Dylan R. Jones, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Dylan R. Jones appeals the trial court's granting of the State's motion to correct erroneous sentence and its denial of sentencing credit. We affirm the trial court's ruling on the motion to correct erroneous sentence and remand for recalculation of Jones's sentencing credit.

Facts and Procedural History

[2] Between January and September 2019, Jones committed multiple offenses in Knox County and was detained in and released from jail on multiple occasions. On March 6, the State charged Jones with one Level 4 felony and two Level 6 felonies under cause number 42C01-1903-F4-9 (“F4-9”). On March 22, the State charged Jones with three Level 6 felonies and two Class A misdemeanors under cause number 42C01-1903-F6-142 (“F6-142”). On October 4, the State charged Jones with one Level 6 felony and one Class A misdemeanor under cause number 42C01-1910-F6-409 (“F6-409”). And on October 29, the State charged Jones with two Level 6 felonies and one Class A misdemeanor under cause number 42C01-1910-F6-438 (“F6-438”). Jones served eighteen days in jail under F4-9, twenty-seven days under F6-142, seven days under F6-409, and seven days under F6-438. In addition, Jones was detained in jail under all four cause numbers for 553 days between May 4 and November 7, 2021. At that point, Jones had additional felony charges pending against him in Knox County under six different cause numbers.

[3] At a guilty plea/sentencing hearing on November 8, 2021, Jones pleaded guilty pursuant to a written plea agreement that resolved all ten causes. He pleaded guilty to a total of eight Level 6 felonies: residential entry ¹ and auto theft ² in F4-9; two counts of counterfeiting ³ and one count of identity deception ⁴ in F6-142; theft ⁵ in F6-409; and fraud ⁶ and theft in F6-438. The State agreed to dismiss the remaining charges in those causes as well as all charges in the other six causes. Pursuant to the plea agreement, Jones and the State “agreed to a total sentence of 20 years[,]” with thirty months executed in the Department of Correction on each count, to be served consecutively, “with credit for time already served on each count[.]” Appellant's App. Vol. 2 at 149.

[4] After the trial court accepted Jones's guilty plea, the following exchange occurred:

THE COURT: ․. Mr. Jones, it was your understanding that all four cases are to be served consecutively, one behind the other, is that correct?

THE DEFENDANT: Yes, Your Honor.

THE COURT: If you're out on bond and you commit another crime; by law, it has to be served consecutively. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. I just wanted to clarify that to make sure I had that correct.

And so -- unless otherwise stated, the counts and the cause numbers are to be served consecutively by Mr. Jones.

․.

The credit days noted in [F4-9], F6-142, F6-409, and F6-438. In [F4-9], credit time shown, 571 days. In [F6-142], 580 days. In [F6-409], 560 days. And in [F6-438], 560 days.[7]

And, Mr. Steiner [deputy prosecutor], is it my understanding he is to receive credit on each of those cases for the days as stated?

MR. STEINER: I believe so, Your Honor.

THE COURT: Mr. Traylor [defense counsel], I assume you don't object to that?

MR. TRAYLOR: That's correct, Your Honor.

THE COURT: And Mr. Jones, you understand that? You're going to get credit on each of these cases based upon the stipulation --

THE DEFENDANT: Yes, Your Honor.

THE COURT: -- and the agreement of the parties?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Show that Mr. Jones will receive credit time as included and stated in the presentence investigation report, and as stated for the record by the Court at this time. Mr. Jones, is there anything at all about the sentences which have been imposed upon you that you don't understand?

THE DEFENDANT: No, Your Honor.

THE COURT: Everything is clear?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Any question about anything at this time?

THE DEFENDANT: No, Your Honor.

THE COURT: Mr. Steiner, anything else on your part at this time?

MR. STEINER: No, Your Honor. Thank you.

THE COURT: Mr. Traylor, anything on your part at this time?

MR. TRAYLOR: Nothing further, Your Honor.

Tr. Vol. 2 at 18-19.

[5] That same day, the trial court issued a sentencing order that reads in pertinent part as follows:

In [F4-9] on Count II: Residential Entry, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. On Count III: Auto Theft, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. The defendant shall receive credit for time served in the Knox County Law Enforcement Center of five hundred seventy-one (571) days with good time credit to apply.[8] The sentence in Count III shall run consecutively to the sentence in Count II.

