John M. Ross v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 09 2020, 10:54 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John M. Ross, April 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1725
v. Appeal from the Ohio Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
58C01-1802-F2-2
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 1 of 4
Statement of the Case
[1] John M. Ross appeals the trial court’s calculation of his credit time after Ross
pleaded guilty to conspiracy to dealing in methamphetamine, as a Level 4
felony; possession of methamphetamine, as a Level 5 felony; and to being a
habitual offender. We affirm.
Facts and Procedural History
[2] On May 16, 2019, Ross entered into a plea agreement with the State in which
Ross agreed to plead guilty to conspiracy to dealing in methamphetamine, as a
Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to
being a habitual offender. Pursuant to the plea agreement, Ross was entitled to
“receive credit for time served as well as good time for the same.” Appellant’s
App. Vol. 3 at 138. He also “waive[d] the right to appeal any sentence
imposed . . . so long as the Court sentences [him] within the terms of this plea
agreement.” Id.
[3] At his ensuing sentencing hearing, the court noted that the Presentence
Investigation Report (“PSI”) stated: “The Defendant has been serving a
Probation Violation sentence” in another cause number, although the violation,
which Ross admitted, was based on the instant offenses, and Ross was “entitled
to [zero] days” of credit “on his current cause.” Id. at 96. Ross responded that,
because his agreement stated that he “shall receive credit for time served, as
well as good time for the same,” even though “these matters must run
consecutively, by operation of law, . . . it would be appropriate for [Ross] to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 2 of 4
receive credit for the time he was in jail on both this case and the probation
violation . . . .” Tr. Vol. 2 at 19-20. The court asked Ross’s counsel, “So, is
your client asking for double credit?” Id. at 20. Ross’s counsel responded,
“Yes.” Id. Thereafter, the trial court sentenced Ross with zero days credit
time. This appeal ensued.
Discussion and Decision
[4] Ross appeals the trial court’s award of zero days of credit time. “Because credit
time is a matter of statutory right, trial courts do not have discretion in
awarding or denying such credit.” Harding v. State, 27 N.E.3d 330, 331-32 (Ind.
Ct. App. 2015). However, it is the appellant’s burden to show that the trial
court’s calculation of credit time is erroneous. Id.
[5] Ross’s entire argument on appeal is that his plea agreement unambiguously
entitled him to an award of credit time in the instant cause equivalent to the
award of credit time he received while serving his probation violation in a
separate cause. 1 We cannot agree. Ross’s plea agreement stated that he “shall
receive credit for time served as well as good time for the same.” Appellant’s
App. Vol. 3 at 138. That language unambiguously entitled him only to any
credit time he had properly accrued “for time served” on the instant cause,
which likewise required the court to consider extrinsic evidence, namely, the
1
The State asserts that Ross waived his right to appeal his sentence in his plea agreement. But Ross’s waiver
was limited to only if the court sentenced him in accordance with the terms of the plea, and his argument on
appeal is that that did not happen. As such, Ross’s argument is properly before us.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 3 of 4
PSI, to determine that time. Nothing in the plea agreement’s language entitled
Ross to a particular amount of credit time or to credit time to which he would
not otherwise have been entitled.
[6] Ross makes no argument on appeal that he was entitled by statute to receive
credit time in the instant cause in addition to the credit time attributed to his
probation violation. His only argument is that his plea agreement was intended
to require the court to double count his credit time. Again, we reject that
argument and, as such, we affirm the trial court’s calculation of Ross’s credit
time pursuant to his plea agreement.
[7] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 4 of 4