Dennis James Draper, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 24 2017, 9:38 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James Harper Curtis T. Hill, Jr.
Harper & Harper, LLC Attorney General of Indiana
Valparaiso, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis J. Draper, III, April 24, 2017
Appellant-Defendant, Court of Appeals Case No.
64A03-1612-CR-2943
v. Appeal from the Porter Superior
Court
State of Indiana, The Honorable Roger V. Bradford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
64D01-0910-FB-10218
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 1 of 11
Case Summary
[1] On October 6, 2009, Appellant-Defendant Dennis J. Draper, III was charged in
Porter County with one count of Class B felony burglary (“the Porter County
case”). At some point before the Porter County case was resolved, Draper was
charged with and convicted of an unrelated charge of burglary in Lake County.
Draper subsequently pled guilty in the Porter County case to a lesser charge of
Class C felony burglary.
[2] The instant appeal involves the amount of pre-trial credit time granted to
Draper by the trial court in connection to time spent incarcerated in relation to
the Porter County case prior to his guilty plea. Appellee-Plaintiff the State of
Indiana (“the State”) concedes that Draper is entitled to some additional credit
time, but argues that Draper is not entitled to the entire amount of additional
credit time requested. Concluding that, as the State concedes, Draper is entitled
to some of the additional requested credit time, we affirm in part, reverse in
part, and remand to the trial court with instructions.
Facts and Procedural History
A. Facts Relating to the Porter County Case
[3] On October 4, 2009, in Porter County, Draper knowingly or intentionally broke
and entered the dwelling of Alex Skomac with the intent to commit theft
therein. Two days later, on October 6, 2009, Draper was charged with one
count of Class B felony burglary in the Porter County case. Draper was held in
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 2 of 11
relation to the Porter County case until he posted bond on October 30, 2009. A
bench warrant for Draper’s arrest was ordered in connection to the Porter
County case on February 1, 2010. Draper was arrested in connection to this
warrant on March 5, 2010, and was held in relation to the Porter County case
until he posted bond on April 5, 2010.
B. Facts Relating to the Lake County Case
[4] On May 22, 2010, Draper was arrested in connection to and charged under
Lake County Cause 45G04-1005-FB-48 (“the Lake County case”) with Class B
felony burglary. Draper subsequently pled guilty in the Lake County case and
was sentenced to a term of seven years.
C. Facts Relating to the Contested Periods of Pre-Trial
Confinement
[5] While Draper was in custody awaiting trial in the Lake County case, a second
bench warrant for Draper’s arrest was issued in the Porter County case on June
28, 2010 (“the June 28, 2010 bench warrant”).
[6] Draper was released from the Department of Correction (“DOC”) to parole in
connection to the Lake County case on July 9, 2013.
[7] On July 18, 2013, Draper was arrested in connection to the Porter County case.
He was released from incarceration after his previous bonds were reinstated by
the trial court on July 29, 2013.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 3 of 11
[8] On July 21, 2015, a third warrant for Draper’s arrest was issued in connection
to the Porter County case. Draper was arrested on this third warrant on July
30, 2015. Draper remained in custody until January 4, 2016, at which time he
pled guilty to Class C felony burglary. Draper was released on his prior bond
pending sentencing.
D. Facts Relating to Draper’s Sentence in the Porter County
Case
[9] On June 6, 2016, Draper failed to timely appear before the trial court in relation
to the Porter County case. He was subsequently taken into custody and held
without bond. On November 7, 2016, the trial court sentenced Draper in
connection to Porter County case to a term of four years in the DOC. In
sentencing Draper, the trial court found that Draper was entitled to 219 days of
credit for time spent incarcerated prior to sentencing.
[10] On November 22, 2016, Draper filed a pro se motion to correct error, in which
he claimed that the trial court had failed to award him certain pre-trial credit
time which he claimed that he was owed. The trial court denied Draper’s
motion on November 29, 2016. This appeal follows.
Discussion and Decision
[11] On appeal, Draper challenges the trial court’s denial of certain requested pre-
trial credit time. A determination of the amount of credit time a defendant is
entitled to receive for time spent confined prior to trial is dependent upon the
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 4 of 11
defendant’s (1) pre-trial confinement, and (2) the confinement being a result of
the criminal charge for which sentence is being imposed. Hall v. State, 944
N.E.2d 538, 542 (Ind. Ct. App. 2011) (citing Bischoff v. State, 704 N.E.2d 129,
130 (Ind.Ct.App.1998), trans. denied), trans. denied. “‘Pre-sentence jail time
credit is a matter of statutory right, not a matter of judicial discretion.’” Id.