In [F6-142], on Count I: Counterfeiting, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. On Count II: Counterfeiting, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. On Count III: Identity Deception, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. The defendant shall receive credit for time served in the Knox County Law Enforcement Center of five hundred eighty (580) days with good time credit to apply. The sentence in Count II shall run consecutively to the sentence in Count I, and the sentence in

Count III shall run consecutively to the sentence in Count II, and the sentence in this cause shall be served consecutively to the sentence in [F4-9].

In [F6-409], on Count II: Theft, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. The defendant shall receive credit for time served in the Knox County Law Enforcement Center of five hundred sixty (560) days with good time credit to apply. The sentence in this cause shall be served consecutively to the sentence in [F6-142].

In [F6-438], on Count I: Fraud, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. On Count III: Theft, a Level 6 Felony, the defendant shall be sentenced to thirty (30) months in the Indiana Department of Correction. The sentence in Count III shall be served consecutively to the sentence in Count I, and the sentence in [F6-438] shall be served consecutively to the sentence in [F6-409]. The defendant shall receive credit for time served in the Knox County Law Enforcement Center of five hundred sixty (560) days with good time credit to apply.

Appellant's App. Vol. 2 at 154-55 (bold emphases omitted). An abstract of judgment for each cause was issued on November 9. Later that month, Jones was released from the Knox County Jail. See Tr. Vol. 2 at 28 (trial court remarking at resentencing hearing, “So when I look at jail tracker, it shows a release date of 11/10/21.”); Appealed Order at 2 (finding that Jones was released on November 27, 2021).

[6] On December 16, 2021, the State filed a “Motion to Correct Error,” which asserted that Jones was “given credit in multiple cause numbers for the same pre-trial detention” that he was “not entitled to receive.” Appellant's App. Vol. 3 at 13.⁹ The trial court did not hold a hearing or rule on this motion.¹⁰

[7] On January 26, 2023, the State filed a “Motion to Correct Errors and Motion to Correct Erroneous Sentence,” which states,

1. The Parties agreed to a Plea wherein the Defendant was to serve a 20 year sentence.

2. As part of the negotiation, the Defendant and State agreed that he would plead to consecutive Level 6 Felonies.

3. After the Plea hearing, the Court erroneously applied credit for time served on one of the Level 6 Felonies to all of them. The result was that the Defendant received 20 days of credit for each day served.

4. The Court's error, in applying credit time, contravenes the Parties[’] Agreement and is contrary to the law. The sentences for offenses committed while out on bond for other offenses is required to be served consecutively.

WHEREFORE, the State of Indiana requests that this Court correct the erroneous credit calculation and order the Defendant to return to custody to serve the remainder of his agreed sentence, and that the Court grant any other relief, just and proper in the premises.

Appellant's App. Vol. 2 at 168.

[8] Jones filed an objection to the State's motion, which he characterized as a motion to correct error that was untimely pursuant to Indiana Criminal Rule 16(B) (now Criminal Rule 5.3(B)). See Ind. Crim. Rule 5.3(B) (“A motion to correct error, if any, must be filed within thirty days after the date of sentencing, or the date of entry on the chronological case summary of an order of dismissal or an order of acquittal.”). Jones also observed that the State had failed to timely file a notice of appeal of the deemed denial of its first motion to correct error. See Ind. Trial Rule 53.3(A) (“In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.”). Jones further suggested that the State invited any error when the deputy prosecutor agreed with the trial court's credit time recitation at the guilty plea/sentencing hearing.

[9] In April 2023, after a hearing, the trial court issued an order stating in pertinent part,

AND THE COURT, having read the filings of the parties and heard the arguments of counsel, now makes the following findings:[11]

1. The State's Motion to Correct Error was not filed timely and should be denied as such;

2. The State's Motion to Correct Erroneous Sentence was filed timely as the relevant statute [Indiana Code Section 35-38-1-15] is specific and does not have a time limit imposed on the filing of such a Motion; and

3. The allegations contained in the State's Motion to Correct Erroneous Sentence that the Court's sentencing error was a mistake that does not render the entire sentence void is well-received by the Court.

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that the State's Motion to Correct Error is DENIED.

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the State's Motion to Correct Erroneous Sentence is GRANTED, over the Objections of the Defendant, which are DENIED.

