Christopher Simpson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 30 2018, 6:55 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Christopher Simpson Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Francis H. Barrow Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Simpson, October 30, 2018 Appellant, Court of Appeals Case No. 18A-CR-1347 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable David C. Cates, Appellee. Judge Trial Court Cause No. 43D01-1308-FB-519

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018 Page 1 of 6 [1] Christopher Simpson, pro se, appeals from the trial court’s denial of his motion

for credit time. We affirm.

Facts and Procedural History [2] On October 15, 2015, the trial court entered a judgment of conviction providing

that Simpson committed the offenses of burglary as a class B felony under

Count I and criminal deviate conduct as a class B felony under Count II. The

court sentenced Simpson to consecutive terms of ten years in the Indiana

Department of Correction (the “DOC”) with four years suspended for his

conviction under Count I and ten years with four years suspended for his

conviction under Count II. [3] In November 2017, Simpson pursued a grievance stating that he was denied

credit for completing the Purposeful Living Units Serve program (the “PLUS

Program”). The Classification Division of the DOC sent a letter dated

November 16, 2017, to Simpson which provided:

This letter is in response to your recent correspondence concerning time cuts for programs completed.

The time cut for “PLUS” was denied. Part of your current incarceration includes a sex offense listed under IC 11-8-8-4.5, therefore, you are not eligible to receive reformative program time cuts. Credit time is not an appealable issue.

Appellant’s Appendix Volume 2 at 24. [4] In April or May 2018, Simpson filed a petition for educational credit with the

trial court requesting credit pursuant to Ind. Code § 35-50-6-3.3 and a Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018 Page 2 of 6

memorandum in support of his petition. Simpson alleged that he completed the

PLUS Program on January 10, 2017, and that the DOC failed to award him

educational credit for completion of the program. He argued that, while Ind.

Code § 35-50-6-3.3(d) provides in part that a person serving a sentence for an

offense listed under Ind. Code § 11-8-8-4.5 may not earn the educational credit,

he was serving a sentence for the offense of burglary and would “not complete

said sentence until April 16, 2018” and that he enrolled in and completed the

PLUS Program “while serving ‘a sentence’ for an offense NOT listed under I.C.

§ 11-8-8-4.5.” Id. at 12. Simpson attached a portion of a DOC manual which

listed the PLUS Program as an approved reformative program. The State filed

a response in opposition to Simpson’s petition in which it argued that Simpson

“was convicted and is serving his sentence, in part, as a result of his conviction

for Criminal Deviate Conduct, a class B felony, a sex offense enumerated in

I.C. 11-8-8-4.5” and that he is therefore ineligible for educational credit. Id. at

33. The court denied Simpson’s petition.

Discussion [5] Simpson claims the trial court should have granted his request for credit time

under Ind. Code § 35-50-6-3.3. We treat Simpson’s petition as one for relief

under Ind. Post-Conviction Rule 1. See Stevens v. State, 895 N.E.2d 418, 419

(Ind. Ct. App. 2008) (noting a request for credit time under Ind. Code § 35-50-6-

3.3 is treated as a petition for relief under Post-Conviction Rule 1). Simpson is

appealing from a negative judgment and must convince this court the evidence

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leads unerringly and unmistakably to a decision opposite that reached by the

trial court. See Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct. App. 2004). [6] Simpson argues that he enrolled in and completed the PLUS Program while

“serving the first sentence for burglary.” Appellant’s Brief at 6. He asserts “the

DOC is proceeding under the false premise that a person who serves

consecutive sentences is, in effect, serving a single sentence” and that he “did

not begin serving ‘a sentence’ enumerated in I.C. § 11-8-8-4.5 until April 17,

2018, well after he enrolled in and completed the PLUS program.” Id. at 9-10. [7] The State maintains that Simpson is not entitled to credit time, he is precluded

by Ind. Code § 35-50-6-3.3(d)(8) from receiving his requested credit time for

completion of the PLUS Program due to his conviction for criminal deviate

conduct, and credit time is applied to or deducted from the aggregate sentence

imposed and not an individual sentence. [8] Ind. Code § 35-50-6-0.5 defines “Educational credit” to mean “a reduction in a

person’s term of imprisonment or confinement awarded for participation in an

educational, vocational, rehabilitative, or other program.” Ind. Code § 35-50-6-

3.3 provides in part that a person may earn educational credit if, while confined

by the DOC, the person is in credit Class I, Class A, or Class B; demonstrates a

pattern consistent with rehabilitation; and “successfully completes requirements

to obtain at least one (1) of the following: . . . (D) A certificate of completion of

a reformative program approved by the department of correction.” Ind. Code §

35-50-6-3.3 further provides:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1347 | October 30, 2018 Page 4 of 6

(d) The amount of educational credit a person may earn under this section is the following:

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(8) Not more than a total of six (6) months, as determined by the department of correction, for completion of one (1) or more reformative programs approved by the department of correction. However, a person who is serving a sentence for an offense listed under IC 11-8-8-4.5 may not earn educational credit under this subdivision.

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(f) Educational credit earned by a person under this section is subtracted from the release date that would otherwise apply to the person by the sentencing court after subtracting all other credit time earned by the person.

(Emphases added). Ind. Code § 11-8-8-4.5, in turn, lists the offense of

“Criminal deviate conduct (IC 35-42-4-2) (before its repeal).” Ind. Code § 11-8-

8-4.5(a)(2). [9] The Indiana Supreme Court has held that “when consecutive sentences are

involved, credit time is deducted from the aggregate total of the consecutive

sentences, not from an individual sentence.” State v. Lotaki, 4 N.E.3d 656, 657

(Ind. 2014). See also Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999) (“Where a

defendant is convicted of multiple offenses and sentenced to consecutive terms,

the jail credit is applied against the aggregate sentence.”). Simpson is

committed to the DOC for his convictions for burglary and criminal deviate

conduct, an offense listed under Ind. Code § 11-8-8-4.5. Based on Ind. Code §

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35-50-6-3.3 and in light of Lotaki, he is not entitled to an educational credit.

Simpson has not established that the evidence leads unerringly and

unmistakably to a conclusion opposite that reached by the trial court.

Conclusion [10] For the foregoing reasons, we affirm the trial court’s ruling. [11] Affirmed.

Altice, J., and Tavitas, J., concur.

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