ELZEY v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Kortney Lee Elzey pled guilty to numerous offenses under several different cause numbers and received agreed upon sentences that called for executed time, probation, and/or placement in community corrections. Elzey had his probation revoked in each underlying cause for various reasons, resulting in changes to how he was to serve his time and requiring calculations of credit time earned.

[2] While serving time in the county jail, Elzey filed a pro se petition for post-conviction relief (PCR) and requested that such be forwarded to the State Public Defender (State PD). The trial court denied Elzey's request to refer his petition to the State PD because Elzey was not incarcerated in the Indiana Department of Correction (DOC). The court permitted Elzey to proceed in forma pauperis and ordered that the matter be submitted by affidavit. The court ultimately denied Elzey's request for PCR. On appeal, Elzey presents two issues for our review:

1. Did the trial court err in calculating Elzey's credit time?

2. Did the trial court err by not sending a copy of Elzey's PCR petition to the State PD?

[3] We affirm and remand with instructions.

Facts & Procedural History

[4] In January 2020, under Cause No. 35C01-2001-F6-17 (F6-17), the State charged Elzey with several felony and misdemeanor counts related to home improvement fraud. In April 2020, Elzey entered into a plea agreement in which he agreed to plead guilty as charged under F6-17 and guilty to a pending misdemeanor charge under another cause number in exchange for a sentence of six and one-half years, all suspended except for 210 days to be served on home detention. A few days later, Elzey was released to home detention. On August 6, 2020, Elzey completed his time on home detention and was released to begin serving his term of probation.

[5] In February 2021, while on probation, Elzey committed new offenses also related to home improvement fraud, resulting in charges under Cause No. 35D01-2102-F6-46 (F6-46). Based on the new charges, the State petitioned to revoke Elzey's probation under F6-17. Days later, the State charged Elzey with additional offenses under Cause No. 35D01-2102-F6-48 (F6-48). The State subsequently amended its petition to revoke Elzey's probation under F6-17 to reflect the new charges under F6-48. On October 26, 2021, the State charged Elzey with Level 6 felony check deception under Cause No. 35D01-2110-F6-325 (F6-325). Thereafter, on November 17, 2021, the State filed a second amended petition to revoke Elzey's probation under F6-17 to reflect the new charges under F6-325.

[6] Pursuant to a plea agreement, Elzey pled guilty as charged under F6-46, F6-48, and F6-325. On February 28, 2022, the trial court held a sentencing hearing for F6-46, F6-48, and F6-325 and a dispositional hearing on the probation violation under F6-17. In accordance with the plea agreement, the trial court sentenced Elzey to two and one-half years, all suspended but for 120 days executed in the Huntington County Jail under each F6-46, F6-48, and F6-325, with the sentences to be served consecutively. Elzey also admitted to violating his probation under F6-17, and the trial court ordered him to complete the remainder of his suspended sentence through day reporting with community corrections.

[7] On June 13, 2022, the State again petitioned to revoke Elzey's probation under F6-17 for failing to report daily to community corrections. He was arrested in October 2022 and remained in jail until December 9, 2022, when, by agreement of the parties, he was returned to day reporting. On April 24, 2023, the State filed another petition to revoke Elzey's placement in community corrections, and the trial court issued a warrant for his arrest. Elzey was arrested in May 2023. After Elzey admitted to this most recent probation violation, the trial court ordered that he serve three years of his suspended sentence in F6-17 in the Huntington County Jail and that the remainder of his sentence in community corrections be terminated. In its dispositional order dated May 24, 2023 (May Dispositional Order), the trial court stated: “[Elzey] has actual jail time credit for the dates 5/12/23 through 5/21/23, to wit: 10 days.”¹ Direct Appeal Appendix Vol. 3 at 87. The court thus awarded Elzey twenty days of credit time towards his three-year jail sentence.

[8] On August 1, 2023, Elzey filed a pro se PCR petition under F6-17. In his petition, Elzey requested the assistance of the State PD and attached an affidavit of indigency. The trial court denied Elzey's request for the assistance of the State PD because Elzey was not serving time in the DOC but granted him permission to proceed in forma pauperis. The trial court ordered the case to proceed by affidavit and the matter was transferred into Cause No. 35C01-2309-PC-9 (PC-9).