Appellant's App. Vol. 3 at 39. The court set a resentencing hearing for July 5. Jones failed to appear, and the court issued a warrant for his arrest, which was served on August 19, 2024.

[10] On October 21, the trial court held the resentencing hearing, at which no evidence was presented. The court then issued an order that reads as follows:

1. The Defendant was originally sentenced in these matters on November 8, 2021 and was taken into custody by the Knox County Sheriff at that time;

2. The Defendant was released from custody at the Knox County Jail on these matters and was transported to the Illinois Department of Corrections on November 27, 2021, where he was to serve a sentence for matters unrelated to the instant cases;

3. The Defendant's release from the Knox County Jail was based on this Court's written Order, wherein the Court wrote that the Defendant's credit time would be applied to each count of each cause, which resulted in the appearance of the Defendant having served his time;

4. The State filed a Motion to Correct Erroneous Sentence on January 26, 2023, and the same was granted on April 6, 2023;

5. The Court set this matter for Re-Sentencing Hearing on July 5, 2023. At that time the Defendant was still incarcerated in the Illinois Department of Corrections for unrelated matters, and as such, the Court issued a warrant for the Defendant and Ordered that the Sentencing Hearing be re-set upon the Defendant's apprehension;

6. The Illinois Department of Corrections did not serve the Defendant with this Court's warrant upon his release from incarceration, and this Court's warrant remained active;

7. The Defendant was arrested in Vanderburgh County, IN for allegations unrelated to the instant matters, and upon his arrest was served with this Court's warrant on August 19, 2024. The instant hearing was scheduled;

8. During the instant hearing counsel for the Defendant requested that the Defendant be given credit against his sentence time from November 8, 2021 through the present, based on the erroneous early release from the Knox County Jail on November 27, 2021; and

9. The Court finds that the Defendant has been provided a hearing and opportunity to be heard on his request for additional credit time during his period of erroneous release, and that the evidence presented at hearing is not persuasive within the parameters of Temme v. State, 169 N.E.3d 857 (Ind. 2021).

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F4-9], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections on Count II. The Defendant shall receive credit for five hundred seventy-one (571) actual days served and five hundred seventy-one (571) credit days awaiting disposition;

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F4-9], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections on Count III. The Defendant has accrued no credit for incarceration awaiting disposition for this Count. This Sentence shall be served consecutive to that to be served for Count II of this Cause;

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F6-142], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections on Count I. The Defendant has accrued twenty-seven (27) actual days and twenty-seven (27) credit days of incarceration awaiting disposition. This Sentence shall be served consecutive to that to be served in [F4-9];

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F6-142], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections on Count II. The Defendant has accrued no credit for incarceration awaiting disposition for this Count. This Sentence shall be served consecutive to that to be served for Count I of this Cause;

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F6-142], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections on Count III. The Defendant has accrued no credit for incarceration awaiting disposition for this Count. This Sentence shall be served consecutive to that to be served for Count II of this Cause;

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F6-409], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections. The Defendant has accrued seven (7) actual days and seven (7) credit days of incarceration awaiting disposition for this Cause. This Sentence shall be served consecutive to that to be served for [F6-142];

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in [F6-438], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections for Count I. The Defendant has accrued no credit for incarceration awaiting disposition for this Count. This Sentence shall be served consecutive to that to be served in [F6-409];

IT IS FURTHER CONSIDERED, ORDERED, ADJDUGED AND DECREED that in [F6-438], the Defendant shall serve a sentence of thirty (30) months in the Indiana Department of Corrections for Count III. The Defendant has accrued no credit for incarceration awaiting disposition for this Count. This Sentence shall be served consecutive to that to be served for Count I of this Cause;

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that all remaining terms of this Court's Sentencing Order, dated November 8, 2021, shall remain in full force and effect, as if the same were set forth herein.

Appealed Order at 1-4. Jones now appeals both the trial court's ruling on the State's motion to correct erroneous sentence and its decision not to award him any additional credit time in its resentencing order.

Discussion and Decision

Issue One: Motion to Correct Erroneous Sentence

[11] Jones argues that the trial court erred in granting the State's motion to correct erroneous sentence. “[W]e defer to the trial court's factual findings and review the decision for an abuse of discretion.” Hill v. State, 122 N.E.3d 979, 981 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it.” Id. “[W]e review legal conclusions de novo.” Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). We also interpret plea agreements de novo. Anderson v. State, 141 N.E.3d 862, 867 (Ind. Ct. App. 2020), trans. denied.

