Crow v. State, 87A01-0301-CR-5.

• Decision Date: 16 October 2003
• Docket Number: No. 87A01-0301-CR-5.,87A01-0301-CR-5.
• Citation: 797 N.E.2d 319
• Parties: Samuel I. CROW, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

797 N.E.2d 319

Samuel I. CROW, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 87A01-0301-CR-5.

Court of Appeals of Indiana.

October 16, 2003.

Samuel I. Crow, Bunker Hill, IN, Appellant pro se.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In May 2001, the State charged Samuel I. Crow with six counts of burglary, six counts of theft, and one count of possession of stolen property. In November 2001, Crow pleaded guilty to the six theft counts, and the State agreed to dismiss the remaining counts. The trial court sentenced Crow to 2½ years on each count and ordered that he serve those terms consecutively for a total term of fifteen years, with three years suspended to probation. The court further determined that Crow was entitled to 179 days of credit for time served in jail while awaiting sentence. In addition, on the Abstract of Judgment, under a section entitled "Judge's Recommendations," the court marked "No" next to the line which reads, "Class One Credit."

On October 18, 2002, Crow filed his Motion to Correct Erroneous Sentence and argued that the court failed to give him credit for good behavior (hereinafter "good time credit"), in addition to credit for time served.¹ After referring Crow's motion to the Prosecutor's office for a response, the court denied the motion and suggested that Crow "consult with the [Indiana Department of Correction ("DOC") ] concerning [its] assignment of credit time." Crow now appeals and presents a single issue for review: whether the trial court erred when it denied his motion seeking good time credit for the 179 days he spent in jail prior to his sentencing.

We reverse and remand with instructions.

DISCUSSION AND DECISION

Although the preferred procedure for presenting a sentencing error is a petition for post-conviction relief, a motion to correct erroneous sentence may be used to correct those errors where the sentence is erroneous on its face. Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999), trans. denied. A trial court may correct an erroneous sentence when a sentence is facially defective. Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000); Ind.Code § 35-38-1-15. A sentence is facially defective if it violates express statutory authority at the time it is imposed. Mitchell, 726 N.E.2d at 1243. A trial court's ruling on a motion to correct erroneous sentence is subject to appeal by normal appellate procedures. Id. On appeal, we defer to the trial court's factual findings, but we review the trial court's legal conclusions de novo. Id.

Crow contends that when the trial court imposed sentence, the court was required by statute to give him 179 days' good time credit, which combined with the 179 days the court credited him for time served in jail while awaiting sentence, amounts to 358 days of total credit. In support, he relies primarily on our opinion in Senn v. State, 766 N.E.2d 1190 (Ind.Ct.App.2002). In that case, we addressed, in part, Senn's claim that he was owed a total of 546 days of credit for 273 days he served in jail while awaiting sentencing on his probation revocation. Id. at 1194. We explained in Senn as follows:

[Indiana Code Section] XX-XX-X-X(a) provides: "A person imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class I." Furthermore, [Indiana Code Section] XX-XX-X-X(a) provides: "A person assigned to Class I earns one (1) day of credit time for each day he is imprisoned for a crime or confined awaiting trial or sentencing." Because pre[-]sentence jail time credit is a matter of statutory right, a trial court generally does not have discretion in awarding or denying such credit.

Id. (citation omitted).

In our analysis of Senn's claim, we noted that in Purcell v. State, 721 N.E.2d 220, 223 (Ind.1999), our supreme court determined that "credit time" for purposes of Indiana Code Section 35-50-6 means "good time credit" not "credit for time served." Id. at 1195, n. 2. In addition, though the trial court in Senn explained on the record that it normally determined credit for time served and the DOC would thereafter calculate good time credit, we determined that credit time "is not a discretionary matter." Id. at 1195. Thus, we held that if a mistake in Senn's good time credit or credit for time served was apparent, it was our duty to correct that mistake. Id. While there was a discrepancy in the total number of credit days requiring remand, we stated: "If it is determined that Senn actually served 273 days in jail, he is owed one (1) day of credit time for each day he was imprisoned, i.e., a total of 546 days of credit." Id. (citing I.C. § 35-50-6-3(a)).

