Phong Tien v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Jul 09 2013, 6:24 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:
DANIELLE L. GREGORY GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PHONG TIEN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-CR-23
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben B. Hill, Judge
Cause No. 49F18-1201-FD-5216
July 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Phong Tien (“Tien”) brings this belated appeal, pursuant to Indiana Post-Conviction
Rule 2, claiming that he is subject to an erroneous sentence upon his conviction for Theft, a
Class D felony.1 He presents the sole issue of whether his sentence is erroneous because the
trial court failed to specify credit time earned in pre-trial confinement. We affirm.
Facts and Procedural History
During the evening hours of January 23, 2012, Mark Fausett (“Fausett”), a loss-
prevention employee at Meijer on Washington Street in Indianapolis, was monitoring video
of the self-scan checkouts. Fausett observed Tien with two bottles of wine. Tien twice
scanned the less expensive bottle, bagged both bottles, paid the displayed charge, and
proceeded toward the exit. Fausett approached Tien to discuss the transaction. He calculated
the loss to Meijer as $4.00. Tien apologized and said that he had been running low on
money.
Tien was arrested and charged with Theft. At the conclusion of a bench trial, he was
convicted as charged. Tien was sentenced to 730 days incarceration in the Indiana
Department of Correction to be served as follows: 180 days executed (90 days in home
detention and 90 days of daily reporting), and 550 days suspended to supervised probation.
The Order of Judgment of Conviction indicated that Tien was entitled to 24 days credit for
time spent in confinement before sentencing “plus 24 days good time credit.” (App. 16.) An
Abstract of Judgment was submitted to the Department of Correction. It indicated that Tien
1
Ind. Code § 35-43-4-2. This statute has been re-codified. We refer to the statute in effect at the time of
Tien’s offense.
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was in confinement 24 days prior to sentencing. The abstract form did not specify credit time
earned. This appeal ensued.
Discussion and Decision
Tien and the State agree that Tien, as of the time of his sentencing, had 24 actual days
of time served, and that he was entitled to another 24 days for credit time, for a total of 48
days. The State contends that Tien was given proper credit at sentencing, while Tien claims
that he has not been given credit time of 24 days and asks that we remand the matter with
instructions to the trial court to enter a new sentencing order specifying this credit time.
Indiana Code Section 35-50-6-3 provides that Indiana prisoners are placed into a class
for the purpose of earning credit time.2 Each inmate who is not a credit restricted felon is
initially assigned to Class I, whereby he or she earns one day of credit time for every day
imprisoned for a crime or confined awaiting trial or sentencing. Ind. Code § 35-50-6-4(a).
Pursuant to Indiana Code Section 35-38-3-2, trial courts are required to certify copies of the
judgment of conviction to the receiving authority, and this sentencing order is to include the
amount of credit, including credit time earned, for time spent in confinement before
sentencing.
An inmate who believes he has been erroneously sentenced may file a motion to
correct the sentence pursuant to Indiana Code Section 35-38-1-15, which 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
2
Credit time is a statutory award for a lack of conduct that violates institutional rules. State v. Mullins, 647
N.E.2d 676, 678 (Ind. Ct. App. 1995).
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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.
Such a motion may only be filed to address a sentence that is erroneous on its face. Neff v.
State, 888 N.E.2d 1249, 1251 (Ind. 2008). An inmate’s allegation that the trial court has not
included credit time earned in its sentencing is the type of claim appropriate for a motion to
correct sentence. Id. However, the Indiana Supreme Court, in Robinson v. State, 805 N.E.2d
783 (Ind. 2004), adopted a presumption that “[s]entencing 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.” Id. at 792.
Here, the trial court’s Order of Judgment of Conviction specified that Tien was
entitled to 24 days credit for time spent in confinement before sentencing “plus 24 days good
time credit.” (App. 16.) The section for Sentencing Comments included the notation
“(Credit for 24 plus 24).” (App. 16.) The trial court’s abstract of judgment did not include
such a specification. Nonetheless, even if the abstract of judgment had functioned as the
judgment of conviction, the Robinson presumption would be applicable.
Tien has been awarded credit time for his presentence incarceration. He has
demonstrated no sentencing error.
Affirmed.
NAJAM, J., and BARNES, J., concur.
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