[12] Jones's argument is multipronged. He first insists that the motion is actually a motion to correct error because “it is not a Motion to Correct Erroneous Sentence under Indiana Code § 35-38-1-15.” Appellant's Br. at 22. That statute provides,

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

I.C. § 35-38-1-15. Our Supreme Court has stated that “[t]he purpose of the statute ‘is to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence.’ ” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quoting Gaddie v. State, 566 N.E.2d 535, 537 (Ind. 1991)). The Court has also stated that “[t]he plain language of this provision, with its requirement of notice to a defendant, is not limited only to defendants, but by clear implication is also available to the State.” Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009).

[13] Jones asserts that the State's motion “is unsupported by a memorandum of law” in that it “contains no decisional law, statutory authority, or argument that [his] sentence is facially erroneous.” Appellant's Br. at 23. He further asserts that the motion does not “specify a defect in [his] sentence” because credit time “is not an aspect of the defendant's sentence itself.” Id.

[14] The State points out that Jones did not raise these arguments before the trial court and contends that they are therefore waived. We agree. “To avoid waiver, Indiana courts have long required litigants to first raise the issue before the trial court.” Holladay v. State, 212 N.E.3d 715, 719-20 (Ind. Ct. App. 2023). This rule “in part protects [the] integrity of [the] trial court, as it cannot be found to have erred as to an ‘argument that it never had an opportunity to consider[.]’ ” Robey v. State, 168 N.E.3d 288, 293 (Ind. Ct. App. 2021) (quoting Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014)).

[15] Waiver notwithstanding, in State v. Lotaki, 4 N.E.3d 656 (Ind. 2014), our Supreme Court had no qualms about the State using a motion to correct erroneous sentence to challenge a credit time error. And we agree with the State that its motion in this case “specifically point[ed] out the defect in the original sentence” and that the lack of “explicit citations to authority ․ goes only to [the] quality [of its legal memorandum], not its existence.” Appellee's Br. at 21 n.5.

[16] Jones further contends that even if the State's motion is a motion to correct erroneous sentence, to the extent that Indiana Code Section 35-38-1-15 allows such motions to be filed more than thirty days after the sentencing date, the statute impermissibly conflicts with Criminal Rule 5.3(B); thus, the rule's thirty-day deadline applied, and the motion was untimely. See Appellant's Br. at 25 (quoting Key v. State, 48 N.E.3d 333, 339 (Ind. Ct. App. 2015) (“[I]t is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence.”)). Jones also failed to raise this issue below, and therefore it is waived. Holladay, 212 N.E.3d at 719.

[17] Waiver notwithstanding, because the State's motion is a motion to correct erroneous sentence, and Criminal Rule 5.3(B) governs motions to correct error, we see no conflict here. We find the State's argument on this point persuasive:

A motion to correct erroneous sentence is not a motion to correct error; they are two separate, distinct creatures. A motion to correct error provides a far greater scope of review and can be used to challenge the validity of the trial proceedings and the validity of the convictions; it is not limited to the correction of unlawful sentences.

If the two types of motions were not understood to be discrete procedures, defendants would also be precluded from filing a motion to correct erroneous sentence after 30 days, which has never been the law and which would defeat the purpose of having this separate proceeding, namely to provide a mechanism for easy correction of obvious sentencing errors where no other review of the case is sought.

Appellee's Br. at 19.¹² See Lotaki, 4 N.E.3d at 658 (“[W]hile we agree with Lotaki that the better procedure is for the State to raise the issue of an illegal sentence at the earliest opportunity, Hardley expressly allows the State to raise it at a later time”); Hardley, 905 N.E.2d at 403 (citations omitted) (“There is no requirement that a motion to correct a sentence under § 35-38-1-15 must be made within thirty days of the final judgment. And in Robinson, we observed that such challenges could be filed even after a post-conviction proceeding. 805 N.E.2d at 788.”).¹³

[18] Next, Jones asserts that the trial court erred in granting the State's motion because “[m]otions to correct erroneous sentences offer relief only where the error is apparent on the face of the challenged order.” Appellant's Br. at 28. Again, Jones has waived his argument because he failed to raise it below. Holladay, 212 N.E.3d at 719.

