Michael B. Purdue v. State of Indiana

Feb 24 2016, 7:42 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael B. Purdue, February 24, 2016
Appellant-Defendant, Court of Appeals Case No.
03A01-1508-CR-1154
v. Appeal from the
Bartholomew Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Stephen R. Heimann, Judge
Trial Court Cause No.
03C01-1502-F6-1030
Kirsch, Judge.
[1] Michael B. Purdue (“Purdue”) appeals the sentencing order entered upon his
plea of guilty to one count of theft1 as a Level 6 Felony and one count of
1
See Ind. Code § 35-43-4-2(a)(1)(C).
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resisting law enforcement2 as a Class A Misdemeanor. On appeal, he raises the
following restated issue: whether he was denied full credit time3 for his pre-
sentence confinement.
[2] We reverse and remand.
Facts and Procedural History
[3] Purdue was arrested for theft and resisting law enforcement on January 29,
2015 and was held in the Bartholomew County Jail until January 31; at that
time he was not formally charged. A few weeks later, on February 22, Purdue
was arrested and charged with three new counts of theft under Cause No.
03C01-1503-F6-1180 (“Cause No. 1180”). Purdue was again released. On
February 27, 2015, the State charged Purdue, under Cause No. 03C01-1502-F6-
1030 (“Cause No. 1030”), for the acts he committed on January 29—one count
each of Level 6 felony theft and Class A misdemeanor resisting law
enforcement. While Purdue was not in custody at that time, it is clear that the
2
See Ind. Code § 35-44.1-3-1(a).
3
It bears repeating that there are two different “time credits” that a defendant may earn: “(1) the credit
toward the sentence a prisoner receives for time actually served, and (2) the additional credit a prisoner
receives for good behavior and educational attainment.” Perry v. State, 13 N.E.3d 909, 912 n.3 (Ind. Ct. App.
2014) (citing Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999)). About two weeks before Purdue was
sentenced, a new Indiana statute, Indiana Code section 35-50-6-0.5, became effective. The intent of that
statute was to provide some clarification in the area of credit time. Indiana Code section 35-50-6-0.5 set forth
the following definitions: (1) “accrued time” means the amount of time that a person is imprisoned or
confined; (2) “credit time” means the sum of a person’s accrued time, good time credit, and educational
credit; (3) “educational credit” means a reduction in a person’s term of imprisonment or confinement
awarded for participation in an educational, vocational, rehabilitative, or other program; and (4) “good time
credit” means a reduction in a person’s term of imprisonment or confinement awarded for the person’s good
behavior while imprisoned or confined. To promote clarification, we will use these designated terms.
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State made an attempt to serve him.4 On March 10, Purdue was arrested and
charged under Cause No. 03C01-1503-F6-1246 (“Cause No. 1246”) with Level
6 felony possession of methamphetamine, Level 6 felony possession of narcotic
drug, Class A misdemeanor criminal trespass, and Class A misdemeanor
possession of paraphernalia. On April 2, 2015, Purdue, citing all three cause
numbers in his caption, filed a Motion to Reduce Bond; after a hearing, the trial
court denied Purdue’s motion. Purdue remained in pre-trial confinement from
March 10 until July 16, 20155—a period of 128 days.
[4] On June 8, 2015, Purdue executed a “Waiver of Rights, Withdrawal of Plea of
Not Guilty and Plea of Guilty” (“the Plea Agreement”). Appellant’s App. at 8-
10. The Plea Agreement, as originally written, set forth that Purdue would
plead guilty to theft in Cause No. 1030 and possession of methamphetamine in
Cause No. 1246. It is not clear when, but, before Purdue signed it, a hand-
written change was made to the Plea Agreement, which crossed out the
possession charge in Cause No. 1246 and added the resisting law enforcement
charge in Cause No. 1030.6 Id. at 8. Purdue pleaded guilty to the two charges
4
A March 9, 2015 CCS entry for Cause No. 1030 provided, “Process receipt returned unserved—ex-wife
says he does not live here and he hasn’t for a long time.” Appellant’s App. at 2.
5
Both the State and the trial court cited to the last day of confinement as being July 15, 2015; however,
Purdue’s sentencing date was July 16, 2015, a date that is in fact 128 days from March 10, 2015.
