrued time credit as well as seventy-seven (77) days
of good time credit. Mourey appeals the trial court’s failure to include the
seventy-seven (77) days of good time credit in its sentencing order.
Decision
[4] At the outset, we note that both parties agree that Mourey was entitled to
seventy-seven (77) days of accrued credit for time served. They also both agree
that Mourey is entitled to an additional seventy-seven (77) days of good time
credit.
[5] “Under the Indiana Penal Code, prisoners receive credit time that is applied to
reduce their term of imprisonment.” Robinson v. State, 805 N.E.2d 783, 789
(Ind. 2004). 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. Id. INDIANA CODE § 35-38-3-2 provides that the judgment of
conviction must include the amount of credit, including credit time earned, for
time spent in confinement before sentencing. In addition, the Indiana Supreme
Court has interpreted INDIANA 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
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defendant prior to imposition of the sentence and also the amount of credit time
earned in accordance with the defendant’s credit time class.” Robinson 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 presentence confinement days. Id, at 792.
[6] Here, Mourey “respectfully requests that he receive credit for the . . . additional
seventy-seven (77) days for good time credit” because the trial court’s order
included the seventy-seven (77) days of accrued credit time but did not
specifically include the additional seventy-seven (77) days of good time credit.
(Mourey’s Br. 5). However, pursuant to Robinson, both courts and the DOC
understand the good time credit days are automatically awarded under these
circumstances. The trial court did not err.2
[7] We affirm.
Bradford, J., and Altice, J., concur.
2
Mourey does not allege that DOC failed to give him the earned credit time. That would be a different
issue. If that was the case, Mourey would have to demonstrate that he presented his argument through the
relevant DOC administrative grievance process and that he exhausted his administrative remedies. See Young
v. State, 888 N.E.2d 1253, 1254 (Ind. 2008).
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