ATTORNEY FOR APPELLANT
Nicholas C. Deets
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
SUPREME COURT OF INDIANA
TERRY R. KINCAID, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 06S01-0204-PC-258
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 06A01-0104-PC-138
Appellee (Plaintiff Below). )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable James R. Detamore, Judge
Cause No. 06D02-9607-CF-310
ON PETITION FOR TRANSFER
November 12, 2002
The Court of Appeals concluded that double jeopardy required that time served on
probation must be credited toward a new sentence of probation imposed for the
same conviction after a defendant successfully petitions for post-conviction relief. We agree.
Kincaids claim is also governed by Indiana Code section 35-50-1-5 and Post-Conviction
Rule 1(10), which require credit for time served by a successful post-conviction petitioner
who is resentenced. However, because Kincaid did not appeal his sentence until
after he violated the terms of his probation, the trial court did not
commit reversible error by requiring him to serve out the remainder of his
Factual and Procedural Background
On September 16, 1997, Terry Kincaid entered into a plea agreement with the
State under which he pleaded guilty to Operating While Intoxicated and Resisting Law
Enforcement in exchange for the States dropping charges of Escape, Attempted Theft, Criminal
Mischief, and a violation of probation in another case. On September 22,
1997, the trial court sentenced Kincaid to consecutive one-year sentences, suspended them but
for time served, and placed Kincaid on probation for two years. Kincaids
probationary period was extended an additional year on March 4, 1999, due to
On October 6, 1999, Kincaid filed a petition for post-conviction relief, arguing that
his guilty pleas were not made knowingly or voluntarily. On February 3,
2000, after Kincaid had served 636 days on probation,
the post-conviction court granted
Kincaids petition and set aside his convictions. On February 17, 2000, Kincaid
again pleaded guilty to Operating While Intoxicated and Resisting Law Enforcement, and received
two years probation. However, the trial court did not credit Kincaid with
the 636 days of probation he had already served before winning in the
On July 28, 2000, Kincaid violated his probation by again operating a vehicle
while intoxicated, and the State filed a petition to revoke probation. Kincaid
responded with a Motion to Correct Erroneous Sentence and to Dismiss Petition to
Revoke, contending that the trial court improperly failed to credit his sentence with
the 636 days he had served on probation under the original sentence.
If those days had been credited, he argued, his second two year probationary
term would have expired before the violation occurred. The trial court denied
Kincaid then filed a motion to reconsider, arguing that denying
him credit for the 636 days violated the constitutional prohibition against double jeopardy.
That motion also was denied. The trial court granted Kincaid leave
to seek an interlocutory appeal, but the Court of Appeals denied Kincaids petition
to do so. After the trial court denied an amended Motion to
Correct Erroneous Sentence and to Dismiss Petition to Revoke, Kincaid admitted violating his
probation. The trial court ordered Kincaid to serve the remaining portion of
his sentence, but stayed the order so that Kincaid might appeal that decision.
The Court of Appeals agreed with Kincaids double jeopardy claim, holding that Kincaid
was subjected to multiple punishments for the same offense.
Kincaid v. State,
757 N.E.2d 713, 718 (Ind. Ct. App. 2001). To hold otherwise, the
court stated, could have a chilling effect upon a defendants decision to file
a petition for post-conviction relief to set aside an illegal plea. Id.
This Court granted the States petition to transfer.
Credit for Time on Probation
A. Constitutional Grounds
The State contends that the Court of Appeals application of double jeopardy principles
to Kincaids case was erroneous, because Indiana law provides that a defendant does
not earn credit for time served while on probation. However, the case
the State cites, Via v. State, 738 N.E.2d 684 (Ind. Ct. App. 2000),
is not dispositive. Via addressed the issue whether probation time must be
credited when probation is revoked and the defendant ordered to serve out the
We agree that Via correctly held that a probation violation may result in
an executed sentence for the full term. But Kincaid is not claiming
that double jeopardy requires that a defendant who violates his probation and is
ordered to complete his prison term is entitled to credit for the time
spent on probation. That point is clearly settled against such a claim
under double jeopardy principles, because the probation and prison time are both part
of the same sentence. See, e.g., Hall v. Bostic, 529 F.2d 990,
992 (4th Cir. 1975). Rather, Kincaids claim is that a defendant who
succeeds in a post-conviction relief proceeding that vacates the initial sentence of probation,
and who is given a new sentence of probation for the same crimes,
is entitled to credit for the probation time already served.
Although the State concedes that probation is a form of criminal punishment, it
contends that probation should not be considered punishment for double jeopardy purposes.
However, the State cites no cases directly on point, and we agree with
the several courts that have rejected this contention, at least where the question
is whether the probationer can be required to re-serve probation time already served.
Kennick v. Superior Court, 736 F.2d 1277, 1281 (9th Cir. 1983) (citing
United States v. Bynoe, 562 F.2d 126, 128 (1st Cir. 1977); United States
v. Teresi, 484 F.2d 894, 899 (7th Cir. 1973); Oksanen v. United States,
362 F.2d 74, 80 (8th Cir. 1966); United States v. Rosenstreich, 204 F.2d
321 (2d Cir. 1953)); see also Commonwealth v. Walton, 397 A.2d 1179, 1184
(Pa. 1979) ([A]n order placing a defendant on
must be regarded as
for double-jeopardy purposes.). In North Carolina v. Pearce, 395 U.S. 711,
718-19 (1969), the United States Supreme Court held that the constitutional guarantee against
multiple punishments for the same offense absolutely requires that punishment already exacted must
be fully credited in imposing sentence upon a new conviction for the same
offense. That was clearly the case here. Kincaid served 636 days
of punishment (probation) for his first conviction, which was subsequently vacated, then served
an additional term of punishment (probation) for a second conviction based on the
very same offenses. Thus, the federal constitution requires that Kincaid receive 636
days credit from the first sentence toward the second sentence.
