Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 1 of 8 

### MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Darren Bedwell Marion County Public Defender Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Shayne Thompson, A

ppellan t ,

v. 

### State of Indiana, A

ppelle e August 11, 2015 Court of Appeals Case No. 49A05-1410-CR-480 Appeal from the Marion County Superior Court Criminal Division 1
Cause No. 49G01-1309-MR-063580 No. 49G01-1406-FA-029370 The Honorable Kurt Eisgruber, Judge



### Friedlander, Judge.Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 2 of 8 [1] Shayne Thompson appeals the calculation of credit time in conjunction with his sentencing for one count of murder, one count of robbery as a class A felony, and one count of robbery as a class B felony.

[2] We reverse and remand with instructions.

[3] On October 24, 2011, Thompson committe d acts that eventually led to his conviction of robbery as a class C felony. He was sentenced to two years, suspended, and placed on home detentio n. He was also placed on 365 days probation. His probation was revoked on January 11, 2013. He was later released to parole on July 12, 2013. While on parole, on September 19, 2013, Thompson and several accomplices forc ed their way into a residence in Indianapolis and robbed a family at g unpoint. Less than a week later, on September 25, 2013, Thompson and an accomplice robbed a BP store at gunpoint. During the robbery, Thomps on shot and killed a store clerk.

[4] Based upon Thompson’s subsequent arre st on the murder charge, the parole department issued a parole warrant on October 2, 2013. On November 20, 2013, “the warrant was lifted and void ed due to the amount of time the defendant had already served on this case and his pending maximum release date (per legislative order).” Appellant’s Appendix at 301. A supervisor at the parole department indicated that “the y were aware [Thompson] was in the Marion County Jail, and this case was monitored by parole until [Thompson] reached his maximum expiration date.” Id. The supervisor further indicatedCourt of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 3 of 8 that Thompson “was releas ed from parole for this case on 01/10/2014, due to [Thompson] reaching his maximum expiration date.” Id.

[5] Two separate criminal cases were filed aga inst him as a result of the events of September 19 and September 25. The St ate and Thompson eventually entered into a single plea agreement resolving both cases. As a result of the September 19 incident, which we shall refer to as the confinement case, Thompson pled guilty to burglary as a class A felony , robbery as a class B felony, and five counts of criminal confinement, all as class B felonies. As a result of the September 25 incident, which we shall re fer to as the murd er case, Thompson pled guilty to murd er and two counts of robbery, one as a class A felony and one as a class B felony. According to the terms of the agreement, the sentences for each case would run consecutively, and Thompson’s aggregate sentence would be between 65 and 110 years. Th ompson agreed to wa ive his right to appellate review of the appropriatene ss of the sentence, and the State agreed that Thompson would not be required to register as a sex offender.

[6] On September 26, 2014, following a hearing, the trial court sentenced Thompson to fifty-five year s for the murder convicti on and ten years for the class B-felony robbery conviction. The court ordered that those sentences were run consecutively to each other and co ncurrently with a four-sentence for robbery as a class A felony. With resp ect to the confinement case, Thomas was sentenced to thirty years for the bu rglary conviction, which was to run concurrently with a four-sen tence for the class B-felony robbery conviction. He received fifteen-sentences for each of th e four B-felony criminal confinementCourt of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 4 of 8 convictions, with those sentences to run concurrently with each other and consecutively to the sentence for the bu rglary conviction. Finally, the aggregate sentence for the confinement case was ordered to run consecutively to the aggregate sentence for the murder case, for a total aggregate sentence of 110
years.

[7] Finally, and germane to the issue pres ented on appeal, the parties agree that Thompson was incarcerated for 367 days between his arrest in the murder case and the time he was sentenced. The Stat e argued, and the tria l court ultimately agreed, that Thompson was not entitled to credit time for 101 of those days because he was serving a sentence for hi s parole violation between October 2, 2013 (when the parole department file d the warrant) and January 10, 2014 (when the parole warrant was lifted because Thompson had already “reached his maximum expiration date”). Id. at 301.

