David C. Franks v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2017, 7:10 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David C. Franks, April 5, 2017 Appellant-Defendant, Court of Appeals Case No. 34A02-1607-CR-1671 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause Nos. 34D04-1203-FB-54 34D04-1112-FB-235 34D04-1203-FB-39

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Case Summary [1] David C. Franks (“Franks”) appeals an order revoking his suspended sentences

in three cause numbers. He presents the sole issue of whether he was

erroneously denied credit time for his incarceration prior to the revocation. We

remand for correction of the revocation order.

Facts and Procedural History [2] On July 6, 2012, Franks pled guilty to Burglary, as a Class C felony, under

Cause No. 34D04-1112-FB-235 (“FB-235”), Receiving Stolen Property, as a

Class D felony, under Cause No. 34D04-1202-FD-15 (“FD-15”), Receiving

Stolen Property, as a Class D felony, under Cause No. 34D04-1203-FB-39

(“FB-39”), and Receiving Stolen Property, as a Class D felony, under Cause

No. 4D04-1203-FB-54 (“FB-54”). [3] Pursuant to the terms of the plea agreement, the trial court sentenced Franks to

consecutive sentences of: six years imprisonment with four years executed and

730 days suspended to probation under cause number FB-235; two years with

one year to be served on home detention and one year suspended to probation

under FD-15; two years, all suspended to probation under FB-39; and three

years, all suspended to probation under FB-54. [4] Awaiting trial, Franks had been incarcerated from October 3, 2011 to

November 2, 2011, from January 10, 2012 to February 2, 2012, from March 27,

2012 to April 7, 2012, and from May 11, 2012 to July 6, 2012. He was awarded

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credit time of 31 days under FD-15, 24 days under FB-235, 12 days under FB-

39, and 57 days under FB-54. [5] On May 16, 2016, the State filed a Petition to Revoke Suspended Sentence,

related to FB-235, FD-39, and FB-54. At a fact-finding hearing on July 8, 2016,

Franks admitted that he had violated conditions of his probation. The trial

court revoked Franks’ suspended sentences and probation and ordered Franks

to serve “the balance” of each suspended sentence. (App. at 89.) The trial

court found the remaining balances to be: 730 days under FB-235, 730 days

under FB-39, and 1,095 days under FB-54. The trial court reasoned that,

because Franks was arrested on May 7, 2016, any credit time he had earned

would be applicable to the new charges, Cause No. 34D01-1605-F6-399.

Franks appealed.

Discussion and Decision [6] Franks challenges the trial court’s failure to award credit time for his pre-trial

confinement in FB-39 and FB-54. [7] We review a trial court’s factual determination for an abuse of discretion, and

we review legal conclusions de novo. Harding v. State, 27 N.E.3d 330, 331 (Ind.

Ct. App. 2015). Credit time is a statutory right, and trial courts do not have

discretion in awarding or denying that credit. Id. at 331-32. The appellant

bears the burden of showing that the trial court erred. Id. at 332.

Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1671 | April 5, 2017 Page 3 of 4 [8] Franks and the State agree that Franks is entitled to the credit time awarded in

the original sentencing order as to FB-39 (12 days) and FB-54 (57 days). This is

because the sentences in those cause numbers were completely suspended to

probation and thus, the Department of Correction could not have applied the

credit time previously.1 [9] We remand to the trial court with instructions to amend the revocation order to

reflect that Franks is entitled to 12 days credit time in FB-39 and 57 days credit

time in FB-54. [10] Remanded.

Vaidik, C.J., and Robb, J., concur.

1 As for FB-235, because Franks had been incarcerated in the Department of Correction, he would have received his pre-trial credit time of 24 days. He does not challenge the disposition of credit time in FB-235.

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