Randall L. Capatina v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 07 2019, 8:26 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Randall L. Capatina Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randall L. Capatina, August 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1093
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1207-FD-1024
02D06-1208-FC-278
Tavitas, Judge.
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Case Summary
[1] Randall L. Capatina appeals from the denial of his petitions for jail time credit
relating to his convictions and sentences in separate causes. We affirm.
Issues
[2] Capatina raises two issues on appeal, which we restate as follows:
1. Whether the trial court erred in imposing consecutive
sentences.
2. Whether the trial court abused its discretion in denying
Capatina’s petition for jail time credit.
Facts
[3] This case involves Capatina’s petition for additional jail time credit relating to
convictions and sentences entered between 2012 to 2015 in three separate
causes in two counties. The timeline of pertinent events is as follows:
• July 2012 – Capatina was charged in Allen County, Cause 02D06-1207-
FD-1024 (“FD-1024”) with pointing an unloaded firearm at another
person, a Class A misdemeanor, and battery resulting in bodily injury, a
Class A misdemeanor.
• August 2012 – Capatina was charged in Allen County, Cause 02D06-
1208-FC-278 (“FC-278”) with disarming a law enforcement officer, a
Class C felony, while Capatina was on bond in FD-1024.
• December 2012 – Capatina was sentenced on each count of FD-1024, to
one year, six months executed, and six months suspended to probation,
with the sentences to be served concurrently.
• March 2013 – Capatina was sentenced in FC-278 to four years executed,
and two years suspended to probation, with the sentences to be served
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consecutively to Capatina’s sentences in FD-1024. Capatina was
awarded 123 days of jail time credit.
• June 2014 – Capatina began serving probation.
• October 14, 2014 – While Capatina was on probation in FD-1024 and
FC-278, Capatina was arrested in Whitley County in 92C01-1410-F4-117
(“F4-117”) for various offenses. Capatina remained incarcerated in
Whitley County until May 18, 2015, or 218 days.
• October 17, 2014 - The State filed petitions to revoke probation in FD-
1024 and FC-278.
• May 19, 2015 – Capatina was transported to Allen County, where he
remained incarcerated through June 2, 2015, or fourteen days.
• April 23, 2015 – Capatina was sentenced, in F4-117, as follows:
o Count I, dealing in a narcotic drug, a Level 4 felony, eight years,
with six years executed and two years suspended to probation;
o Count II, possession of a narcotic drug, a Level 6 felony, two years
in DOC, to be served concurrently with Count I; and
o Count III, maintaining a common nuisance, a Level 6 felony, two
years executed, to be served concurrently with Counts I and II.
• June 2, 2015 – Capatina’s probation was revoked in FD-1024 and FC-
278.
o In FD-1024, Capatina was committed to the Department of
Correction (“DOC”) for 182 days on each of the two counts, with
the sentences ordered to be served concurrently with one another,
but consecutively to his sentences in FC-278 and F4-117.
o In FC-278, Capatina was committed to DOC for two years, with
the sentence ordered to be served consecutively to his sentences in
FD-1024 and FC-117. Capatina was not awarded jail time credit
at revocation in either cause.
[4] In March 2018, Capatina filed petitions for jail time credit regarding FD-1024
and FC-278. On March 19, 2018, the Allen County probation department filed
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reports regarding Capatina’s eligibility for jail time credit in each cause. The
FD-1024 probation report provides:
[In FD-1024, Capatina] was sentenced to one (1) year Allen
County Jail, (183) days executed, and (182) days suspended, in
Counts II and IV, on December 21, 2012. The counts were
ordered served concurrent[ly] to each other and [Capatina] was
time served at sentencing. [Capatina] was on bond for [FD-1024]
when he committed an offense, in 02D06-1208-FC-278, which
was ordered served consecutive[ly] to [FD-1024].
[Capatina] began probation on June 5, 2014 and a Verified
Petition for Revocation of Probation was filed on October 17,
2014, due to the defendant committing a new offense in Whitley
County cause number [F4-117]. On June 2, 2015, [Capatina]
was ordered revoked from probation and committed to the Allen
County Jail for (182) days on Count II and Count IV. The
counts were ordered served concurrent[ly] to each other and the
sentence was ordered served consecutive[ly] to [FC-278] and [F4-
117]. [Capatina] was awarded zero (0) days of jail time credit at
the time of revocation.