6
A letter dated May 8, 2015, addressed to Purdue’s attorney and sent from the prosecutor’s office, reflects the
identical handwritten change that crossed out the possession charge under Cause No. 1246 and added the
resisting law enforcement charge under Cause No. 1030. That letter also provided that the State would
dismiss the remaining “counts and cause.” Appellant’s App. at 7. This apparently referred to the original
offer, suggesting that Cause No. 1180 and the remaining counts in Cause Nos. 1030 and 1246 would be
dismissed. Again, it is unclear when and by whom this change was made.
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alleged in Cause No. 1030 in exchange for the dismissal of Cause Nos. 1180
and 1246. The Plea Agreement was silent as to how much credit time Purdue
would be granted toward his sentence. The trial court accepted Purdue’s guilty
plea and entered judgment of conviction for the theft and resisting law
enforcement charges under Cause No. 1030. Tr. at 25.
[5] Purdue’s presentence investigation report (“PSI”) was submitted to the trial
court on June 29, 2015, and provided that Purdue would have 131 “actual jail
days” by the date of sentencing. Confidential App. at 2. At the sentencing
hearing, the trial court asked Purdue, “[I]s the [PSI] true and accurate in all
regards including the fact that you should receive 131 days of credit for time
served?” Tr. at 4. Purdue agreed that the PSI was correct, however, the State
voiced its disagreement concerning the amount of accrued time, reasoning:
The defendant was arrested under this cause [1030] I believe on
January 29, 2015 and was released in 48 hours. So I believe he
should have [three] days of credit there.[7] On March 10th of
2015, the defendant was actually arrested on a warrant in cause
ending [1246],8 which is one of the . . . cause numbers that is
going to be dismissed. So I do not believe the defendant is
entitled to credit for the dates from March 10th through 7/1[6].
7
We note that during the sentencing hearing, the trial court granted Purdue two days of credit; however, we
refer to three days of credit because that is the number of days referred to in the trial court’s Sentencing Order
and agreed to by the parties on appeal. Appellant’s Br. at 1, 7; Appellee’s Br. at 5, Tr. at 7.
8
The State referenced Cause No. 1180, however, from the State’s own facts, it appears that on March 10,
2015, Purdue was arrested under Cause 1246. Appellant’s Br. at 6.
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Id. at 5. The State argued that Purdue should get no accrued time for his 128
days of pre-trial confinement, from March 10 through July 16, 2015, because he
was not being confined as a result of Cause No. 1030. Id.[6] The trial court reviewed the records in all three causes and found that from
March 10 through July 16 Purdue was being confined in connection with only
the charges alleged under Cause Nos. 1180 and 1246. In its Sentencing Order,
the trial court stated:
The Court now sentences the defendant to the Indiana
Department of Correction for a period of two and one-half (2 ½)
years for Count 1, Theft, a Level 6 Felony. The defendant
receives zero days of credit.
The Court sentences the defendant to the Bartholomew County
Jail for a period of twenty-eight (28) days for Count 2, Resisting
Law Enforcement, a Class A Misdemeanor. The defendant
receives credit for three (3) days (1/29/15 to 1/31/1[6]) toward
this sentence.
Said sentences shall run consecutively to each other.
The defendant does not receive credit for time served in the
Bartholomew County Jail from March 10, 2015 to July 1[6],
2015 since those days were served under cause 03C01-1503-F6-
1180 and cause 03C01-1503-F6-1246.
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Appellant’s Br. at 6-7.9 Purdue now appeals. Additional facts will be added as
necessary.
Discussion and Decision
[7] Purdue contends that the trial court erred when it granted him just three days of
accrued time for pretrial confinement, claiming he was owed an additional 128
days.10 He argues that from March 10 until his sentencing on July 16, 2015, he
was imprisoned and awaiting trial for the offenses alleged in all three cause
numbers, and, therefore, he should be granted accrued time for those 128 days,
and if applicable, an additional 128 days of good time credit. The State
contends that Purdue was not entitled to receive those 128 days of accrued time
because that confinement was not “the result of the charge for which [he was]
being sentenced.” Appellee’s Br. at 5 (citing Bischoff v. State, 704 N.E.2d 129, 130
(Ind. Ct. App. 1998), trans. denied). In other words, the State maintains that
Purdue was only being confined under Cause Nos. 1180 and 1246, and
9
Purdue does not include the Sentencing Order in his Appendix, so for reference purposes we cite to its
location in his Brief.