[9] On November 6, 2023, in F6-17, Elzey filed a pro se petition for writ of habeas corpus ² in which he alleged the court had incorrectly calculated his credit time. On November 8, 2023, the trial court denied this petition on the grounds that it was an unauthorized successive petition for post-conviction relief given Elzey's pending post-conviction petition under PC-9. Then, on November 22, 2023, the trial court issued a “Credit Time Clarification Order” in response to Elzey's handwritten correspondence inquiring as to the credit time applicable to F6-17. Appellant's Appendix Vol. 3 at 209. In addition to correcting a scrivener's error in the original sentencing order under F6-17, the court stated the following about credit time awarded in the May Dispositional Order:

A subsequent Petition to Revoke Community Corrections was filed on April 24, 2023. That warrant was executed on May 15, 2023. The Order on that Petition was signed May 22, 2023, which resulted in 8 actual days of jail credit, or 16 sentence days.

Id. at 210 (emphasis added). The court's calculation in the credit time clarification order modified its calculation in the May Dispositional Order.

[10] On October 26, 2023, the State petitioned to revoke Elzey's probation in F6-46, F6-48, and F6-325. The trial court revoked Elzey's probation in all three causes on November 30, 2023. In PC-9, the trial court took judicial notice of F6-17 and the parties submitted evidence by affidavit. On December 7, 2023, the court denied Elzey's request for PCR. In its order, the court again addressed Elzey's credit time in F6-17 and found as it did in its credit time clarification order—that Elzey had earned “8 actual days of credit, or 16 sentence days.” Post-conviction Appendix Vol. 3 at 73.

[11] On December 21, 2023, Elzey appealed the revocation of his probation in F6-46, F6-48, and F6-325, including the court's order clarifying credit time under F6-17. On January 4, 2024, Elzey appealed the denial of his PCR petition in PC-9. Upon Elzey's motion, the appeals were consolidated under the instant cause.³ Additional facts will be presented as necessary.

Discussion & Decision

1. Credit Time

[12] Elzey argues that he has been deprived of four days of credit time. Credit time is a matter of statutory right, and thus trial courts do not have discretion in awarding or denying it. Harding v. State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). Relevant here, a person convicted of a Level 6 felony who is not a credit restricted felon is initially assigned to Class A credit time and earns one day of good time credit for every day the person is imprisoned for a crime. See Ind. Code § 35-50-6-4(a); I.C. § 35-50-6-3.1(b).

[13] In arguing that he is entitled to four additional days of credit, Elzey directs us to the dispositional hearing and the May Dispositional Order in which the court found that he had been arrested on May 12 and served ten days in jail thereafter, and he was therefore entitled to twenty days of credit time. The State asserts that the May Dispositional Order incorrectly stated that Elzey was arrested on May 12, and points to the arrest warrant and chronological case summary that both show Elzey was arrested on May 15. The State therefore maintains that the trial court's subsequent order clarifying Elzey's credit time correctly stated that he was entitled to only sixteen credit days—eight days for time served following a May 15 arrest and eight days of good time credit.

[14] We agree with Elzey. After Elzey admitted to violating his probation in F6-17, the trial court held a disposition hearing during which the following was said about credit time:

THE COURT: Okay. [State], what's the uh amount of credit time that's calculated, not only on community corrections but also uh –

[THE STATE]: Judge, he was served um the warrant in- on this particular case April- or sorry, May 15th. Um, so the 15th until today he should receive credit time.

* * *

[THE STATE]: Yeah, so on this petition he will just have credit from May 15th through today's date.

THE COURT: Okay.

[ELZEY]: It was actually May 13th.

[THE STATE]: Were you picked up in another county?

[ELZEY]: Yes.

[THE STATE]: Okay. What county were you picked up in?

[ELZEY]: Allen County.

[THE STATE]: And how many days were you there before you were transferred to Huntington?

[ELZEY]: Uh, I was in Allen County for four days.

[THE STATE]: So, the 13th-

[ELZEY]: It was uh, Friday, Saturday, Sunday, and I didn't get here until Monday afternoon.

