Jordan Guess v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
Jul 24 2012, 8:42 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JORDAN GUESS GREGORY F. ZOELLER
Indianapolis Re-Entry Educational Facility Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JORDAN GUESS, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1112-CR-620
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-0710-FB-3240
July 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Jordan Guess, pro se, appeals the trial court’s denial of his motion for jail time credit.
The sole issue presented for our review is whether the trial court abused its discretion when it
denied his motion. Guess has submitted an inadequate record on appeal and consequently
has waived our review of his claim. Therefore, we affirm.
Facts and Procedural History
On July 10, 2007, Guess was charged in Clay County with class B felony burglary.
While incarcerated in the Clay County Jail on that charge, Vigo County authorities served
Guess with an arrest warrant and charged him with another class B felony burglary. On
March 24, 2008, Guess pled guilty to the Clay County burglary charge and was sentenced to
ten years for that conviction. 1 On November 6, 2008, Guess pled guilty to the Vigo County
charge. Pursuant to a plea agreement, Guess pled guilty to class B felony burglary and
agreed to a ten-year executed sentence. The plea agreement provided that the Vigo County
sentence would be served consecutively to the sentence imposed in Clay County.
Accordingly, on December 1, 2008, the trial court sentenced Guess pursuant to the plea
agreement. The trial court determined that Guess was not entitled to any jail time credit for
his Vigo County sentence. Guess did not appeal his sentence.
On January 4, 2011, Guess filed a pro se motion for jail time credit. That motion was
denied by the trial court on January 14, 2011. Thereafter, in November of 2011, Guess filed
1
This information was provided by Guess in his appellant’s brief. The State does not challenge this
statement, and, although we will presume its accuracy, Guess has provided us no documentation in the record
to confirm this information.
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a petition for post-conviction relief again requesting jail time credit. On November 10, 2011,
the trial court summarily denied Guess’s petition for post-conviction relief, concluding that
post-conviction relief was not the proper avenue for Guess to pursue as he should have
sought direct appeal of the trial court’s original judgment. Guess filed a third request for jail
time credit on November 29, 2011. The trial court again denied Guess’s motion and
admonished Guess not to file repetitive motions seeking the exact same relief. Appellant’s
App. at 6, 32. This appeal ensued.
Discussion and Decision
Pre-sentence jail time credit is a matter of statutory right, not a matter of judicial
discretion. Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000). Indiana inmates
imprisoned awaiting trial or sentencing earn Class I jail time credit or “one (1) day of credit
time for each day [the inmate] is imprisoned for a crime or confined awaiting trial or
sentencing.” Ind. Code § 35-50-6-3(a). Jail time credit operates differently depending on
whether the sentences are consecutive or concurrent. Corn v. State, 659 N.E.2d 554, 558
(Ind. 1995). In concurrent sentencing cases, Indiana Code Section 35-50-6-3 entitles the
individual to receive credit time applied against each separate term; however, in consecutive
sentencing cases, credit time is awarded against the total or aggregate of the sentence terms.
Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied. This guards
against an award of “double credit” in situations where a defendant has arguably been
incarcerated at the same time on more than one offense if the sentences for multiple offenses
are to be served consecutively. French v. State, 754 N.E.2d 9, 17 (Ind. Ct. App. 2001).
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Although Guess claims that, based upon his time served in the Clay County Jail, he is
entitled to 413 days of jail time credit toward his Vigo County sentence, we are unable to
consider his claim due to his failure to provide us with an adequate record on appeal. Pro se
litigants are held to the same standard as trained legal counsel and are required to follow
procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. It
is the appellant’s duty to provide a record that reflects the error alleged. Williams v. State,
690 N.E.2d 162, 176 (Ind. 1997). To the extent the record is inadequate, it results in waiver
of the issue. Id; see Thompson v. State, 761 N.E.2d 467, 471 (Ind. Ct. App. 2002) (failure to
present adequate record regarding credit for time served resulted in waiver of the issue on
appeal).
Other than his mere allegations, Guess has presented no information in the record to
support his claim. Our review of the limited record before us indicates that Guess received
mandatory consecutive sentences pursuant to his plea agreement. Sentencing Tr. at 13-14.
As noted by the trial court during sentencing, Guess was in the Clay County Jail when the
arrest warrant was served for the Vigo County burglary. Pursuant to his plea agreement on
the Vigo County conviction, his ten-year Vigo County sentence was to be served
consecutively to his Clay County sentence. We are unaware of whether Guess received
credit for his time in the Clay County Jail against his Clay County conviction. Awarding
Guess jail time credit against his Vigo County conviction in addition to his Clay County
conviction would improperly result in double credit for the same time served. Guess has
presented us with no information concerning his Clay County plea agreement and whether he
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received the proper jail time credit when he was sentenced for his Clay County conviction.
Based upon the limited and inadequate record before us, there is no way for this Court to
discern whether Guess is entitled to any jail time credit. The issue is waived. Accordingly,
the judgment of the trial court is affirmed.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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