Elijah D. Cook v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 19 2017, 10:15 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elijah D. Cook, December 19, 2017 Appellant-Defendant, Court of Appeals Case No. 34A02-1707-CR-1618 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff Menges, Judge Trial Court Cause No. 34D01-1604-F6-364

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017 Page 1 of 5 [1] Elijah Cook appeals the sentencing order following his fourth probation

violation. He argues that the trial court erroneously calculated the balance of

his previously suspended sentence. The State concedes that an error was made.

Finding that the trial court erred in its calculation, we reverse and remand with

instructions.

Facts [2] On June 29, 2016, Cook pleaded guilty to Level 6 felony possession of

methamphetamine. On that same date, the trial court sentenced Cook to 913

days, with 124 days executed and 789 days suspended to supervised probation.

Appellant’s App. Vol. II p. 31. [3] On August 24, 2016, the State filed a petition to revoke Cook’s probation

because he failed to appear for a required alcohol and drug assessment. Cook

was arrested on September 3, 2016, and on October 13, 2016, he admitted to

the violation; the trial court revoked 100 days of the previously suspended

sentence and gave him credit for 50 actual days or 100 credit days.

Accordingly, Cook was returned to probation. [4] On October 31, 2016, the State filed a second petition to revoke Cook’s

probation because he failed to report to his probation officer. Cook was

arrested on November 8, 2016, and on December 27, 2016, he admitted to the

violation; the trial court returned Cook to probation. [5] On January 23, 2017, the State filed a third petition to revoke Cook’s probation

because he again failed to report to his probation officer. Cook was arrested on Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017 Page 2 of 5

March 8, 2017, and on April 4, 2017, he admitted to the violation and was

sentenced to five days of his previously suspended sentence. The trial court also

found that Cook “has no jail time credit served while awaiting disposition in

this matter.” Id. at 47.1 [6] On May 4, 2017, the State filed a fourth petition to revoke Cook’s probation

because he again failed to report to his probation officer. Cook was arrested on

May 13, 2017, and on June 15, 2017, he admitted to the violation. On June 15,

2017, the trial court revoked the balance of the previously suspended sentence,

which the trial court calculated to be 689 days. Cook now appeals.

Discussion and Decision [7] Cook’s sole contention on appeal is that the trial court erroneously calculated

the balance of his suspended sentence in the June 15, 2017, order. We will

reverse a trial court’s factual determination only if the decision is clearly against

the logic and effect of the facts and circumstances before the trial court. Prewitt

v. State, 878 N.E.2d 184, 188 (Ind. 2007). On appeal, it is the appellant’s

burden to demonstrate that the trial court erred in the calculation of credit time.

Harding v. State, 27 N.E.3d 330, 332 (Ind. Ct. App. 2015). [8] Cook first argues that the trial court erred by finding the balance of his sentence

was 689 days, excluding credit days. Cook was initially sentenced to 913 days,

1 It appears that the period of time Cook was incarcerated from March 8 – April 4, 2017, was applied to a sentence or sentences in one or two unrelated criminal cases.

Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017 Page 3 of 5

with 124 days executed and 789 days suspended. It is undisputed that Cook

satisfied the executed portion of the sentence, leaving a balance of 789 days

suspended. The parties also agree that the trial court correctly determined that

Cook had satisfied an additional 100 days following his first probation

violation, leaving a balance of 689 days suspended. Next, Cook argues—and

the State concedes—that the trial court erred by finding that the balance of

Cook’s suspended sentence was 689 days, because following his third probation

violation, he served five days of his previously suspended sentence.

Consequently, the balance of his suspended sentence was at most 684 days.

Therefore, the trial court erred by finding that the balance of Cook’s sentence

was 689 days. [9] Cook also asserts that the April 4, 2017, order, which awarded him no jail time

credit, was erroneous and led to additional miscalculations in the June 15,

2017, order. Cook did not appeal the April 4, 2017, order, and may not now

argue that it was erroneous. [10] In any event, the record before us is insufficient to properly evaluate this

argument. Cook contends that the trial court did not credit him for twenty-

eight days he spent in jail between his arrest and the hearing for his third

probation violation. However, he acknowledges that this calculation is

complicated by intervening sentences in two other unrelated criminal cases.

The record does not contain sentencing orders or Chronological Case

Summaries from those other two cases. Cook requests that we take judicial

notice of the records in the other cases, but we find this to be unnecessary. On

Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017 Page 4 of 5

remand, the trial court can consider whether a calculation error related to these

other cases was made. [11] The judgment of the trial court is reversed and remanded with instructions to

credit Cook with at least five days on the balance of the suspended sentence and

to consider whether other credit is due based on the unrelated cases.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017 Page 5 of 5