[Capatina] is requesting the Court grant him an additional (92)
days of jail time credit, as he was being held and confined for
multiple offenses during the same time period. [Capatina] was
arrested in Whitley County, on October 14, 2014 and all time
from that date to present is being applied toward the sentence in
Whitley County cause [F4-117]. According to the Indiana
Department of Correction, [Capatina] is scheduled to complete
the executed portion of the Whitley County conviction on May
29, 2019, at which time he will serve [FC-278], until May 29,
2020. Upon completion of those cases in the Department of
Correction, [Capatina] will be returned to the Allen County Jail
to satisfy the sentence in [FD-1024].
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[Capatina] has been awarded all of the jail time credit for which
he is eligible. Therefore, it is recommended that the Motion for
Jail Time and Earned Time Credit be denied.
Id. at 80.
[5] The FC-278 probation report provides:
[In FC-278, Capatina] was sentenced to six (6) years Indiana
Department of Correction, four (4) years executed, and two (2)
years of probation. He was awarded (123) days of jail time credit
at the time of sentencing. [Capatina] began probation on June 5,
2014, and on October 17, 2014, a Verified Petition for
Revocation of Probation was filed, due to [Capatina] committing
a new offense in Whitley County. The defendant’s probation
was revoked on June 2, 2015, and he was ordered committed to
the Indiana Department of Correction for two (2) years. He was
not awarded any jail time credit at the time of the revocation and
the sentence was ordered served consecutive[ly] to [FD-1024]
and [F4-117].
[Capatina] was arrested in Whitley County on October 13, 2014
and remained in custody until he was sentenced in Whitley
County on May 18, 2015. He was transferred to the Allen
County Jail on May 19, 2015, and remained there until he was
transported to the Indiana Department of Correction on June 5,
2015. [Capatina] remains in the Indiana Department of
Correction with an Earliest Possible Release Date of May 29,
2020.
At the time of sentencing in [F4-117], the defendant was awarded
jail time credit from October 13, 2014 until May 18, 2016 (216)
days. This officer contacted the Indiana Department of
Correction and confirmed all time from the sentencing date, in
[F4-117], until he satisfies the sentence, on May 29, 2019, is
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being applied toward that sentence. Upon completion of the
Whitley County sentence, he will begin serving the sentence in
the present case, followed by the sentence in [FD-1024].
[Capatina] was not awarded any jail time credit at the time of the
revocation and is not entitled to any. It is recommended the
Motion for Jail Time and Earned Time Credit be denied.
Id. at 81.
[6] On April 18, 2018, and July 5, 2018, the trial court denied Capatina’s petitions
for jail time credit in FD-1024 and FC-278, respectively, “without hearing.” Id.
at 78. The trial court’s order in FC-278 specifically provides: “. . .[T]he Court
finds that the time claimed by [Capatina] for credit in [FC-278] was in fact
ordered to other causes which are running consecutively with [FC-278].” Id. at
79. Capatina now appeals the denial of his petitions for jail time credit.
Analysis
[7] Capatina’s motion for jail time credit is essentially a motion to correct an
erroneous sentence. See Ind. Code § 35-38-1-15. We review a ruling on a
motion to correct an erroneous sentence only for an abuse of discretion. Hobbs
v. State, 71 N.E.3d 46, 48 (Ind. Ct. App. 2017), trans. denied. An abuse of
discretion occurs if the trial court’s decision is against the logic and effect of the
facts and circumstances before it. Id.
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1. Consecutive Sentences
[8] First, Capatina argues that the trial court erred in ordering his sentences in FD-
1024, FC-278, and F4-117 to be served consecutively. The decision to impose
consecutive sentences rests within the discretion of the trial court. Gross v. State,
22 N.E.2d 863, 869 (Ind. Ct. App. 2014), trans. denied. In general, a trial court
cannot order consecutive sentences in the absence of express statutory
authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).
[9] The versions of Indiana Code section 35-50-1-2 in effect at the time of
Capatina’s sentencing in FD-1024, FC-278, and F4-117 each provided:
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
(B) 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.
I.C. §§ 35-50-1-2(d)(2012), (2013), (2015).
