Roderick Bunnell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2019, 10:55 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Roderick Bunnell Curtis T. Hill, Jr.
Plainfield, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roderick Bunnell, December 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-864
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G03-9807-PC-117604
Barteau, Senior Judge.
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Statement of the Case
[1] Roderick Bunnell appeals the denial of his motion to correct erroneous
sentence. We affirm.
Issue
[2] Bunnell raises one issue, which we restate as: whether the trial court erred in
denying his motion to correct erroneous sentence.
Facts and Procedural History
[3] A jury determined Bunnell was guilty of criminal deviate conduct, attempted
rape, and criminal confinement. He was also determined to be an habitual
offender. The trial court imposed a sentence of thirty years, with “140 days
credit time.” Appellant’s App. Vol. 2, p. 6. Bunnell appealed, and a panel of
this Court affirmed his convictions. Bunnell v. State, Case No. 49A02-9901-CR-
26 (Ind. Ct. App. July 16, 1999), trans. denied.
[4] Next, Bunnell filed a petition for post-conviction relief, which he later
withdrew. In 2005, 2006, and 2007, he filed motions for additional jail credit
time, which the trial court denied. Also, in 2007, Bunnell filed a motion to
correct erroneous sentence, which the trial court denied.
[5] In 2008, Bunnell filed another motion for additional jail credit time. The trial
court ordered the State to file a response. The court denied Bunnell’s motion
after the State filed its response.
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[6] Bunnell later refiled his petition for post-conviction relief, and the parties
submitted evidence by affidavit. On July 15, 2011, the post-conviction court
denied Bunnell’s petition.
[7] In 2012, the Indiana Department of Correction (“DOC”) released Bunnell to
parole. He later violated the terms of his parole and was returned to the DOC.
In 2015, Bunnell filed another motion for jail time credit, which the trial court
denied.
[8] Next, Bunnell filed with this Court a petition for leave to file a successive
petition for post-conviction relief. A panel of this Court denied Bunnell’s
petition. Bunnell v. State, 49A02-1606-SP-1361 (Ind. Ct. App. July 18, 2016).
[9] On February 16, 2018, Bunnell filed another petition for additional credit time.
On March 14, 2018, the State filed a response in opposition and a motion for
summary disposition. The trial court granted the State’s request and summarily
denied Bunnell’s petition.
[10] On March 14, 2019, Bunnell filed another motion to correct erroneous
sentence, along with a supporting memorandum. The trial court denied
Bunnell’s motion on March 15, 2019. This appeal followed.
Discussion and Decision
[11] Bunnell argues the original sentencing court failed to award him all of the credit
time to which he was entitled arising from his presentencing confinement. The
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State responds that under the Indiana Supreme Court’s precedent, Bunnell has
failed to demonstrate reversible error.
[12] Motions to correct erroneous sentence are governed by Indiana Code section
35-38-1-15 (1983), 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 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.
[13] When an error related to sentencing occurs, it is in the best interests of all
concerned that it be immediately discovered and corrected. Robinson v. State,
805 N.E.2d 783, 786 (Ind. 2004). The purpose of Indiana Code section 35-38-1-
15 is to provide prompt, direct access to an uncomplicated legal process for
correcting the occasional erroneous or illegal sentence. Davis v. State, 937
N.E.2d 8, 10 (Ind. Ct. App. 2010), trans. denied.
[14] A motion to correct erroneous sentence is “narrowly confined to claims
apparent from the face of the sentencing judgment.” Robinson, 805 N.E.2d at
787. “Claims that require consideration of the proceedings before, during, or
after trial may not be presented by way of a motion to correct sentence.” Id.
“An allegation by an inmate that the trial court has not included credit time
earned in its sentencing is the type of claim appropriately advanced by a motion
to correct sentence.” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008).
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[15] We review a trial court’s ruling on a motion to correct erroneous sentence for
an abuse of discretion. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct. App.
2015). An abuse of discretion occurs when a trial court’s decision is “clearly
against the logic and effect of the facts and circumstances.” Joyner v. State, 678
N.E.2d 386, 390 (Ind. 1997).
[16] Bunnell argues the sentencing order is erroneous because, in addition to
receiving 140 days for time spent in presentencing confinement, he was entitled
to an additional day of credit time for each day he was jailed, and the order
does not explicitly award an additional 140 credit days. The State does not
dispute that Bunnell was entitled to the additional 140 days of good credit time.
Instead, the State claims the Indiana Supreme Court’s decision in Robinson
disposes of Bunnell’s claim. We agree.
[17] In Robinson, a defendant claimed the trial court’s sentencing order was
erroneous because it failed “to separately include designation of both time
served and the amount of credit time thus earned.” 805 N.E.2d at 788. The
Indiana Supreme Court, citing Indiana Code section 35-38-3-2, noted that trial
courts are required to set forth the amount of credit time earned for
presentencing confinement. The Court further stated many trial courts had
failed to include credit time earned in their sentencing orders, perhaps due to
“inconsistent . . . direction” from appellate courts. Id. at 792.
[18] As a result, the Indiana Supreme Court clarified, “a trial court's sentencing
judgment must include both days imprisoned before sentencing and the credit
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time earned thereby, thus reflecting any credit time deprivation imposed before
sentencing.” Id. When a sentencing order sets forth days spent in presentence
confinement but fails to mention credit time earned, the Indiana Supreme Court
adopted the following appellate presumption: such an order “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.
[19] A panel of this Court applied the Robinson presumption in Pettiford v. State, 808
N.E.2d 134 (Ind. Ct. App. 2004). In Pettiford, the sentencing order stated the
number of days Pettiford had served in presentence confinement, but the order
omitted the number of days of “good time credit.” Id. at 135. Pettiford filed a
motion to correct erroneous sentence, which the trial court denied. The Court
of Appeals noted that, according to the holding in Robinson, courts presume an
award of pre-sentence confinement time includes an equal number of credit
time days. As a result, the sentencing judgment was correct, and the trial court
did not err in denying Pettiford’s motion to correct erroneous sentence.
[20] In Bunnell’s case, applying the reasoning set forth in Robinson and Pettiford, we
understand the original sentencing order as awarding an amount of good time
credit equal to the number of days served in presentencing confinement. The
sentencing order complies with statutory mandates and does not need to be
corrected.
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[21] Bunnell further claims the DOC has erroneously failed to include 140 days of
good time credit in calculating his earliest possible release date. That claim
goes beyond the face of his sentencing order and may not be raised in a motion
to correct erroneous sentence. The trial court did not abuse its discretion in
denying Bunnell’s motion to correct erroneous sentence.
Conclusion
[22] For the reasons stated above, we affirm the judgment of the trial court.
[23] Affirmed.
Najam, J., and Altice, J., concur.
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