10
Although the trial court granted three days of credit, we assume that that number reflected just accrued
time and not both accrued time and good time credit. If good time credit was appropriate, a grant of three
days of accrued time would have resulted in six days of credit time. See Rudisel v. State, 31 N.E.3d 984, 989
(Ind. Ct. App. 2015) (quoting Robinson v. State, 805 N.E.2d 783, 792 (Ind. 2004) (adopting appellate
presumption that “[s]entencing judgments that report only days spent in pre-sentence confinement [accrued
time] and fail to expressly designate credit time earned [good time credit] shall be understood by courts and
by the [DOC] automatically to award the number of credit time days [good time credit] equal to the number
of pre-sentence confinement days [accrued time].”)).
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therefore, he deserves no credit time against his sentence imposed for charges
alleged in Cause No. 1030.
[8] “‘Under the Indiana Penal Code, prisoners receive credit time that is applied to
reduce their term of imprisonment.’” Rudisel v. State, 31 N.E.3d 984, 988-89
(Ind. Ct. App. 2015) (quoting Robinson v. State, 805 N.E.2d 783, 789 (Ind.
2004)). “The time spent in confinement before sentencing applies toward a
prisoner’s fixed term of imprisonment.” Id. at 989. The amount of additional
credit is primarily determined by the prisoner’s credit time classification. Id. A
person who: (1) is not a credit restricted felon; and (2) is imprisoned for a Level
6 felony or a misdemeanor or imprisoned awaiting trial or sentencing for a
Level 6 felony or misdemeanor is initially assigned to Class A. Ind. Code § 35-
50-6-4. Because Purdue was not a credit restricted felon, as defined in Indiana
Code section 35-31.5-2-72, and since he had been charged with nothing greater
than a Level 6 felony under Cause Nos. 1030, 1180, and 1246, Purdue would
have been assigned to Class A. A person who commits an offense after June
30, 2014, and is assigned to Class A, “earns one (1) day of good time credit for
each day the person is imprisoned for a crime or confined awaiting trial or sentencing.”
Ind. Code § 35-50-6-3.1 (emphasis added). “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.” Perry v. State, 13 N.E.3d 909, 911 (Ind. Ct.
App. 2014) (citing Molden v. State, 750 N.E.2d 448, 449 (Ind. Ct. App. 2001)).
[9] Indiana treats pre-sentence imprisonment as a form of punishment. Brown v.
State, 262 Ind. 629, 635, 322 N.E.2d 708, 712 (Ind. 1975); House v. State, 901
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N.E.2d 598, 601 (Ind. Ct. App. 2009) (citing Williams v. State, 759 N.E.2d 661,
664 (Ind. Ct. App. 2001) (citing Weaver v. State, 725 N.E.2d 945, 947-48 (Ind.
Ct. App. 2000))). By enacting statutes that award credit for pre-sentencing
confinement, the General Assembly sought “to implement the guarantee of
common law and the Fifth Amendment to the U.S. Constitution against double
jeopardy.” Brown, 262 Ind. at 635, 322 N.E.2d at 712. Further, with an eye
toward avoiding equal protection violations, the statutes were drafted “to
equalize total confinement time among inmates serving identical sentences for
identical offenses by allowing those who cannot post bail before sentencing to
be given credit towards their sentence for pre-sentence imprisonment or
confinement.” Nutt v. State, 451 N.E.2d 342, 344 (Ind. Ct. App. 1983) (citing
Brown, 262 Ind. at 635, 322 N.E.2d at 712). Accordingly, during sentencing, a
trial court must strive to reach the balance between granting too little or too
much credit time, while keeping in mind that the grant of credit time, as
remedial legislation, “should be liberally construed in favor of those benefitted
by the statute.” See House, 901 N.E.2d at 601 (quoting Williams, 759 N.E.2d at
664) (credit time statutes, as remedial legislation, should be liberally construed
in favor of those benefitted by the statute).
[10] When a person incarcerated awaiting trial on more than one charge is
sentenced to concurrent terms for the separate crimes, Indiana Code section 35-
50-6-3.1 entitles him to receive credit time applied against each separate term.
Hall v. State, 944 N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied; Brown v.
