Jamal Rasheed Southern v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
Apr 23 2012, 9:37 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER
Office of the Public Defender, Appellate Div. Attorney General of Indiana
Crown Point, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMAAL RASHEED SOUTHERN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1107-CR-298
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Raymond D. Kickbush, Sr. Judge
Cause Nos. 45G03-1001-FB-8, 45G03-1002-FB-12, 45G03-1003-FB-14,
45G03-1003-FB-15, 45G03-1004-FB-43, 45G03-1006-FB-64
April 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Jamaal Southern appeals the denial of his request for credit time. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2010, the State charged Southern with ten counts of Class B felony burglary1 and
one count each of Class C felony burglary,2 Class D felony residential entry,3 and Class D
felony theft.4 Southern was incarcerated in Michigan when the charges were filed. On May
17, he was transported from Michigan to Indiana under an Interstate Agreement on Detainers
(IAD) to stand trial for those thirteen charges.
On May 5, 2011, Southern agreed to plead guilty to six counts of Class B felony
burglary and one count of Class C felony burglary. In exchange, the State dismissed the
other charges against him. The agreements provided Southern would be sentenced to twenty
years for each count of Class B felony burglary and to eight years for Class C felony
burglary, and to be served concurrently for an aggregate sentence of twenty years.
The trial court sentenced Southern according to the terms of his plea agreement and
ordered him to serve his Indiana sentence consecutive to his Michigan sentence. During the
sentencing hearing, Southern requested credit on his Indiana sentence for the 389 days he
served in Indiana awaiting sentencing. The court denied his request because “he is going to
be given credit toward his Michigan Department of Correction sentence there and is not
entitled to the double credit[.]” (Sentencing Tr. at 25.)
1
Ind. Code § 35-43-2-1(1).
2
Ind. Code § 35-43-2-1.
3
Ind. Code § 35-43-2-1.5.
4
Ind. Code § 35-43-4-2(a).
2
DISCUSSION AND DECISION
Indiana Code § 35-50-6-3(a) provides, “A person assigned to Class I earns one (1) day
of credit time for each day the person is imprisoned for a crime or confined awaiting trial or
sentencing.” The determination of a defendant’s credit time depends on the length of his
pretrial confinement and whether that confinement is a result of the criminal charge for
which sentence is being imposed. Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005),
trans. denied. If a defendant is serving concurrent terms for separate crimes, he is entitled to
credit time against each term. Id. However, if the defendant is sentenced to consecutive
terms for his crimes, he is allowed credit time only against the aggregate of the terms. Id. A
defendant may not claim “double or extra credit”5 for pre-sentencing confinement. Id.
The trial court ordered Southern’s Indiana sentence to run consecutive to his Michigan
sentence. He received a 389 day credit against his Michigan sentence for the time he spent
awaiting trial and sentencing for the Indiana charges. As Southern received credit against his
Michigan sentence, any additional credit would result in impermissible double credit. See
Payne, 838 N.E.2d at 510 (Payne not entitled to credit against sentences to be served
consecutively). Accordingly, we affirm.
Affirmed.
CRONE, J., and BROWN, J., concur.
5
In Payne, we indicated “double” or “extra” credit occurs when a defendant is given credit twice for the same
period of pre-sentencing confinement. Payne, 838 N.E.2d at 510.
3