[19] Waiver notwithstanding, our Supreme Court has specifically stated that this rule applies to criminal defendants but does not apply to the State. See Hardley, 905 N.E.2d at 402 (“To limit the State's use of a motion to correct erroneous sentence to facially erroneous sentencing judgments effectively circumscribes the State from seeking to correct illegal sentences imposed by a trial court contrary to statutory authorization. We thus decline to extend Robinson’s ‘facially erroneous’ requirement to restrict efforts by the State to challenge an illegal sentence.”).¹⁴

[20] Turning to the merits of the trial court's ruling on the State's motion to correct erroneous sentence, we note that Jones does not disagree with the State's summary of applicable law regarding credit time awards:

The law in Indiana is clear: when a defendant is incarcerated awaiting trial on more than one charge, he receives credit for those days served against each charge only if the sentences are run concurrently; if the sentences are run consecutively, the credit applies only toward the aggregate sentence, not toward each count or cause number. To award the credit against each sentence would improperly allow the defendant to serve part of his consecutive sentences concurrently.

Appellee's Br. at 18 (citing, inter alia, Lotaki, 4 N.E.3d at 657).¹⁵

[21] The State further observes, and Jones does not dispute, that “[w]hen parties enter into a plea agreement contract, they are ‘entitled to presume that the trial court will order performance of the contract in compliance with the law.’ ” Id. at 27 (quoting Crider v. State, 984 N.E.2d 618, 624 (Ind. 2013)). According to the State,

With respect to F4-9, F6-142, and F6-438, the agreement provided that [Jones] would receive a sentence of 30 months in the DOC on each count, “with credit for time already served on each count,” with the sentences to run consecutively to each other and to the other counts. With respect to F6-409, the cause that had only one count charged, the agreement provided that [Jones] would receive a sentence of 30 months in the DOC, “with credit for time already served,” to be served consecutively to the other causes. This language did not mean that all of [Jones's] credit time was to be applied to each individual count. Rather, it meant that, as to each count, [Jones] would receive credit for the time served lawfully attributable to that count. For time-served days already applied to an earlier count, those days no longer counted as “time served” for the subsequent count.

․.

Here, the plea agreement did not explicitly state that Defendant would receive credit for the overlapping 553 days served in each of the four causes, and it did explicitly require the sentences to all run consecutively. In the absence of an explicit agreement to overlapping credit, the State was entitled to presume that the trial court would allocate the “time already served” on each count consistent with Indiana law, which holds that once time served is allocated to one count, it does not also apply to any subsequent consecutive counts. It is [Jones], not the State, who is trying to change the terms of the agreement the parties entered into.

Id. at 26-27, 28 (record citations omitted). Based on our reading of the plea agreement, we must agree.

[22] As he did below, Jones suggests that the deputy prosecutor invited any error by “explicitly agree[ing]—twice” with the trial court's credit time recitation at the guilty plea/sentencing hearing. Appellant's Br. at 30. The State contends, and we agree, that the invited error doctrine is inapplicable because there is no evidence of “strategic maneuvering” on the deputy prosecutor's part. Appellee's Br. at 29 (quoting Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019)). Instead, as the State posits, “[t]he transcript is fairly read as showing that the prosecutor was simply agreeing that the trial court's recitation of the probation department's calculation of the days [Jones] had been held on the charges in each cause was correct.” Id. (record citation omitted). And, “[a]t most, the prosecutor's response is indicative of a misunderstanding of the question the court was asking.” Id. at 30. We note that Jones does not specifically assert that he was somehow misled by the deputy prosecutor's response and that the trial court had already accepted his guilty plea at that point.¹⁶

[23] In light of the foregoing, we conclude that the trial court did not abuse its discretion in granting the State's motion to correct erroneous sentence. Therefore, we affirm that ruling.

Issue Two: Denial of Credit Time

[24] Jones also argues that the trial court erroneously denied him credit time in several respects. “[T[here are two types of credit that must be calculated: ‘(1) the credit toward the sentence a prisoner receives for time actually served[, i.e., accrued time], and (2) the additional credit a prisoner receives for good behavior[, i.e., good time credit].” Moon v. State, 110 N.E.3d 1156, 1160 (Ind. Ct. App. 2018) (quoting Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999)). “Credit time is a matter of statutory right and trial courts do not have discretion in awarding or denying such credit.” Id.

