Bonds v. State

• Decision Date: 31 March 2021
• Docket Number: Court of Appeals Case No. 20A-CR-1449
• Citation: 165 N.E.3d 1011
• Parties: Mark A. BONDS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

165 N.E.3d 1011

Mark A. BONDS, Appellant,

v.STATE of Indiana, Appellee.

Court of Appeals Case No. 20A-CR-1449

Court of Appeals of Indiana.

FILED March 31, 2021

Appellant Pro Se: Mark A. Bonds, New Castle, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Courtney Staton, Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Mark A. Bonds appeals the trial court's denial of his motion to correct erroneous sentence. We reverse and remand.

Facts and Procedural History

[2] In 2012, a jury found Bonds guilty of two counts of child molesting as class A felonies.¹ On November 13, 2012, the court sentenced Bonds to concurrent sentences of thirty years with twenty-five years executed, five years suspended, and three years of probation. In its Order of Judgment of Conviction, the court stated: "The Defendant is entitled to ___ days credit for time spent in confinement before sentencing." Appellant's Appendix Volume II at 7. The court ordered the Department of Correction ("DOC") to award credit time in accord with Indiana law and found Bonds to be a sexually violent predator. The abstract of judgment specified that the dates of confinement prior to sentencing were from September 28, 2010, to November 12, 2012, for a total of 777 days.

[3] On July 7, 2020, Bonds filed a Motion to Correct Erroneous Sentence and asserted the court "determined that [he] was entitled to (777) days credit for time being confined in jail from 9-28-10 to 11-12-12 while awaiting sentence" but "failed to include in its Judg[ ]ment of Conviction (777) days of Class (I) earned credit which was earned while [he] was in Jail awaiting sentence...." July 7, 2020 Motion to Correct Erroneous Sentence at 2. He also filed a memorandum in support of his motion and argued the court determined that he was entitled to 777 days of credit for time served in jail but failed to give him credit for good behavior. On July 8, 2020, the court denied Bonds’ motion and stated that sentencing judgments that report only days spent in pre-sentence confinement and do not expressly designate earned credit time shall be understood by the courts and the DOC automatically to award credit days equal to pre-sentence confinement days.

Discussion

[4] Generally, we review a trial court's decision on a motion to correct erroneous sentence only for an abuse of discretion. Fry v. State , 939 N.E.2d 687, 689 (Ind. Ct. App. 2010). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id.

[5] An inmate who believes he has been erroneously sentenced may file a motion to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State , 888 N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 provides:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

"[S]uch a motion may only be filed to address a sentence that is ‘erroneous on its face.’ " Neff , 888 N.E.2d at 1251 (quoting Robinson v. State , 805 N.E.2d 783, 786 (Ind. 2004) (citation omitted)). "Other sentencing errors must be addressed via direct appeal or post-conviction relief." Id. "An allegation by an inmate that the trial court has not included credit time earned in its sentencing is the type of claim appropriately advanced by a motion to correct sentence." Id. In Robinson , the Court "adopted a presumption that ‘[s]entencing judgments that report only days spent in pre-sentence confinement and fail to expressly designate credit time earned shall be understood by courts and by the [DOC] automatically to award the number of credit time days equal to the number of pre-sentence confinement days.’ " Id. (quoting Robinson , 805 N.E.2d at 792 ). The Court "also emphasized in Robinson that a motion to correct an erroneous sentence may only arise out of information contained on the formal judgment of conviction, and not from an abstract of judgment." Id. (citing Robinson , 805 N.E.2d at 793-794 ).

[6] In Robinson , the Court cited Ind. Code § 35-38-3-2 and observed that "[t]he statute requiring the trial court's inclusion of credit time does not refer to the abstract of judgment." Robinson , 805 N.E.2d at 793. The Robinson Court observed that Ind. Code § 35-38-3-2 provided:

(a) When a convicted person is sentenced to imprisonment, the court shall, without delay, certify, under the seal of the court, copies of the judgment of conviction and sentence to the receiving authority.

(b) The judgment must include:

(1) the crime for which the convicted person is adjudged guilty and the classification of the criminal offense;

(2) the period, if any, for which the person is rendered incapable of holding any office of trust or profit;

(3) the amount of the fines or costs assessed, if any, whether or not the convicted person is indigent, and the method by which the fines or costs are to be satisfied;

(4) the amount of credit, including credit time earned, for time spent in confinement before sentencing; and

(5) the amount to be credited toward payment of the fines or costs for time spent in confinement before sentencing.

(c) The judgment may specify the degree of security recommended by the court.

(d) A term of imprisonment begins on the date sentence is imposed, unless execution of the sentence is stayed according to law.

Id. (quoting Ind. Code § 35-38-3-2 ) (emphases added in Robinson ).² The Court held:

The contents of the abstract of judgment form do not control the information that the sentencing judge must include in the judgment of conviction. We construe the italicized word "judgment" in subsection (b) above to refer to the phrase "judgment of conviction" in subsection (a) and thus to require the inclusion of designated information only in the judgment of conviction, a copy of which must be provided by the trial court to the Department as receiving authority. The Department's abstract of judgment form is not the "judgment of conviction."

Id. at 794. The Court observed that "[t]he remedy of a motion to correct sentence arising from Indiana Code § 35-38-1-15 speaks only in terms of ‘sentence,’ not ‘judgment of conviction,’ " and "nevertheless [held] that the ‘sentence’ that is subject to correction under this procedure means the trial court's judgment of conviction imposing the sentence and not the trial court's entries on the [DOC's] abstract of judgment form." Id. The Court also held that "[i]t is the court's judgment of conviction and not the abstract of judgment that is the official trial court record and which thereafter is the controlling document." Id.

[7] The court's Order of Judgment of Conviction did not specify the days of credit for time spent in confinement. Specifically, the Order of Judgment of Conviction stated: "The Defendant is entitled to ___ days credit for time spent in confinement before sentencing." Appellant's Appendix Volume II at 7. While the abstract of judgment stated that Bonds had been confined for 777 days prior to sentencing, the Indiana Supreme Court has held that the "sentence" that is subject to correction under Ind. Code § 35-38-1-15 "means the...