(quoting Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)).
[12] At the time that Draper committed the burglary at issue in the Porter County
case, a defendant who was imprisoned for a crime or confined awaiting trial or
sentencing was initially assigned to Class I and earned one day of credit time
for each day that he was confined. Ind. Code § 35-50-6-3(a); Hall, 944 N.E.2d
at 542.
When a defendant is incarcerated on multiple unrelated charges
at the same time, a period of confinement may be the result of
more than one offense. Diedrich v. State, 744 N.E.2d 1004, 1005
(Ind. Ct. App. 2001). If a person is incarcerated awaiting trial on
more than one charge and is sentenced to concurrent terms for the
separate crimes, he is entitled to credit time applied against each
separate term. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.
App. 2000), trans. denied. However, “[w]here a defendant is
convicted of multiple offenses and sentenced to consecutive terms,
the jail credit is applied against the aggregate sentence.” Shane v.
State, 716 N.E.2d 391, 400 (Ind. 1999).
Hall, 944 N.E.2d at 542 (emphases added).
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 5 of 11
A. The Period of Time that Elapsed Between June 28, 2010
and July 17, 2013
[13] Draper claims that the trial court erred in denying his request for pre-trial credit
time for the period between June 28, 2010 and July 17, 2013. In support of this
claim, Draper asserts that he should be considered to have been confined in the
Porter County case starting on June 28, 2010, the date on which a warrant was
issued for his arrest. However, we have previously concluded that a defendant
is not confined for purposes of determining accrued credit time merely because
a warrant has been issue for his arrest. Willoughby v. State, 626 N.E.2d 601, 602
(Ind. Ct. App. 1993); Dolan v. State, 420 N.E.2d 1364, 1373 (Ind. Ct. App.
1981). Rather the confinement period begins when the defendant is actually
arrested on the warrant. Willoughby, 626 N.E.2d at 602; Dolan, 420 N.E.2d at
1373.
[14] In Willoughby, the defendant challenged the amount of pre-trial credit time
awarded to him by the trial court. Specifically, the defendant argued “that the
trial court should have credited him with time served from May 19, 1992, the
date the notice of probation violation was filed in Marion County, until April
21, 1993, because he was in continuous custody.” Willoughby, 626 N.E.2d at
602. Review of the relevant facts demonstrated that although the notice of
probation was filed on May 19, 1992, the defendant was not arrested and
transferred to Marion County pursuant to the probation violation notice until
November 12, 1992. Upon review, we noted that
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 6 of 11
The court in Dolan, under very similar facts, stated that Dolan
“should be credited for the time he spent in confinement from the
date of his arrest for the violation of probation (May 25, 1978) to
the date of his sentencing for the violation of probation
(December 28, 1978). Dolan spent that time under the arrest
warrant for the violation of probation.” 420 N.E.2d at 1373.
Id. We concluded that following the logic set forth in Dolan, the defendant
should be credited from November 12, 1992, until April 21, 1993, the time he
was confined under the arrest warrant for the violation of probation.
[15] In the instant matter, it is undisputed that Draper was confined in relation to
the Lake County case starting on May 22, 2010. An arrest warrant was issued
in connection to the Porter County case on June 28, 2010. However, Draper
was not arrested on this warrant until July 18, 2013. As such, pursuant to our
prior conclusions in Willoughby and Dolan, the earliest date to which Draper
could possibly be entitled to pre-trial credit in the Porter County case was July
18, 2013.1
[16] Furthermore, Draper is not entitled to receive pre-trial credit in the Porter
County case for the time which he was incarcerated for the Lake County case
as his sentences in the two cases were required to be run consecutively. At the
1
Draper seems to argue that the time he spent incarcerated with relation to the Lake County case also
applied to the Porter County case because a detainer was allegedly placed on him after the issuance of the
June 28, 2010 warrant. However, although Draper filed petitions to lift detainer while he was serving his
sentence in the Lake County case in March of 2012 and July of 2013, Draper’s petitions did not contain any
documentation which proves that a detainer from the June 28, 2010 warrant was actually placed on him, let
alone provides any indication as to when such a detainer was allegedly entered.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 7 of 11
time that Draper committed the burglary at issue in the Porter County case,
Indiana Code section 35-50-1-2(d)(2) provided that “[i]f, after being arrested for
one (1) crime, a person commits another crime … (2) while the person is
released … (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.” (Emphasis added). As is mentioned above, the Indiana Supreme
Court has held that “when consecutive sentences are involved, credit time is
deducted from the aggregate total of the consecutive sentences, not from an
individual sentence.” State v. Lotaki, 4 N.E.3d 656, 657 (Ind. 2014); see also
Shane, 716 N.E.2d at 400 (providing the same). Stated differently, “where
consecutive sentences are required, credit time cannot be earned against each of
the underlying sentences.” Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App.
