John M. Ross v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 09 2020, 10:54 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John M. Ross, April 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1725 v. Appeal from the Ohio Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge Trial Court Cause No. 58C01-1802-F2-2

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 1 of 4

Statement of the Case [1] John M. Ross appeals the trial court’s calculation of his credit time after Ross

pleaded guilty to conspiracy to dealing in methamphetamine, as a Level 4

felony; possession of methamphetamine, as a Level 5 felony; and to being a

habitual offender. We affirm.

Facts and Procedural History [2] On May 16, 2019, Ross entered into a plea agreement with the State in which

Ross agreed to plead guilty to conspiracy to dealing in methamphetamine, as a

Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to

being a habitual offender. Pursuant to the plea agreement, Ross was entitled to

“receive credit for time served as well as good time for the same.” Appellant’s

App. Vol. 3 at 138. He also “waive[d] the right to appeal any sentence

imposed . . . so long as the Court sentences [him] within the terms of this plea

agreement.” Id. [3] At his ensuing sentencing hearing, the court noted that the Presentence

Investigation Report (“PSI”) stated: “The Defendant has been serving a

Probation Violation sentence” in another cause number, although the violation,

which Ross admitted, was based on the instant offenses, and Ross was “entitled

to [zero] days” of credit “on his current cause.” Id. at 96. Ross responded that,

because his agreement stated that he “shall receive credit for time served, as

well as good time for the same,” even though “these matters must run

consecutively, by operation of law, . . . it would be appropriate for [Ross] to

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receive credit for the time he was in jail on both this case and the probation

violation . . . .” Tr. Vol. 2 at 19-20. The court asked Ross’s counsel, “So, is

your client asking for double credit?” Id. at 20. Ross’s counsel responded,

“Yes.” Id. Thereafter, the trial court sentenced Ross with zero days credit

time. This appeal ensued.

Discussion and Decision [4] Ross appeals the trial court’s award of zero days of credit time. “Because credit

time is a matter of statutory right, trial courts do not have discretion in

awarding or denying such credit.” Harding v. State, 27 N.E.3d 330, 331-32 (Ind.

Ct. App. 2015). However, it is the appellant’s burden to show that the trial

court’s calculation of credit time is erroneous. Id. [5] Ross’s entire argument on appeal is that his plea agreement unambiguously

entitled him to an award of credit time in the instant cause equivalent to the

award of credit time he received while serving his probation violation in a

separate cause. 1 We cannot agree. Ross’s plea agreement stated that he “shall

receive credit for time served as well as good time for the same.” Appellant’s

App. Vol. 3 at 138. That language unambiguously entitled him only to any

credit time he had properly accrued “for time served” on the instant cause,

which likewise required the court to consider extrinsic evidence, namely, the

1 The State asserts that Ross waived his right to appeal his sentence in his plea agreement. But Ross’s waiver was limited to only if the court sentenced him in accordance with the terms of the plea, and his argument on appeal is that that did not happen. As such, Ross’s argument is properly before us.

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PSI, to determine that time. Nothing in the plea agreement’s language entitled

Ross to a particular amount of credit time or to credit time to which he would

not otherwise have been entitled. [6] Ross makes no argument on appeal that he was entitled by statute to receive

credit time in the instant cause in addition to the credit time attributed to his

probation violation. His only argument is that his plea agreement was intended

to require the court to double count his credit time. Again, we reject that

argument and, as such, we affirm the trial court’s calculation of Ross’s credit

time pursuant to his plea agreement. [7] Affirmed.

Kirsch, J., and Brown, J., concur.

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