Appellant Pro Se Attorneys for Appellee
Samuel I. Crow Steve Carter
Bunker Hill, Indiana Attorney General of Indiana
Andrew A. Kobe
Deputy Attorney General
Appeal from the Warrick Superior Court, No. 87D01-0105-CF-54
The Honorable Keith A. Meier, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 87A01-0301-CR-0005
March 10, 2004
Eleven months after his 2001 convictions and fifteen-year sentence for six counts of
theft, the defendant filed a motion to correct sentence alleging that the trial
court failed to grant him credit time in addition to actual time served.
In its denial of the motion, the trial court "su
ggest[ed] the defendant
consult with the [Department of Correction] concerning their assignment of credit time."
Appellee's Appendix at 6. Upon the defendant's appeal from the denial of
his motion, the Court of Appeals reversed and remanded, instructing the trial court
to issue a corrected abstract of judgment. Crow v. State, 797 N.E.2d
319, 325 (Ind. Ct. App 2003). We grant the State's petition to
transfer to resolve this case in accord with our opinion today in Robinson
v. State, ___ N.E.2d ___ (Ind. 2004).
The trial court's judgment of conviction imposing sentence stated: "defendant is entitled to
179 days of credit time." Appellee's Appendix at 5. This was
the only language in the judgment relating to the time spent in pre-sentence
confinement or the credit time earned. The Department of Correction's abstract of
judgment form completed by the trial judge in this case
See footnote i
ncluded the following
PART 3: JUDGE'S RECOMMENDATIONS
. . .
Class One Credit: YES ____ NO x
Credit days: 179
Appellee's Appendix at 9.
In Robinson, we hold that the "judgment of conviction, not the abstract of
judgment, is controlling." Robinson, ___ N.E.2d at ___ (slip opin. at 14).
While a motion to correct sentence may be used to address facial
errors in a sentencing judgment, it is not available to challenge entries or
omissions in an abstract of judgment. Id.
The trial court's sentencing judgment statement that "defendant is entitled to 179 days
of credit time" falls somewhat short of the statutory requirement that the judgment
must include "the amount of credit, including credit time earned, for time spent
in confinement before sentencing." Ind. Code § 35-38-3-2(b)(4). This statute requires
that the trial court's judgment of conviction separately include both the amount of
time spent by the defendant in confinement prior to imposition of sentence and
also the amount of credit time earned in accordance with the defendant's credit
time class. Robinson, ___ N.E.2d at ___ (slip opin. at 8).
In the interests of facilitating the fair and expeditious resolution of appellate litigation,
however, we note in Robinson that "[s]entencing judgments that report only days spent
in pre-sentence confinement and fail to expressly designate credit time earned shall be
understood by courts and by the Department of Correction automatically to award the
number of credit time days equal to the number of pre-sentence confinement days."
Id. at ___ (slip opin. at 12).
From the trial court's entry that the defendant "is entitled to 179 days
of credit time," it is unclear whether "179" represents the number of pre-sentence
days spent in confinement, the amount of credit time under Class I, or
the amount of credit time following a reduction in credit time class or
deprivation of credit time during pre-sentence confinement.
See footnote If the number of days
spent in pre-sentence confinement had been clearly indicated, an equal amount of additional
credit time would be presumed. We find entry in this case, however,
to be sufficiently ambig
uous so as to constitute an erroneous sentence on the
face of the judgment of conviction.
The State argues that the trial court does not have jurisdiction to grant
credit time for time spent in pre-sentence confinement. We reject this argument
today in Robinson, noting that the trial court has a statutory obligation to
include this determination in its sentencing judgment, but acknowledging that the Department of
Correction may thereafter modify such pre-sentence credit time determination. Id. at ___
(slip opin. at 11).
We reverse the judgment of the trial court denying the defendant's motion to
correct sentence and remand for correction in accordance with this opinion.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.