[25] We first address the subissue that both Jones and the State agree on:

that the trial court erroneously deprived him of a portion of his credit time by applying all 571 days of time served, plus good time credit of 571 days, to his conviction on Count II in F4-9 and applying no days of that credit time to his conviction in Count III in F4-9.

Appellee's Br. at 31. The State properly concedes that, with his good time credit, Jones was “entitled to 1142 total days of credit toward this cause” and that “his 30-month sentence on Count II is less than 1142 days; it is 910 days.” Id. “Thus, properly applying his accrued credit to his aggregate sentence, there were still 232 total days of credit remaining that should have been applied to his 30-month sentence on Count III ․.” Id. Accordingly, “[r]emand is appropriate to fix that error.” Id.

[26] Jones also argues that, assuming that the trial court's resentencing order “is correct that [he] was erroneously released from the Knox County Jail on or about November 27, 2021, he should have also been provided ․ the actual/accrued and good time credit for the period of time of November 8, 2021, through and including November 27, 2021.” Appellant's Br. at 39. The State offers no response to this argument, and we see no grounds for disputing it. Accordingly, remand is appropriate to fix that error as well.

[27] Next, relying on Temme v. State, 169 N.E.3d 857 (Ind. 2021), Jones argues that he is entitled to credit time for the period between his premature release from jail in November 2021 and his arrest on the trial court's warrant on August 19, 2024. In Temme, our Supreme Court stated,

As long as the defendant bears no active responsibility in his early release, he or she is entitled to credit while erroneously at liberty as if still incarcerated.

This straightforward rule, however, does not relieve the defendant of his or her sentence. The defendant's projected release date serves as a firm backstop. When it discovers an error, the State must petition a trial court to recommit the defendant to resume his or her sentence if, after calculating credit time, any sentence remains to be served.

Today's finding is grounded in the idea that the State may not play cat and mouse with a defendant so as to push back a prisoner's release date, particularly if the prisoner bears no responsibility for the State's error. It also considers the prisoner's interest in serving a predictable sentence, places a limit on arbitrary use of government power, and fulfills society's expectation that a prisoner is held accountable for his or her actions.

Id. at 864 (citation omitted).

[28] There is no dispute that Jones was erroneously released early from his sentence in November 2021.¹⁷ The State contends that Jones bore active responsibility for his release by telling “the trial court at the sentencing hearing that the court's allocation of credit time was correct, even though it was inconsistent with the terms of the plea agreement [he] had signed and with Indiana law.” Appellee's Br. at 34. We cannot agree with this contention. Jones's counsel merely stated that he did not object to the trial court's credit time recitation, with which the deputy prosecutor also agreed. Tr. Vol. 2 at 18. Jones did not dupe the trial court (or the jail warden) into releasing him prematurely.

[29] The State also asserts that, unlike Temme, Jones was not “ ‘at liberty’ the entire time following his erroneous release[,]” and therefore the rule stated in Temme is inapplicable. Appellee's Br. at 35. According to the State, “the record shows that [Jones] was incarcerated in Illinois on an unrelated Illinois case for much of the period following his erroneous release in this case” and later was incarcerated in Vanderburgh County on an unrelated charge. Id. The problem with this assertion, as Jones points out, is that the State presented no competent evidence of these incarcerations at the resentencing hearing.¹⁸ And, in its order, the trial court did not state that it took judicial notice of them sua sponte.¹⁹ In sum, we conclude that Temme applies and that Jones is entitled to credit time for his erroneous premature release.

[30] Finally, Jones argues that he is entitled to credit time for his incarceration following his August 19 arrest until his October 21 resentencing hearing. The State's only objection to this argument is based on Jones's alleged incarceration in Vanderburgh County, for which it presented no evidence at the resentencing hearing. Accordingly, we agree with Jones on this argument as well.

Conclusion

[31] We affirm the trial court's granting of the State's motion to correct erroneous sentence and remand to recalculate Jones's credit time as set forth above.

[32] Affirmed and remanded.