State, 907 N.E.2d 591, 596 (Ind. Ct. App. 2009); Stephens v. State, 735 N.E.2d
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278, 284 (Ind. Ct. App. 2000), trans. denied. However, where a person is
sentenced to consecutive terms, credit time cannot be earned against each of the
underlying sentences. Hall, 944 N.E.2d at 542. As our Supreme Court recently
explained in State v. Lotaki, “[W]hen consecutive sentences are involved, credit
time is deducted from the aggregate total of the consecutive sentences, not from
an individual sentence.” 4 N.E.3d 656, 657 (Ind. 2014). To do otherwise
would “effectively enable [a defendant] to serve part of the consecutive
sentences concurrently.” Id.[11] During the sentencing hearing, the State conceded that Purdue should receive
three days of accrued time against his sentence, yet objected to Purdue being
granted accrued time for the other 128 days of pretrial confinement. The State
reasoned that since the 128 days were served awaiting trial on Cause Nos. 1180
and 1246, causes that were dismissed by the Plea Agreement, Purdue could not
get credit for those days against his sentence for Cause No. 1030. The trial
court agreed, and granted Purdue credit only for the accrued time for his
January 29 to January 31 confinement. We disagree with the trial court’s
decision.
[12] On February 27, the State charged Purdue with Level 6 felony theft and Class
A misdemeanor resisting law enforcement. Purdue’s Level 6 felony warranted
pretrial confinement. See Ind. Code § 35-33-1-1(a)(1), (a)(2) (person may be
arrested when law enforcement officer has a warrant for arrest or probable
cause to believe the person committed a felony). However, when the State
attempted to serve Purdue on March 9, “process receipt [was] returned
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unserved.” Appellant’s App. at 2. One day later, on March 10, Purdue was
arrested in connection with Cause No. 1246. Because Purdue was being held in
Bartholomew County Jail in connection with Cause Nos. 1180 and 1246, it was
unnecessary for the State to serve an additional warrant in connection with
Cause No. 1030. With or without a warrant, however, it was clear that, from
March 10 to July 16, Purdue was confined and awaiting trial or sentencing not
just for Cause Nos. 1180 and 1246, but also for Cause No. 1030.
[13] A person who commits an offense after June 30, 2014, and is assigned to Class
A, “earns one (1) day of good time credit for each day the person is imprisoned
for a crime or confined awaiting trial or sentencing.” Ind. Code § 35-50-6-3.111
(emphasis added). Prior to 1981, the predecessor to Indiana Code sections 35-
50-6-3.1 required the sentencing court to “give[] credit toward service of . . .
sentence for any days spent in confinement as a result of the criminal charge for
which sentence is imposed or as a result of the conduct on which such charge is
based. Ind. Code § 35-8-2.5-1 (repealed). Our court in Dolan v. State, 420
N.E.2d 1364, 1373 (Ind. Ct. App. 1981) recognized that under “the new statute,
IC 35-50-6-3, the Legislature omitted the ‘result of’ phraseology found under
the repealed provision” of Indiana Code section 35-8-2.5-1. Dolan, 420 N.E.2d
at 1373. Discussing the meaning of this omission, the Dolan court rejected that
Indiana Code section 35-50-6-3 “would allow a defendant convicted and
11
Indiana Code section 35-50-6-3 applies to a person who commits an offense before July 1, 2014. The only
difference between section 3 and section 3.1 is that the former refers to Class I, while the latter refers to Class
A.
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sentenced for one offense credit toward that one sentence for time spent
‘awaiting trial or sentencing’ for any offense.” Dolan, 420 N.E.2d at 1373(emphasis added). Such an interpretation and application of this legislation, the
court believed, “would be unreasonable and clearly violate the intent of the
Legislature.” Id. The Dolan court continued, “Although IC 35-50-6-3 allows a
defendant credit for time ‘confined awaiting trial or sentencing,’ we conclude
the Legislature clearly intended the credit to apply only to the sentence for the
offense for which the presentence time was served. Any other result would
allow credit time for time served on wholly unrelated offenses.” Id.[14] We agree that Purdue would not be entitled to credit time for days served on
wholly unrelated offenses; however, those are not the facts before us. Purdue was
charged under Cause Nos. 1030 and 1180 before he was arrested in connection
with Cause No. 1246; therefore, all three causes were pending during his 128
days of confinement. From the record before us, it is clear that the trial court,
as well as the parties, did not consider these three causes to be wholly unrelated.