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[10] The record here reveals that: (1) while Capatina was on bond for FD-1024, he
committed a new offense, FC-278; (2) while Capatina was on probation in FD-
1024 and FC-278, he was arrested for committing new offenses in F4-117; and
(3) Capatina’s probation in FD-1024 and FC-278 was subsequently revoked.
Thus, pursuant to Indiana Code Section 35-50-1-2, the trial court was
statutorily required to impose mandatory consecutive sentences. See Garner v.
State, 646 N.E.2d 349, 351 (Ind. Ct. App. 1995) (affirming imposition of
consecutive sentences when defendant committed a new offense after he was
released on bond or on his own recognizance); see Bischoff v. State, 704 N.E.2d
129, 130-31 (Ind. Ct. App. 1998) (“Because sentence was imposed in the
handgun case before Bischoff’s probation was revoked in the OWI case, the
court in the OWI case was required[,] upon revoking Bischoff’s probation[,] to
require that the sentences be served consecutively.”). The trial court did not
abuse its discretion in imposing consecutive sentences. 1
2. Jail Time Credit and Earned Credit Time
[11] Capatina also argues that he is entitled to additional jail time credit in FD-1024
and FC-278 because he was “confined for multiple offenses during the same
period.” Appellant’s Br. p. 15. He maintains he “is eligible for 229 days credit
1
To the extent that Capatina also challenges the sequence in which his consecutive sentences must be served,
this issue is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (“Issues raised for the first time
on appeal are waived.”).
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but seek[s] 92 ninety-two days [jail time credit and earned credit time] in FD-
1024” and 229 days of jail time credit in FC-278. App. Vol. II pp. 49, 64.
[12] Pre-sentence jail time credit is a matter of statutory right, not a matter of
judicial discretion. Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000).
Indiana inmates imprisoned awaiting trial or sentencing earn Class I jail time
credit or “one (1) day of credit time for each day [the inmate] is imprisoned for
a crime or confined awaiting trial or sentencing.” I.C. § 35-50-6-3(a).
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.
Credit is to be applied for time spent in confinement that is the
result of the charge for which the defendant is being sentenced.
Bischoff v. State, 704 N.E.2d 129, 130 (Ind. Ct. App. 1998) (citations omitted).
[13] Jail time credit operates differently depending on whether the sentences are
consecutive or concurrent. Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995). In
concurrent sentencing cases, Indiana Code section 35-50-6-3 entitles the
individual to receive credit time applied against each separate term; however, in
consecutive sentencing cases, pretrial credit is awarded against the total or
aggregate of the sentence terms. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.
App. 2000), trans. denied.
[14] As we have already found, the trial court properly imposed mandatory
consecutive sentences in FD-1024, FC-278, and F4-117, pursuant to Indiana
Code Section 35-50-1-2(d)(2012). The record further reveals that, after
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Capatina was arrested for the offenses alleged in F4-117, Capatina was
incarcerated—from October 13, 2014 until May 18, 2015 or 216 days—for F4-
117. Accordingly, in sentencing Capatina in F4-117, the trial court applied 216
days of jail time credit to Capatina’s sentence. See Bischoff, 704 N.E.2d at 130
(“Credit is to be applied for time spent in confinement that is the result of the
charge for which the defendant is being sentenced.”).
[15] Based on the foregoing, the trial court’s determination of Capatina’s jail time
credit is not against the logic and effect of the facts and circumstances before the
court. Capatina was properly ordered to serve mandatory consecutive
sentences and, therefore, is ineligible for application of jail time credit to each
separate sentence, as such would improperly result in double credit and would
allow Capatina to serve a portion of his sentences concurrently. See Corn, 659
N.E.2d at 558-59; see Diedrich v. State, 744 N.E.2d 1004, 1007 (Ind. Ct. App.
2001) (affirming denial of petition for jail time credit that limited defendant to
only one credit for the period of incarceration because defendant was required
to serve his sentences consecutively where defendant committed a second
offense while on bond). We find no abuse of discretion.
Conclusion
[16] The trial court did not abuse its discretion in imposing consecutive sentences or
in denying Capatina’s petition for jail time credit. We affirm.
[17] Affirmed.
Crone, J., and Bradford, J., concur.
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