FOOTNOTES

1.   Ind. Code § 35-43-2-1.5 (2019).

2.   I.C. § 35-43-4-2(a) (2019).

3.   I.C. § 35-43-5-2(a)(1)(A) (2019).

4.   I.C. § 35-43-5-3.5(a) (2019).

5.   I.C. § 35-43-4-2(a) (2019).

6.   I.C. § 35-43-5-4(1)(A) (2019).

7.   Here, and elsewhere in the transcript and the parties’ trial court filings, “credit time” or “credit for time served” refers to what Indiana Code Section 35-50-6-0.5(1) defines as “accrued time,” i.e., “the amount of time that a person is imprisoned [or] confined[.]” Indiana Code Section 35-50-6-0.5(3) defines “credit time” in pertinent part as “the sum of a person's accrued time [and] good time credit[.]” “Good time credit” is “a reduction in a person's term of imprisonment or confinement awarded for the person's good behavior while imprisoned [or] confined[.]” I.C. § 35-50-6-0.5(5). Our references to “credit time” below are based on the statutory definition.

8.   A person, like Jones, “(1) who is not a credit restricted felon; and (2) who is imprisoned for a Level 6 felony or a misdemeanor or imprisoned awaiting trial or sentencing for a Level 6 felony or misdemeanor; is initially assigned to Class A” for credit time purposes. I.C. § 35-50-6-4(a). “A person assigned to Class A earns one (1) day of good time credit for each calendar day or partial calendar day the person is: (1) imprisoned for a crime; [or] (2) confined awaiting trial or sentencing[.]” I.C. § 35-50-6-3.1(b).

9.   In its motion, the State averred that on December 16, it “became aware of a home invasion and robbery that occurred in Knox County on December 15, 2021. Through the investigation [Jones] was identified as a suspect in the robbery.․ [Jones] was supposed to be in the Indiana Department of Correction[ ] by way of the plea agreement filed in these cases.” Appellant's App. Vol. 3 at 13.

10.   The motion is file-stamped, but the filing is not recorded in any of the chronological case summaries.

11.   Jones did not ask to have the hearing transcribed for this appeal. The State argues that Jones “has waived review by failing to provide an adequate record[,]” asserting that “[t]his Court does not know what, if any evidence was presented, what arguments were made by counsel, or what findings, if any, the trial court might have made at that ․ hearing.” Appellee's Br. at 16. The order itself indicates that no evidence was presented, and to the extent that Jones's arguments at the hearing were not based on his filings, they are waived for purposes of this appeal because we have no way of verifying either their substance or their existence. Finally, we presume that any findings that the trial court might have made at the hearing are reflected in its order.

12.   We agree with the State's assessment that “[t]he fact that [it] named its motion a ‘motion to correct error and motion to correct erroneous sentence’ is immaterial” and that “the ‘substance and content’ of motions controls over their ‘titles or labels.’ ” Appellee's Br. at 19 n.4 (quoting Good v. Clinton Circuit Ct., 503 N.E.2d 1218, 1220 (Ind. 1987)). The State notes that, “to the extent [its motion] was proffered as a motion to correct error, it was denied by the trial court as untimely; the court only granted the motion as a motion to correct erroneous sentence.” Id.

13.   Although neither Lotaki, Hardley, nor Robinson specifically considered whether Indiana Code Section 35-38-1-15 conflicts with what is now Criminal Rule 5.3(B), we presume that our Supreme Court is both aware of and familiar with its own procedural rules and would not hesitate to find a conflict if one actually existed.

14.   In Hardley, the State challenged the legality of the defendant's sentence in responding to his appeal and not via a motion to correct erroneous sentence. The Hardley Court observed,The purposes and procedures of the statutory framework for correcting an erroneous sentence support permitting the State's appellate claim of sentence illegality as a substantial equivalent to the motion identified in the statute. The statutory procedure does not compel a fact-finding hearing, nor does it specifically direct whether a motion to correct an erroneous sentence is to be filed with the trial court or in an appellate proceeding.905 N.E.2d at 403. Ultimately, the Court concluded that “[a]llowing the State to challenge an illegal sentence on appeal is within the legislative intendment of Indiana Code § 35-38-1-15, and such a challenge is the substantial equivalent of a statutory motion to correct erroneous sentence.” Id. Jones characterizes the Hardley Court's pronouncement on the applicability of the “facially erroneous” rule to sentencing challenges by the State as “dicta[.]” Appellant's Br. at 32. Although Hardley is not on all fours with this case, we find its reasoning sufficiently persuasive to follow it here.

