Carneal v. State , 2007 Ind. App. LEXIS 30 ( 2007 )

OPINION

CRONE, Judge.

Case Summary

Seott Carneal appeals the sentence imposed after the revocation of his probation. Raising an equitable argument, Carneal asserts: "The trial court erred when it failed to grant [him] credit for time served in Illinois, because [he] had entered into a contract with Illinois, which provided that his Indiana sentence would run concurrent with his Illinois sentence." Appellant's Br. at 2. We affirm.

Facts and Procedural History

On April 16, 2002, Carneal was charged in Monroe County with fraud and forgery, both as class C felonies. Appellant's App. at 15. On October 9, 2003, after pleading guilty to the fraud charge, Carneal received an eight-year sentence, with five years and fifteen days suspended. Id. at 17. Carneal was awarded 534 days of credit for time served and then placed on probation ¹ for the remainder of his sentence. Id.

On January 11, 2004, Carneal violated probation by traveling to Illinois, where he committed a new offense, possession of a stolen vehicle. Id. at 20. On February 4, 2004, in Indiana, a petition to revoke Car-neal's suspended sentence was filed. On February 10, 2004, the court in Indiana issued a warrant for Carneal. Id. at 23.

On or about September 24, 2004, Car-neal pled guilty to the Illinois offense and received a four-year sentence. Id. at 20. According to the Illinois plea agreement/judgment/sentencing order, Car-neal's four-year sentence for the Illinois offense was to be "served concurrent with the sentence imposed in" Carneal's Indiana fraud case. Id. Upon being notified of Carneal's incarceration in Illinois, the State (of Indiana) moved to recall the February 10, 2004 warrant, asked that the petition to revoke remain pending, and requested that a summons be issued for Carneal in January 2006. Id. at 21. The motion was granted. Id. at 22.

Carneal served twenty months for his Illinois offense before being placed on parole. On January 11, 2006, the court in Indiana issued a second arrest warrant when Carneal failed to appear for his initial hearing regarding the revocation petition. Id. at 28. Later that month, Car-neal was arrested and extradited to Indiana. Id. at 28-24. At a hearing on March 15, 2006, Carneal admitted to violating his probation. Id. at 25; Tr. at 3-6. In response, the court in Indiana ordered that Carneal serve the previously suspended five-year, fifteen-day sentence, with credit for fifty-one days. Appellant's App. at 25.

Discussion and Decision

Carneal contends that it was "inappropriate" for him not to receive credit for the time he served in Illinois, and he cites Indiana Appellate Rule 7(B). See Appellant's Br. at 3, 5, 6. Indiana Appellate Rule 7(B) provides: "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Yet, Carneal specifically states that he is "not asking [us] to look at the nature of his offense or his conduct[,]" and instead focuses upon his "good faith reliance" and on the "disparity of incarceration time between consecutive and concurrent sentences." Appellant's Br. at 5. As such, Carneal's argument is more properly categorized as a challenge to the court's sentencing discretion.

We review a trial court's sentencing decision in a probation revocation proceeding for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs "if the decision is against the logic and effect of the facts and circumstances before the court." Whatley v. State, 847 N.E.2d 1007, 1009 (Ind.Ct.App.2006). Generally speaking, as long as the trial court follows the procedures outlined in Indiana Code Section 35-38-2-8, the court may require a probationer to serve his previously suspended sentence. Crump v. State, 740 N.E.2d 564, 573 (Ind.Ct.App.2000), trams. denied. More specifically, if the court "finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may: ... order execution of all or part of the sentence that was suspended at the time of initial sentencing." Ind.Code § 85-38-2-3(g)(3).²

During a hearing on the petition to revoke probation, Carneal admitted the following violations:

(1) Failing to report a change of address and phone number within 48 hours.

(2) Failing to report to scheduled appointments as directed.

(3) Failing to complete treatment as directed.

(4) Knowingly, intentionally, or recklessly failing to pay fees as directed.

Appellant's App. at 18; Tr. at 3-6. Car-neal also admitted to having committed a new offense in Illinois while on probation for his Indiana crime. Tr. at 3-6. In addition, Carneal discussed the Ilinois plea agreement, the advice he had received around that time, and his understanding of the situation. Id. at 18-20.

