Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited befo re any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : JAMES A. SHOAF GREGORY F. ZOELLER Columbus , Indiana Attorney General of Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

DAROD A . WHEELER , ) ) Appellant

- Defendant, ) ) vs. ) No. 03A01

- 1310

- CR

- 462 ) STATE OF INDIANA , ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT The Honorable Stephen R. Heimann , Judge Cause No. 03C01

- 1007

- FB

- 1494

March 1 0 , 2014
MEM ORANDUM DECISION

– NOT FOR PUBLICATION BAKER, Judge2

Here, appellant

- defendant Darod A. Wheeler’s probation was revoked, and he was
ordered to serve a portion of his suspended sentence in the Indiana Department of Correction (DOC) . Wheeler’s credit time was applied to the remaining portion of his suspended sentence. Wheeler appealed. After a panel of this Court determined that Wheeler’s credit time must be applied to the executed portion of his sentence and remand ed the case back to the trial court to correct the abstract of judgment , the trial court increased the executed portion of Wheeler’s sentence, stating that if it did not , Wheeler would not receive the treatment that he needs from the DOC. Now, less than seven months later, Wheeler is before th is Court again. While the intent of the trial court may have been to ensure that Wheeler receive d the treatment that he needs, it erred by increasing the executed portion of his sentence on remand. Accordingly, we vacate the order of the trial court an d instruct the trial court to reinstate the original sentencing order and modify it by applying the credit time that Wheeler has earned to the executed portion of his sentence . We further instruct the trial court to expedite this matter, insofar as Wheele r should likely be released.
FACTS On July 12, 2010, Wheeler was charged with two counts of class B felony dealing in cocaine. On January 21, 2011, the State amended the charging information, reducing bo th counts to class C fe lonies, and Wheeler plea ded guilty to the amended counts. On February 1 8, 2011, the trial court entered a judgment of conviction on both counts and3

sentenced Wheeler to concurrent terms of five y ears on each count with all ti me suspended. Wheeler was ordered to serve a four

- yea r term on probation and to a one

year placement with community corrections, which could include work release or home detention. Wheeler was given “71 actual days credit . . . toward the sentence of imprisonment for time spent in confinement as a result of these charges.” Wheeler v.
State , No. 03A01

- 1212

- CR

- 545, memo op. at 2 ( Ind. Ct. App. August 14, 2013)

. On April 25, 2012, the State filed a petition to revoke probation, alleging that Wheeler had violated the term s of his probation by failing to: com plete substance abuse treatment, maintain full

- time employment, pay fees, complete twenty

- four hour s of community service during the weeks that he was not fully employed, and submit to three requested drug screens. Additionally, Wheeler had consumed alcoh olic beverages and was arrested for public intoxication. Following a hearing on July 23, 2012, the trial court determined that Wheeler had violated the terms of his probation. On November 13, 2012, the trial court held a hearing and ordered Wheeler to serve three years of his previously suspended sentence i n the
DOC and gave Wheeler credit for five days. The trial court’s order further provided that the balance of Wheeler’s credit time was to be applied towards “the balance of his sentence not imposed. ” Appellant’ s App. p. 93. Wheeler filed a notice of appeal on December 10, 2012. On appeal, Wheeler argued that the trial court er red in failing to award credit time , namely, the seventy

- one days from his original sentence, the five days served, and th e good time credit for the4

days he was placed on home detention, when it ordered him to serve a portion of his previously suspended sentence

. The State declined to file a brief, but instead filed a motion to dismiss and remand, stating that it “agrees tha t [Wheeler] is entitled to credit time which he has earned, including the seventy

- one days from his original sentence, the five days served, and the time which he served on home detention.” Wheeler , memo op. at 4. A panel of this Court determined that the trial court “should have determined the total number of years or days of the previously suspended sentence which it intended to impose as an executed sentence and then awarded Wheeler the credit time to wh ich he is entitled. ” Id. at 6. The Court then specified that Wheeler ’s credit for time served consists of the seventy

- one days of confinement before the February 28, 2011 sentencing order, the five days of confinement before the reinstatement of a portion of his previously suspended sentence, and goo d time credit for the period that Wheeler was plac ed on home detention. Id. at 6

- 7. The Court remanded the case to the trial court with instructions to calculate Wheeler’s total credit t ime and to amend the abstract of judgment. Id. at 7. On August 2 0, 2013, the trial court ordered Bartholomew County Community Corrections to provide written documentation showing Wheeler’s credit days. On September 9, 2013, Wheeler filed a request to advance the hearing and a request for release, both of which were de nied on September 11, 2013.5

On October 10, 2013, the trial court held a hearing on this Court’s instructions on
remand. It amended the November 13, 2012 order and sentenced Wheeler to four years and four months in the DOC with seventy

- one days credit h e had received before his initial sentence, five days credit for time served before the reinstatement of his previous sentence, and 180 days good time credit for home detention. The trial court explained: I specifically ordered on November 13 th of 2012, the Court recommends to the Indiana Department of Corrections [sic] the defendant be placed in a substance abuse program. Had I put you in there for three years and give n you this . . . 71 days and the five days and the 180 days, you wouldn’t have had su fficient time in the Indiana Department of Correction s to be placed into a substance abuse program. Okay. Tr. p. 21. Wheeler now appeals.

DISCUSSION AND DECISION Wheeler argues that instead of following the specific instructions on remand from th is Court, “the trial court viewed the Decision as an opportunity to re

- sentence the Wheeler [sic].” Appellant’s Br. p. 12. More particularly, Wheeler maintains that the “instruction from the Court of Appeals was to calculate credit days and amend Abstrac t of Judgment

– no t re - sentence.” Id. This Court has stated that “[u]pon resentencing a defendant, a court cannot impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes . . . .” Gootee v. State , 942 N.E.2d 111, 113 (Ind. Ct. App. 2011). In this case,6

the trial court was not instructed to resentence, but rather, to correct it s previous sentencing order. Acc ordingly, it was without authority to resentence Wheeler, and it was certainly without authority to impose a harsher penalty by increasing Wheeler’s executed time in the DOC from three years to four years and four months. Nevertheless, the State maintai ns that the trial court did not impose a harsher penalty. Instead, according to the State, the trial court did exactly as instructed by this
Court by calculating the total number of executed years that i t intended to impose , indicated that the number was four years and four months, and then awarded Wheeler his credit time. Here, the November 13, 2012 order states that Wheeler is “to serve three (3) years of the balance of sentence in the Indiana Department of Corrections.” Appellant’s App. p. 93. Furt hermore, the abstract of judgment reflects credit time of seventy

- one days, five days, and 180 days, as discussed throughout this opinion. Id. at 57. Finally, while the trial court may have intended that Wheeler spend more time in the DOC for treatment
p urposes, this Court’s August 14, 2013 Memorandum Decision is the law of this case,
and it instructed the trial court to calculate the credit time to which Wheeler was entitled and amend the abstract of judgment. Memo op. at 7 ; see also Ind. Appellate Rule 65(D) (providing that a “memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata , collateral estoppel, or law of the case”) . That is all that decision instruct ed the trial court to do.7

The judgment of the trial court is vacated and remanded with instructions to the trial court to reinstate the November 13, 2012 sentencing order and modify it w ith the appropriate credit time . We further instruct the trial cour t to expedite this cause as Wheeler should likely be released. NAJAM, J., and CRONE, J., concur.