Crow also directs us to Indiana Code Section 35-38-3-2, which governs the contents of a trial court's judgment following conviction, and provides in relevant part:

(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:

* * *

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

(Emphases added). Crow asserts that under subsection (b)(4), the trial court must include in the judgment of conviction not only credit for time served, but also good time credit earned while awaiting sentence under Indiana Code Section 35-50-6-3(a). We must agree.

First, subsection (b)(4) of the judgment of conviction statute contains the term "must." When the word "must" appears in a statute, we construe it as mandatory rather than directory unless it is apparent from the context or purpose that the legislature intended a different meaning. Romine v. Gagle, 782 N.E.2d 369, 379-80 (Ind.Ct.App.2003). In addition, our supreme court has already clarified that Indiana Code Section 35-50-6 "sets forth the procedures for earning good time credit; it does not address credit for time served." Purcell, 721 N.E.2d at 223. Accordingly, Indiana Code Section 35-50-6-3(a) refers to good time credit, not credit for time served, when it provides that a person assigned to Class I earns one day of credit time for each day he is imprisoned for a crime or confined awaiting trial or sentencing.

It is well settled that statutes which relate to the same general subject matter are in pari materia and should be construed together to produce a harmonious result. Wilburn v. State, 671 N.E.2d 143, 147 (Ind.Ct.App.1996),trans. denied. When Indiana Code Section 35-50-6-3(a) is read in conjunction with the judgment of conviction statute, specifically subsection (b)(4), it follows that a trial court's judgment must include: (1) the amount of credit for time spent in confinement before sentencing; and (2) credit time earned. While the judgment of conviction statute does not specifically reference Indiana Code Section 35-50-6-3, it refers to credit "earned." Significantly, and consistent with Purcell, Indiana Code Section 35-50-6 governs credit time earned as a result of good behavior. Therefore, we agree with Crow's contention that Indiana Code Section 35-38-3-2(b)(4) requires the trial court to include in its judgment of conviction both credit for time served and good time credit earned under Indiana Code Section 35-50-6-3(a).²

In this case, the trial court did not give Crow good time credit for the 179 days he served in jail while awaiting sentencing. Rather, the court only gave him credit for time served. Thus, under Senn, and according to the language of the judgment of conviction statute, Crow raises a valid argument that the trial court imposed an erroneous sentence in violation of Indiana Code Section 35-50-6-3(a).

Still, after Senn, another panel of this court addressed a claim similar to Crow's, namely, that the trial court imposed an erroneous sentence because it gave the defendant credit for time served but only recommended that "said credit of days be considered in assessing credit for good time conduct, as provided by law." Robinson v. State, 789 N.E.2d 965, 966 (Ind.Ct. App.2003). The defendant, Robinson, filed a motion to correct erroneous sentence, which the trial court denied. On appeal, this court originally held that the trial court erred when it denied Robinson's motion to correct erroneous sentence because it should have determined good time credit earned up to the time of sentence. Id. at 967. However, the State petitioned for rehearing and argued that the DOC and the local jail authorities, not the trial court, are authorized to determine good time credit. We agreed with the State, granted its petition for rehearing, and withdrew our previous opinion. Id. at 968.

Robinson was the first case to hold that a trial court lacks authority either to grant or deny good time credit at the time of sentencing. Prior to Robinson, we held in Kindred v. State, 771 N.E.2d 760, 763-64 (Ind.Ct.App.2002), that a trial court lacked authority to grant a defendant Class I credit time retroactively for the sixteen years that the defendant had been incarcerated in the DOC serving an enhanced sentence that was determined to be invalid. And in Campbell v. State, 714 N.E.2d 678, 683 (Ind.Ct.App.1999), we held that a trial court lacked authority to rule on a defendant's request for good time credit for days he spent in a work release center pursuant to the trial court's original sentencing order. Unlike both Crow and the defendant in Robinson, the defendants in Kindred and Campbell were not requesting that the trial court grant them Class I good time credit for days served while awaiting conviction or sentencing. We find this distinction significant for two reasons.

First, as a policy matter, once a defendant has been committed to the DOC, the DOC is in the best position to handle the assignment and modification of credit...