Presented with the aforementioned evidence, the court revoked Carneal's probation³ and chose not to award credit to Carneal in his Indiana case for time he was confined in Illinois as a result of his Tilinois offense. The parties have presented, and we have located, no caselaw or statutory law that would indicate that the Indiana court abused its discretion in this regard. To the contrary, what guidance we do have convinees us that the court in Indiana was within its discretion in not crediting Carneal in his Indiana case for the time he served in Illinois as a result of his Illinois offense.

In Willoughby v. State, 626 N.E.2d 601 (Ind.Ct.App.1993), we noted: "Determination of a defendant's pretrial credit is dependent upon (1) pretrial confinement, and (2) the pretrial confinement being a result of the criminal charge for which sentence is being imposed." Id. at 602 (citing Ind.Code § 35-50-6-3 and Cohen v. State, 560 N.E.2d 1246, 1249 (Ind.1990)). Stated otherwise, "credit is to be applied for confinement time that is a result of the charge for which the defendant is being sentenced. In essence, each court is responsible only for crediting time in conFinement as a result of the charge for which that court is sentencing the defendant." Id. at 602-03 (emphasis added). Carneal served time in Illinois for the offense he committed in that state. In revoking Carneal's probation, the court in Indiana was imposing sentence for the crime that Carneal committed in Indiana. Thus, the court was responsible for crediting time for the Indiana crime, not for crediting time for a separate crime committed in a different state.

Not only was the Indiana court's decision consistent with the rule in Willough-by, it was in keeping with the logic of the following Indiana statute:

If, after being arrested for one (1) crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or

(2) while the person is released:

(A) upon the person's own recognizance; or

on bond;

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.

Ind.Code § 35-50-1-2(d) (emphasis added). Indeed, per this statute, had the subsequent crime been committed in Indiana, consecutive sentencing would have been mandatory. Not awarding Car-neal credit in his Indiana case for the time that he served in Illinois achieves the goal of Indiana Code Section 35-50-1-2(d).

Indisputably, the Indiana court's decision not to award credit for the Illinois time-served conflicts with Carneal's plea agreement in Illinois. However, because neither the State of Indiana nor the Monroe Circuit Court was a party to the Illinois plea agreement, neither was bound by its terms. See Debro v. State, 821 N.E.2d 367, 372 (Ind.2005) (noting a plea agreement "is contractual in nature, binding the defendant, the State and the trial court.").

In resolving this case, we acknowledge that during Carneal's proceedings in Illinois, he apparently received inaccurate guidance regarding Indiana law. Whether it was his Illinois parole officer, his Illinois lawyer if he had one, and/or the Tilinois court who provided this erroneous information makes no difference to our analysis.⁴ Carneal's misunderstanding in IHli-nois, while unfortunate, does not affect our conclusion that the Indiana court did not abuse its discretion in refusing to award him credit in Indiana for time that he served in Illinois for an offense he committed in Illinois.

Affirmed.

SHARPNACK, J., concurs. SULLIVAN, J., dissents with opinion.

1 . The trial court included two years of supervised probation within its order. Appellant's App. at 17.

2 . Indiana Code Section 35-38-2-3 was amended, effective July 1, 2005, to explicitly allow a trial court to order execution of "all or part of" a probationer's suspended sentence. PL. 13-2005. See also Stephens v. State, 818 N.E.2d 936, 941-42 (Ind.2004). It is worth noting that a court cannot, upon revoking probation, order a sentence longer than the one that was originally set out (albeit suspended) in a plea agreement. See Cox v. State, 850 N.E.2d 485, 490-91 (Ind.Ct.App.2006). The Indiana court in Carneal's case complied with this rule.

3 . Carneal wisely does not challenge the sufficiency of the evidence to support the revocation of his probation. See Sanders, 825 N.E.2d 952 (concluding no abuse of discretion when court ordered defendant, following revocation of probation, to serve her five-year suspended sentence for forgery where defendant admitted to probation violations, including two new convictions and failing to appear for appointment with probation officer).

4 . Carneal's recourse, if any, does not lie with us. See, e.g., Gann v. State, 550 N.E.2d 803, 804 (Ind.Ct.App.1990) (noting that when the failure of counsel is based on ignorance of the law, the nonfeasance is not deemed a mere strategy decision and may constitute ineffective assistance of counsel).