Larry Gene Gore v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of May 31 2012, 8:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HUGH N. TAYLOR GREGORY F. ZOELLER
Hugh N. Taylor, P.C. Attorney General of Indiana
Auburn, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY GENE GORE, )
)
Appellant-Defendant, )
)
vs. ) No. 76A03-1110-CR-491
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN CIRCUIT COURT
The Honorable Allen N. Wheat, Judge
Cause No. 76C01-1006-FA-543
May 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Larry Gene Gore appeals his sentence following his conviction for sexual battery,
as a Class D felony. Gore raises a single issue for our review, namely, whether the trial
court awarded him the correct amount of credit time. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 25, 2010, Michigan authorities arrested Gore on an outstanding warrant
for crimes committed while in Michigan. At the time, Indiana also had a warrant out for
Gore’s arrest for unrelated crimes committed in Indiana. On December 13, 2010,
following exoneration1 on the Michigan charges, Michigan authorities extradited Gore to
Indiana pursuant to our warrant.
Gore pleaded guilty to sexual battery, as a Class D felony, which the trial court
accepted. On September 12, 2011, the trial court held Gore’s sentencing hearing. There,
Gore asserted that he was entitled to credit time for 444 days incarceration, based on his
initial arrest in Michigan. The trial court disagreed and, in sentencing Gore, awarded him
276 days of credit time for time served within Indiana.2 This appeal ensued.
DISCUSSION AND DECISION
Gore contends on appeal that he is entitled to 444 days credit time for time served
in Michigan. “Because pre-sentence jail time credit is a matter of statutory right, trial
courts generally do not have discretion in awarding or denying such credit.” Molden v.
1
It is not clear from the appellate record whether Gore was acquitted by a fact-finder after a trial.
2
There is no dispute that the State took custody of Gore on December 13, 2010, which is 272
days before he was sentenced. It is also not disputed that the court entered the award of 276 days based
on the State’s own evidence. Neither party suggests on appeal that the apparent error between the 272
days Gore was held in Indiana and the 276 days the court credited to him is grounds for a remand.
2
State, 750 N.E.2d 448, 449 (Ind. Ct. App. 2001). However, as we have explained, “[o]ur
case law is clear that a defendant is not entitled to credit for time served on wholly
unrelated offenses.” James v. State, 872 N.E.2d 669, 672 (Ind. Ct. App. 2007). The
appellant bears the burden on appeal of demonstrating that the award of credit time was
erroneous.
Here, the time Gore served in Michigan before he was extradited to Indiana on
December 13, 2010, was on wholly unrelated charges in Michigan. While Gore was
served with the Indiana warrant upon his arrest in Michigan, he was not extradited to
Indiana until he had been exonerated of the Michigan allegations. And Gore’s assertion
to the trial court and this court that he was arrested in Michigan solely based on the
Indiana warrant, and then by happenstance tried on outstanding Michigan charges, is not
persuasive. Gore has not demonstrated that he was imprisoned in Michigan solely as a
result of the Indiana criminal charges. See Nutt v. State, 451 N.E.2d 342, 345 (Ind. Ct.
App. 1983). Accordingly, Gore has not met his burden of showing that the trial court’s
award of 276 days credit time is erroneous.
Affirmed.
RILEY, J., concurs.
DARDEN, J., dissents with separate opinion.
3
IN THE
COURT OF APPEALS OF INDIANA
LARRY GENE GORE, )
)
Appellant-Defendant, )
)
vs. ) No. 76A03-1110-CR-491
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
DARDEN, Judge, dissenting
I respectfully dissent. Generally, “‘[a] defendant who is awaiting trials on
different crimes during the same period of time and who is convicted and sentenced
separately on each should have full credit applied on each sentence.’” Brown v. State,
907 N.E.2d 591, 595 (Ind. Ct. App. 2009) (quoting Dolan v. State, 420 N.E.2d 1364,
1372 (Ind. Ct. App. 1981)). The credit for time served prior to sentencing “will be the
number of days the defendant spent in confinement from the date of arrest for the offense
to the date of sentencing for that same offense.” Dolan, 420 N.E.2d at 1373 (emphasis
added). This is true even if the defendant is serving time in a foreign jurisdiction pending
extradition. See Nutt v. State, 451 N.E.2d 342, 345 (Ind. Ct. App. 1983).
4
For credit time purposes, a defendant is considered under “arrest” when Indiana
authorities place a “hold” on the defendant while the defendant is being held in another
jurisdiction. See Nutt, 451 N.E.2d at 346. Accordingly, I believe Gore is entitled to
credit for pre-sentence time, if any, served in Michigan from the time Indiana issued a
“hold” to the date the trial court sentenced Gore on the Indiana-based charges.3 I
therefore would reverse and remand for a further hearing on the credit time due Gore.
3
I agree that Gore should not receive any credit time for time served in Michigan only on the Michigan
charges and during such time, if any, Indiana did not place a hold on him. Allowing credit for such time
certainly would be giving Gore credit for time served on “wholly unrelated offenses.” See Dolan, 420
N.E.2d at 1373.
5