[THE STATE]: Okay. So, and you- you were arrested in Allen County on which date?

[ELZEY]: It was uh Friday. Would've been-

[THE STATE]: the 12th?

[ELZEY]: -the 12th.

[THE STATE]: Okay. Were you arrested on any other matter in Allen County, or just-

[ELZEY]: No, no.

[THE STATE]: -for this case?

[ELZEY]: It was just on that one.

[THE STATE]: Okay.

Supplemental Transcript Vol. 2 at 30-32. That same day, the court issued the May Disposition Order in which it found, consistent with the discussion at the dispositional hearing, that Elzey was arrested on May 12. The State did not dispute the court's calculation of credit time based on an arrest day of May 12 and, indeed, acquiesced with such at the disposition hearing. Although Elzey sought clarification of credit time through various motions, he never challenged the court's computation of credit time based on his detention following his May arrest for the probation violation under F6-17. Having reviewed the record, we conclude that, as the trial court originally calculated, Elzey is entitled to ten actual days and ten days of good time credit—for a total credit of twenty days. We remand to the trial court to reinstate the credit time initially awarded to Elzey in the May Disposition Order.

2. Post-Conviction

[15] Elzey argues that the trial court erred in not referring his PCR petition to the State PD. The State maintains that under the plain language of the post-conviction rules, the court was not obligated to refer Elzey's PCR petition to the State PD because Elzey was not incarcerated in the DOC when he filed it; rather, Elzey was confined in the Huntington County Jail.

[16] Ind. Post-Conviction Rule 1(2) provides, in pertinent part:

If an affidavit of indigency is attached to the [PCR] petition, the clerk shall call this to the attention of the court. If the court finds that the petitioner is indigent, it shall allow petitioner to proceed in forma pauperis. If the court finds the indigent petitioner is incarcerated in the Indiana Department of Correction, and has requested representation, it shall order a copy of the petition sent to the Public Defender's office.

(Emphasis added). Post-Conviction Rule 1(9)(a) addresses the responsibilities of the state PD when the trial court forwards a petition and affidavit of indigency to the State PD:

Upon receiving a copy of the petition, including an affidavit of indigency, from the clerk of the court, the Public Defender may represent any petitioner committed to the Indiana Department of Correction in all proceedings under this Rule, including appeal, if the Public Defender determines the proceedings are meritorious and in the interests of justice. The Public Defender may refuse representation in any case where the conviction or sentence being challenged has no present penal consequences.

[17] Elzey claims that Ind. Code § 33-40-1-2(a) is at odds with P-C.R.s 1(2) and 1(9)(a). We disagree. That statute provides that the State PD “shall represent” a petitioner who is “confined in a penal facility in Indiana or committed to the department of correction” and “financially unable to employ counsel ․ in a post-conviction proceeding testing the legality of the person's conviction, commitment, or confinement, if the time for appeal has expired.”⁴ I.C. § 33-40-1-2(a). This statute sets out the obligation of the State PD; it does not require the trial court to act. The trial court's obligation to act is clearly set out in the post-conviction rules and such requires the court to refer a PCR petition to the State PD when the petitioner is incarcerated in the DOC. Because Elzey was not incarcerated in the DOC but rather confined in the Huntington County Jail, the court did not err in denying his request to refer his petition to the State PD.

[18] We agree with the State that the post-conviction rules and I.C. § 33-40-1-2(a) are not in conflict. The rules do not prevent the State PD from representing a petitioner who is not incarcerated in the DOC. And the statute does not require the trial court to act. In short, the trial court did not err in denying his request for appointment of the State PD.

[19] We affirm and remand with instructions to award Elzey with credit time in accordance with this decision.

affirmed and remanded with instructions

FOOTNOTES

1.   The abstract of judgment reflects this same calculation of credit time.

2.   Elzey had previously filed a writ of habeas corpus in June 2023 under F6-17, which the court denied.

3.   Elzey does not challenge the revocation of his probation on appeal.

4.   A penal facility includes a local county jail. See Ind. Code § 35-31.5-2-232

Altice, Chief Judge.

Bailey, J. and Mathias, J., concur.