2009).
[17] In Lotaki, the defendant was charged with battery of a prison employee while
incarcerated on an unrelated offense. 4 N.E.3d at 657. At sentencing for the
battery, the trial court awarded the defendant credit time for the time spent
incarcerated while awaiting trial. Id. However, the time that the defendant
spent time incarcerated awaiting trial on the battery charge was time he was
serving for the unrelated offense, and he received credit for that time against the
unrelated offense. Id. Upon review, the Indiana Supreme Court held that “[t]o
award credit for this time against the battery sentence rather than against the
aggregate of the consecutive sentences would result in more credit to which
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 8 of 11
[defendant] was entitled and would effectively enable him to serve part of the
consecutive sentences concurrently.” Id.
[18] It is undisputed that Draper committed the offense at issue in the Lake County
case while out on bond in the Porter County case. As such, pursuant to Indiana
Code section 35-50-1-2(d)(2), his sentences in the two cases were statutorily
required to be served consecutively. Because the sentences imposed in these
cases must be served consecutively, any accrued credit time must be applied to
the aggregate sentence, not to each individual sentence. See id. The record
reveals that credit for the time period in question was applied to the aggregate
sentence as it was attributed to the Lake County case. Draper does not allege,
much less prove, that he did not receive credit for the period in question applied
in the Lake County case. As such, we conclude that Draper has received full
credit for the period between June 28, 2010 and July 9, 2013, the date on which
he was released from incarceration in the Lake County case. To award Draper
additional credit for this time period would result in more credit than Draper
was entitled to and would effectively enable him to serve part of the consecutive
sentences concurrently. See id.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 9 of 11
B. The Period of Time that Elapsed Between July 18, 2013
and July 28, 2013
[19] However, as the State points out, Draper is entitled to additional credit time for
the period between July 18, 2013 and July 28, 2013.2 The record reflects that
Draper was arrested in connection to the June 28, 2010 warrant on July 18,
2013. It is undisputed that this warrant was issued in relation to the Porter
County case. Draper was confined in relation to this warrant until July 29,
2013, when he was released on his prior bonds. As such, on remand, the trial
court should award Draper pre-trial credit for the days he spent incarcerated
during the period between July 18, 2013 and July 28, 2013.
C. The Period of Time that Elapsed Between July 31, 2015
and January 4, 2016
[20] Draper also claims that the trial court erred in denying his request for pre-trial
credit time for the period between July 31, 2015 and January 4, 2016. The State
agrees that Draper was entitled to receive credit time for this period. The State
concedes that Draper was arrested on July 30, 2015, as a result of a warrant
issued in the Porter County case and was subsequently held in custody until
January 4, 2016, when he pled guilty and was released on his prior bonds
pending sentencing. As such, the State further concedes that the matter should
2
It does not appear that Draper was incarcerated during the period between his release in the Lake County
case on July 9, 2013 and his arrest in the Porter County case on July 18, 2013.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 10 of 11
be remanded to the trial court with instruction for the trial court to award
Draper credit for the period between July 31, 2015 and January 4, 2016.
Conclusion
[21] Draper is not entitled to the requested credit time for the period between June
28, 2010 and July 9, 2013. However, Draper is entitled to the requested credit
time for the period between July 18, 2013 and July 28, 2013. He is also entitled
to the requested credit time for the period between July 31, 2015 and January 4,
2016. Accordingly, on remand, the trial court should revise its sentencing order
to reflect this additional pre-trial credit.
[22] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 11 of 11