Miсhael B. PURDUE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 03A01-1508-CR-1154.
Court of Appeals of Indiana.
Feb. 24, 2016.
433 N.E.3d 433
KIRSCH, Judge.
Conclusion
[31] In sum, we find and hold as follows:
- the Waste Disposal Statute creates a right of action that does not limit who is entitled to enforce it;
- the Plaintiffs have standing to bring such an action under the public standing doctrine;
- section 4 of the Waste Disposal Statute applies to the Second Amendment;
- the provisions of section 4 relating to public participation and transparency were not followed;
- the contract exceeds the maximum length allowed by statute; and
- as a result of failure to comply with section 4, the Second Amendment is void.
[32] The judgment of the trial court is reversed and remanded with instructions to enter summary judgment in favor of the Plaintiffs.
BRADFORD, J., and PYLE, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
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 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,
[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 mеthamphetamine in Cause No. 1246. It is not clear when, but, before Purdue signed it, a handwritten change was made6 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. Id. at 8. Purdue pleaded guilty to the two charges 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 сredit 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], 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].
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 1/2) years for Count 1, Theft, a Level 6 Felony. The defеndant 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.
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
[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.
[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 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 keеping 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,
[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 аnd Class A misdemeanor resisting law enforcement. Purdue‘s Level 6 felony warranted pretrial confinement. See
[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.”
[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 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 tо 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 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 Marсh 10 through 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
[17] Reversed and remanded.
[18] MATHIAS, J., and BROWN, J., concur.
KIRSCH
JUDGE