This Court has held that voluntarily accepting the terms of a plea agreement
results in the waiver of double jeopardy claims arising from the sentence imposed.
See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002); Games v.
State, 743 N.E.2d 1132, 1134-35 (Ind. 2001). However, Mapp, Games, and the
earlier cases upon which they rest do not address the present situation.
Rather, they deal with sentences that ordinarily would violate double jeopardy principlese.g., sentencing
for two facially duplicative charges, Mapp, 770 N.E.2d at 334, or an offense
and its factually lesser-included charge, Games, 743 N.E.2d at 1134-35but are imposed as
a result of a bargain specifically calling for conviction on both crimes.
Such an agreement forecloses the risk of charges on other counts and typically
provides an agreed or a maximum punishment. Acceptance of those benefits waives
any double jeopardy objection to conviction for the agreed crimes. Here, there
was no bargain on the part of Kincaid and the State to forego
crediting the 636 days Kincaid already had served in exchange for some other
consideration. In fact, it appears that the original sentence was simply reimposed
without the effect of Kincaids probation time being addressed by the parties or
the trial court. The issue was not raised until Kincaid claimed he
should not have remained on probation at the time of his latest OWI
incident. Under these circumstances Kincaid cannot be said to have agreed in
the plea agreement to forego his constitutional right to credit for time served.
B. The Statutory Right to Credit for Time Served
Kincaids claim also raises issues under Indiana Code section 35-50-1-5 and Post-Conviction Rule
1(10). Section 35-50-1-5 states:
(1) prosecution is initiated against a petitioner who has successfully sought relief under
any proceeding for postconviction remedy and a conviction is subsequently obtained; or
(2) a sentence has been set aside under a postconviction remedy and the
successful petitioner is to be resentenced;
the sentencing court may impose a more severe penalty than that originally imposed,
and the court shall give credit for time served.
(Emphasis added). Post-Conviction Rule 1(10)(b) similarly states:
If a sentence has been set aside pursuant to this rule and the
successful petitioner is to be resentenced, then the sentencing court shall not impose
a more severe penalty than that originally imposed unless the court includes in
the record of the sentencing hearing a statement of the courts reasons for
selecting the sentence that it imposes . . . and the court shall
give credit for time served.
Kincaids earlier sentence was set aside under a post-conviction remedy, and he was
resentenced. Therefore, both the statute and rule apply.
The issue is whether time on probation is time served that must be
credited when a successful post-conviction petitioner is again sentenced to probation for the
same offense. Neither the statute nor the rule carves out an exception
for time served on probation. And as the Court of Appeals pointed
out, if no credit is given, petitioners like Kincaid who serve out a
good portion of their sentence before the merit of their claim is decided
would face longer punishment than those who forego the post-conviction relief process.
This contravenes the principle on which the statute and rule are based: a
successful petitioner should not be put in a worse positionin Kincaids case, having
to serve almost twice as much time on probationthan if he had not
sought relief at all. Although both section 35-50-1-5 and Post-Conviction Rule 1(10)
permitted the trial court to impose a more severe sentence than two years
probation the second time around, they did not give it the discretion to
ignore the 636 days on probation Kincaid had already served.
Kincaids Failure to Challenge His Sentence Until After His Violation
Kincaid presumably could have challenged this failure to give proper credit, but he
had not done so by the time he committed the probation violation.
Kincaids argument is that his violation should be ignored because the sentence upon
which the probation was predicated was erroneous. We disagree. The Fourth
Circuit Court of Appeals analysis in United States v. Wright, Nos. 94-6410, 95-6123,
1995 U.S. App. LEXIS 15839 (4th Cir. June 27, 1995) (unpublished), is instructive.
Even though Kincaids sentence was erroneous, Kincaid was not entitled to make
that determination unilaterally and disregard the terms of his probation. Kincaid had
no more right to ignore the terms of his probation than he would
have to escape from prison based on his own conclusion that he was
wrongfully incarcerated. Self help is simply not a legal option for postconviction
relief. Id. at *15. Kincaid remained on probation subject to the
terms of his original sentence until adjudicated otherwise. Thus the trial court
did not commit reversible error by requiring Kincaid to serve out the unexecuted
portion of his sentence.
Although Kincaids new sentence should have credited him with the 636 days he
already served on probation, no court had so ruled and Kincaid remained on
probation at the time of his violation. Accordingly, the trial courts order
to serve the remainder of his sentence is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
The calculation of Kincaids probation time served may be found in the
Court of Appeals opinion.
Kincaid v. State, 757 N.E.2d 713, 718 (Ind.
Ct. App. 2001).
The trial courts new sentencing order and probation conditions make no mention
of how, if at all, the court accounted for the days Kincaid already
served on probation. The failure to mention those days raised the possibility
that the court believed it was imposing a new probationary period of two
years plus 636 days, giving credit to the 636 days Kincaid had served.
However, the courts later order on Kincaids motion to correct his sentence
makes clear that the days were not credited by the new sentence: This
Court is aware of no cases and does not believe that any Appellate
Court would determine that probation is being referred to by the words credit
for time served.
Footnote: Neither Kincaids motion nor the trial courts ruling is part of the
record on appeal.