All of the significant pleadings referenced all three cause numbers. On March
17, 2015, the trial court held an initial hearing, after which it issued an order,
the caption of which referenced Cause Nos. 1030, 1180, and 1246. Appellant’s
App. at 14. The order explained that Purdue had been advised of the charges
against him and of his rights. The trial court entered Purdue’s preliminary plea
of not guilty and set the omnibus date. Referring generally to all three cause
numbers, the trial court ordered, “These causes are set for trial by jury on June
23, 2015.” Id. at 14 (emphasis added). On April 2, 2015, the State filed its
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discovery, citing Cause Nos. 1030, 1180, and 1246 in its caption. Id. at 13.
That same day, Purdue, citing the same three cause numbers in his caption,
filed a Motion to Reduce Bond, which the trial court denied. Id. at 11, 12.
[15] Additionally, the record reflects that the three cause numbers, and the
underlying charges of each, were considered together during the give and take
process of plea negotiations. Initially, the State offered that it would allow
Purdue to plead guilty to one of the counts under Cause No. 1030 and to one of
the counts under Cause No. 1246, in exchange for dismissing Cause No. 1180
and the remaining counts in Cause Nos. 1030 and 1246. Only later did the
terms of the plea change to allow Purdue to plead guilty to both counts in
Cause No. 1030 in exchange for dismissing Cause Nos. 1180 and 1246.
Purdue’s Plea Agreement also referenced all three cause numbers. Given this
record, Cause Nos. 1180 and 1246 were not wholly unrelated to Cause No.
1030.
[16] Here, Purdue did not ask the trial court to grant accrued time for confinement
spent in another state or another county. He did not ask for double credit,
which would have effectively changed his consecutive sentences to concurrent
sentences. Instead, Purdue asked for the 128 days of accrued time that he
served in Bartholomew County Jail awaiting trials or sentencing on Cause Nos.
1030, 1180, and 1246, each of which could have warranted pretrial
confinement. Purdue can never be sentenced in connection with the dismissed
Cause Nos. 1180 and 1246. In the absence of being granted the relief he now
requests, Purdue will never get credit for the 128 days he spent in pretrial
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confinement while awaiting trial on these three cause numbers. Under the facts
of this case, we find that Purdue was awaiting trial on Cause No. 1030 during
the entire pretrial confinement from March 10 through the July 16, and that
allowing the accrued time of 128 days does not constitute “allow[ing] credit
time for time served on wholly unrelated offenses.” Dolan, 420 N.E.2d at 1373.
The trial court erred in denying Purdue the additional 128 days of accrued time.
Accordingly, we reverse and remand to the trial court with instructions to grant
Purdue the initial three days plus an additional 128 days of accrued time and, if
appropriate, the comparable number of days of good time credit, and deduct
that credit time from the aggregate of Purdue’s consecutive sentences.12
[17] Reversed and remanded.
[18] Mathias, J., and Brown, J., concur.
12
The State suggests that Purdue has not met his burden of proof in this case, by noting, “When a defendant
is incarcerated on multiple charges, it is the defendant’s burden to demonstrate that his time spent in
confinement was the result of the charge he is being sentenced on and not the result of other unrelated
charges.” Appellee’s Br. at 9. As support for this claim, the State cites to Bischoff v. State, 704 N.E.2d 129, 130
(Ind. Ct. App. 1998), trans. denied. In Bischoff, our court recognized that the defendant had the burden of
proving he deserved credit against his Huntington County sentence for time served in both Wabash County
and with the DOC under circumstances where it was mandatory that his sentences be served consecutively.
704 N.E.2d at 130. It is true that our court has placed the burden on the defendant when credit is requested
for time served in multiple states and even in multiple counties. See Cohen v. State, 560 N.E.2d 1246, 1249
(Ind. 1990) (Cohen failed to meet his burden of establishing that his Illinois confinement was related to
Indiana charges for which he was sentenced); see also Richeson v. State, 648 N.E.2d 384, 391 (Ind. Ct. App.
1995) (Richeson failed to meet his burden of proving he was owed credit against his Porter County sentence
for time he was confined in Lake County). However, we see no reason to place the burden on Purdue when:
(1) all parties agree about the number of days in question; and (2) Purdue was confined in one county, and
the record of confinement on all three charges was before the same trial judge.
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