15.   In Paul v. State, we made the following observations regarding Lotaki:In Lotaki our Supreme Court stated that a court should deduct credit time “from the aggregate total of the consecutive sentences, not from an individual sentence.” 4 N.E.3d at 657. When read out of context, this statement suggests that credit time should never be allocated to a particular sentence in the series. See id. Notably, however, Lotaki involved a scenario where the trial court seemingly deducted credit time from two sentences: the first and second sentences in the aggregate term. See id. On appeal, the Lotaki Court reversed, identifying a risk of impermissible “double credit.” See id. Having reviewed Lotaki and the pertinent cases cited therein, we think that the more accurate reading of Lotaki is that, when it comes to consecutive sentences, credit time should be applied only once. See id. Nonetheless, to the extent Lotaki could be read to require allocation of credit time to the aggregate term rather than any underlying sentence, we note that Lotaki was decided in early 2014, at which point Indiana law allowed for day-for-day good time credit regardless of the severity of the offense. See I.C. §§ 35-50-6-3(a), -4(a) (2013). Since then, our legislature substantially revised Indiana criminal law and eliminated the uniform credit time class. See I.C. § 35-50-6-3.1, -4 (2014). Under the new system, sentences could carry different rates for earning good time credit. Id. Because of this potential for differences, courts must allocate credit time to a specific sentence. Indeed, without knowing which sentence produced the good time credit, it would not be possible to accurately calculate the time remaining in the aggregate term. Put differently, one cannot calculate the distance traveled (i.e., the credit time earned) without knowing the speed of travel (i.e., the good time credit earning rate).177 N.E.3d 472, 476 n.3 (Ind. Ct. App. 2021). Because Jones was convicted of eight Level 6 felonies, which are in the same credit time class, the concerns expressed in Paul are inapplicable here.

16.   In his response to the State's motion to correct erroneous sentence, Jones suggested that “there might be an issue as to a meeting of the minds on the Plea Agreement” regarding credit time and that his “likely” remedy was to “rescind the Plea Agreement[.]” Appellant's App. Vol. 2 at 177. Jones may file a “motion to vacate judgment and withdraw the plea” pursuant to Indiana Code Section 35-35-1-4(c), which “shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies.” If such a motion succeeds, it will, as Jones acknowledged, “result[ ] in bringing back to life” all ten criminal causes that were disposed of via the plea agreement. Appellant's App. Vol. 2 at 177.

17.   Although Jones challenges the trial court's granting of the State's motion to correct erroneous sentence, he concedes that the abstracts of judgment issued after his guilty plea/sentencing hearing “provide[d] for many more months of incarceration.” Appellant's Br. at 35.

18.   During the hearing, the deputy prosecutor did not even mention Vanderburgh County and merely stated in passing that Jones “went to Illinois and began serving a sentence there.” Tr. Vol. 2 at 25. It is well settled that “[u]nsworn statements by counsel are not evidence.” Phillips v. State, 543 N.E.2d 646, 649 (Ind. Ct. App. 1989). Moreover, Jones never conceded that he was incarcerated in either Illinois or Vanderburgh County.

19.   The State asks us to “take judicial notice of the court records in the Vanderburgh County case.” Appellee's Br. at 32 n.8 (citing Ind. Evidence Rule 201). We must decline the State's invitation to retroactively fulfill its evidentiary burden. See Dolkey v. State, 750 N.E.2d 460, 462 (Ind. Ct. App. 2001) (“On appeal, judicial notice may not be used to fill evidentiary gaps.”) (quoting Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind. Ct. App. 1998), trans. denied). As for the Illinois incarceration, Jones observes that Evidence Rule 201 “is limited to ‘records of a court of this state.’ ” Reply Br. at 16 n.9. Furthermore, “[u]nless principles of claim preclusion apply, judicial notice should be limited to the fact of the record's existence, rather than to any facts found or alleged within the record of another case.” In re P.B., 199 N.E.3d 790, 797 (Ind. Ct. App. 2022) (quoting In re D.P., 72 N.E.3d 976, 983 (Ind. Ct. App. 2017)), trans. denied.

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.