[8] Thompson challenges the award of credit time. 1 When considering challenges to the award of credit time, we review the trial court’s factual determinations

1 We reject the State’s assertion that Thompson cannot appeal this alleged error because he invited it. At the sentencing hearing, the State argued that Thompson should not get credit for “his DOC sentence”, i.e., the time “he was se rving [on] a parole violation sentence”. Transcript at 96. When asked for a response, Thomps on’s stated: “That is a correct statement based on the law as we understand it.” Id. It is debatable whether Thompson "invited" the error within the meaning of the invited error doctr ine. Even if it was argued as a traditional example of waiver for failing to object, the argument would not prevail. See Groves v. State, 823 N.E.2d 1229, 1231–32 (Ind. Ct. App. 2005) (“[g]enerally, a failure to object to error in a proceeding, and thus preserve an issue on appeal, results in waiver. However, a court may remedy an unpreserved error when it determines the trial court committed fundamental error. An improper sentence constitutes fundamental error and cannot be ignored on review”).Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 5 of 8 for an abuse of discretion. Harding v. State , 27 N.E.3d 330 (Ind. Ct. App. 2015). On the other hand, legal conclusions based, as here, upon the interpretation of a
statute are reviewed de novo. See Gardiner v. State , 928 N.E.2d 194, 196 (Ind. 2010) (“we review de novo matters of statutory interpretation because they present pure questions of law”). On a ppeal, the defendant bears the burden of showing that the trial court erre d in calculating credit time. Gardner v. State, 678 N.E.2d 398 (Ind. Ct. App. 1997).

[9] Thompson contends the trial court erred in denying him credit time for time spent on pretrial confinement. It a ppears the trial court determined that Thompson was not entitled to credit time for the period of his confinement spanning from October 2 through January 10. It further appears that the trial court accepted the State’s argument that Thompson was not qualified to receive credit time because during that time he was serving a sentence for violating his parole. See fn. 1 infra

.

[10] We begin by considering the statutor y scheme devised by our Legislature relating to credit time for parole violat ions. Pursuant to Ind. Code Ann. § 35- 50-6-1(a) (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation), “w hen a person imprisoned for a felony completes the person’s fixed term of imprisonment, less the credit time theCourt of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 6 of 8 person has earned with respect to that te rm, the person shall be ... (1) released on parole for not more than twenty-fou r (24) months, as determined by the parole board[.]” As reflected in this provision, parole is administered and determined by the parole bo ard, and not the court. See Mott v. State , 273 Ind. 216, 221, 402 N.E.2d 986, 989 (1980) (“[t]he Indiana parole board of the Department of Corrections has exclusive power to parole prisoners, under our statutes”). I.C. § 35-50-6-7 (West, We stlaw current with all 2015 First Regular Session of the 119th General A ssembly legislation) does provide that credit time may be denied for a person who is jail ed on new charges st emming from acts committed while on parole. Pursuant to this provision, a parolee who “has been charged with a new crime may be immediately assigned to Class III and may have all earned credit time su spended pending disposition of the allegation” by the DOC or the county detent ion facility. I.C. § 35-50-6-7(a). The statute further provides that in the event the parolee is found not guilty of the alleged misconduct followi ng a hearing, the credit time must be restored. We reiterate, however, that this is a decision committed to the parole board and the Department of Correction. See I.C. § 35-50-6-7; see also Propes v. State , 587 N.E.2d 1291, 1293 (Ind. 1992) (“the manner in which a sentence is served once the prisoner has been commi tted to the Department of Correction is a matter of discretion of that department together with the parole board and the clemency commission and their interact ions with the Governor”), cert. denied , 505 U.S. 1226. It appears from the record before us that these steps were not undertaken and Thompson’s parole was never revoked.Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 7 of 8 [11] Based upon Thompson’s arrest for the murder charge, the parole department issued a parole warrant on October 2, 2013. Approximately a month and a half later, that warrant “was lifted and voided due to the amount of time [he] had already served ... and his pend ing maximum release date.” Appellant’s Appendix at 301. Although the parole department was aware that he was in the Marion County Jail and continued to monitor the case, Thompson’s parole was never revoked. In fact, Thompson was releas ed from parole on January 10, 2014, because he had “[reached] his maximum expiration date.” Id. Importantly, neither the parole department nor the DOC held a hearing to determine, for purposes of revoking parole, whether Th ompson was guilty of the charges for which he was arrested on October 2, 2013. Further, neither the parole board nor the DOC undertook the steps necessar y to assign him to Class III and/or suspend his credit time. Therefore, it cannot be said that Thompson’s incarceration during that time was attr ibutable to his parole having been revoked, or indeed any offi cial change in his parole st atus at all. This means that during this period Thompson remain ed in Class I credit time. Thus, any loss of credit time during that period could only have been premised upon the fact of the allegation that he violated parole. Under these circumstances, we can find no authority for denying credit time on this basis.

[12] Accordingly, we conclude that the tria l court erred in depriving Thompson of 101 days credit time in the murder ca se for the time he was incarcerated between October 2, 2013 and January 10, 2014. We remand with instructionsCourt of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 8 of 8 to correct the sentencing order to reflect that Thompson is enti tled to receive an additional 101 days credit ti me against the present sentence.

[13] Judgment reversed and rema nded with instructions.

Baker, J., and Najam, J., concur.