Brown was arrested on March 6, 2008, on various charges of dealing, possession, and false informing. On April 9, while Brown was in jail, the State filed four additional charges against him for dealing. Those additional charges were, apparently, [footnote omitted] factually distinct from the March 6 charges. On April 10, the State arrested Brown on the April 9 charges, although Brown was already in jail due to the prior arrest. Brown remained in jail until his October 15 sentencing hearing. At that hearing, Brown pleaded guilty to one of the four April 9 charges, in exchange for which the State dismissed all the other pending charges. The court sentenced Brown to ten years incarceration after finding no mitigating circumstances and finding Browns criminal history and violation of probation as aggravators. The trial court did not award Brown any credit time for time served. This appeal ensued.
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Finally, Brown asserts that the trial court erred when it refused to credit him with time served while he was awaiting trial and sentencing. On this issue, this court does not have a majority opinion, although two panel members agree that some award of pretrial credit is required under Indiana law.
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The parties express two mutually exclusive positions. The State’s position leads to the conclusion that credit time can never be earned when a defendant is in jail on multiple counts and at least one of those counts is eventually dismissed. But Brown’s argument on appeal suggests that all charges disposed of in a plea agreement entitle a defendant to credit for time served on those charges. Neither argument is wholly supportable.
Case law supports a middle ground. Specifically, in James v. State, 872 N.E.2d 669, 672 (Ind. Ct. App. 2007), this court noted as follows:
Our case law is clear that a defendant is not entitled to credit for time served on wholly unrelated offenses. As it is undisputed in this case that the re-filed charge is based on the same set of underlying facts as the dismissed charges for which James was incarcerated pending trial, giving James credit for his pre-trial incarceration is not giving him credit for a wholly unrelated offense. We hold that, in these specific circumstances, James was entitled to credit for his period of pre-trial incarceration and the trial court abused its discretion in denying it.
(Citations and quotations omitted.) That is, whether a defendant earns credit time for charges dismissed by a plea agreement turns on whether those charges and the charges on which the sentence is imposed are based on the same set of underlying facts. See id.
Here, there is no contention, and no reason to believe, that the dismissed March 6 charges were factually related to the April 9 charge on which Brown was eventually sentenced. Accordingly, Brown is not entitled to credit for time served from March 6 to April 10.
However, whether Brown is entitled to credit for time served between April 10 and October 15 presents an entirely different question. During that time period, Brown was incarcerated for the charge on which he eventually pleaded and was sentenced, along with the other dismissed charges. It has long been the law in Indiana that [a] defendant who is awaiting trials on different crimes during the same period of time and who is convicted and sentenced separately on each should have full credit applied on each sentence. Dolan v. State, 420 N.E.2d 1364, 1372 (Ind. Ct. App. 1981); see alsoFrench v. State, 754 N.E.2d 9, 17 n.6 (Ind. Ct. App. 2001) (noting that, under the precedent of Dolan, the trial court should have started calculating [the defendant's] credit time from the date of his arrest and not from the prior date of incarceration for unrelated charges); Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000) (It is well-settled that where a person incarcerated awaiting trial on more than one charge is sentenced to concurrent terms for the separate crimes, IC 35-50-6-3 entitles him to receive credit time applied against each separate term.), trans. denied. That is, a defendant in jail on multiple charges accrues credit time towards each charge.2 Here, while some of those charges and the credit time accrued against those charges were dismissed pursuant to the plea agreement, Brown nonetheless still accrued credit time towards his eventual sentence from April 10 to October 15. The trial court erred in not awarding Brown credit for that period of time served.
BAKER, C.J., concurring in part and dissenting in part:
[I]t is not disputed that the charges dismissed on March 6 were not related to the April 9 charge on which Brown was eventually sentenced. Thus, I agree with the lead opinion’s determination that Brown is not entitled to credit for time served from March 6 to April 10.
On the other hand, I cannot agree with the conclusion that Brown should receive credit for time served between April 10 and October 15. As the lead opinion notes, this court in Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), held that where the defendant incarcerated on more than one charge is sentenced to concurrent terms for the separate crimes, IC 35-50-6-3 entitles him to receive credit time applied against each separate term. However, Brown was not sentenced to concurrent terms of incarceration for separate crimes. Rather, he pleaded guilty to only one charge and the remaining unrelated counts were dismissed pursuant to the plea agreement. Because those charges were dismissed in accordance with the terms of the plea agreement, it follows that Brown was not incarcerated as a result of the charge for which he was sentenced. Thus, I cannot agree that the rule announced in Stephens cited above regarding Indiana Code section 35-50-6-3applies in these circumstances. Although the parties could have allowed for credit time that pertained to the wholly unrelated charges that were ultimately dismissed, the parties did not negotiate such terms in the plea agreement.
Additionally, I believe that this court’s opinion Dewees v. State is instructive here. In Dewees
[The defendant] was arrested . . . and confined to jail on a theft charge on August 12, 1981. An information was filed on August 18, 1981. Dewees made bond on September 1, 1981, and remained free . . . until September 3, 1981, when he was rearrested . . . on new unrelated theft and burglary charges. . . . Dewees remained in . . . jail until December 30, 1981, when, upon his plea of guilty pursuant to a written plea bargain, he was given a four-year executed sentence for the earlier theft charge. The later, unrelated burglary and theft charges were dismissed pursuant to the same plea bargain. The trial court credited the defendant with 21 days presentence jail time (apparently from August 12 to September 1).
444 N.E.2d 332, 332 (Ind. Ct. App. 1983). In affirming the trial court, we observed that
Although IC 35-50-6-3 states a defendant is allowed credit for time confined awaiting trial or sentencing, we conclude the Legislature clearly intended the credit to apply only to the sentence for the offense for which the presentence time was served. Any other result would allow credit time for time served on wholly unrelated offenses. Under the criminal justice system, once convicted, the defendant must serve the sentence imposed for the offense committed. Credit time allowed by legislative grace toward a specific sentence clearly must be for time served for the offense for which that specific sentence was imposed.
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Dewees was clearly not held more than 21 days on the charge for which he was sentenced. He is not entitled to any credit which may have accrued on a separate charge. The rule and the statute are based on the constitutional guarantees involving double jeopardy and equal protection. The end result is that a defendant, because of time spent in jail awaiting trial, will not serve more time than the statutory penalty for the offense, and will not serve more time than a defendant who has the good fortune to have bail money.
In light of the conclusion reached in Dewees, coupled with the rule that credit is to be applied for confinement time that is a result of the criminal charge for which sentence is being imposed, e.g., James, 872 N.E.2d at 672, I believe that the trial court properly denied Brown’s request for pretrial credit time. Thus, I would affirm the judgment in all respects.
KIRSCH, J., concurring and dissenting in part:
I concur in the decision of the lead opinion affirming Brown’s sentence and awarding him credit time from April 10, 2008 forward, but I respectfully dissent from the decision denying Brown credit time prior to such date.
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. . . Brown is not claiming double credit time; rather, he is asking that be given credit for the time spent in jail on charges that were resolved by his plea agreement. My belief is that where a trial court is sentencing pursuant to a plea agreement that resolves multiple charges, including the charge for which the defendant is being held in jail, that credit time should be accorded against the sentence ultimately imposed in the absence of a provision in the plea agreement to the contrary. Here, the State agreed to dismiss the charges for which Brown was being held. While such a provision is usually to the benefit of the defendant; here, it acted to Brown’s detriment. Had Brown pleaded guilty to one or more of such charges, he clearly would have been entitled to credit time against the resulting sentence.