Opinion
23A-PC-934
05-30-2024
Kelvin Jerome Fuller, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT, PRO SE Kelvin Jerome Fuller Torrington, Wyoming ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge Trial Court Cause No. 45G01-2110-PC-23
APPELLANT, PRO SE Kelvin Jerome Fuller Torrington, Wyoming
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE.
Statement of the Case
[¶1] Kelvin Jerome Fuller ("Fuller") appeals the post-conviction court's partial denial of his petition for post-conviction relief. Fuller argues that the postconviction court erred by partially denying post-conviction relief on his claim for additional presentence jail credit time. Concluding that Fuller has failed to meet his burden of showing that the post-conviction court erred, we affirm the post-conviction court's judgment.
[¶2] We affirm. Issue Whether the post-conviction court erred by denying Fuller's petition for post-conviction relief. Facts
[¶3] On August 1, 2007, Fuller, who was serving an eighteen-year sentence ("original Indiana incarceration") in the Indiana Department of Correction ("the DOC"), escaped from the Westville Correctional Facility in LaPorte County, Indiana. Thereafter, the State charged Fuller, under cause number 46D02-0908-FC-42 ("LaPorte County case"), with Class C felony escape.
[¶4] The same day that Fuller escaped from the DOC, Fuller went to Lake County and committed criminal offenses that led to this underlying case now on appeal. Specifically, the State charged Fuller, under cause number 45G01-0708-FB-82 ("Lake County case"), with Count 1, Class B felony robbery; Count 2, Class C felony criminal confinement; Count 3, Class D felony strangulation; and Count 4, Class D felony intimidation. The Lake County trial court then issued an arrest warrant ("Lake County arrest warrant").
[¶5] The following day, on August 2, 2007, Fuller committed additional offenses in Madison County and Hamilton County. The State then charged Fuller, under cause numbers 48D03-0708-FB-231 and 48D03-0708-FD-232 ("Madison County cases"), with Class C felony robbery, two counts of Class C felony criminal confinement, Class A misdemeanor battery, and Class D felony theft. The State also charged Fuller, under cause number 29D02-0708-FC-89 ("Hamilton County case"), with Class C felony robbery and Class D felony theft. The Hamilton County and Madison County trial courts also issued arrest warrants.
[¶6] After committing these offenses in Indiana, Fuller fled to Wyoming where he robbed a bank. On August 8, 2007, Fuller was arrested in Montana and extradited to Wyoming. The federal government charged Fuller, under cause number 07-CR-252-J ("federal Wyoming case"), with felony bank robbery, felony transportation of a stolen vehicle, and transportation of stolen goods. In December 2008, Fuller pled guilty in the federal Wyoming case to felony bank robbery, and the federal district court sentenced Fuller to 188 months in federal prison. The federal district court also ordered that Fuller's sentence in his federal Wyoming case be served "consecutive to undischarged terms of imprisonment in the State of Indiana[.]" (App. Vol. 2 at 60).
[¶7] On January 9, 2009, Indiana officials received notice that Fuller had a new criminal charge in Wyoming state court. Specifically, the State of Wyoming had charged Fuller, under cause CR-2008-458 ("state Wyoming case"), with felony aggravated assault and battery. Thereafter, on January 13, 2009, the Lake County trial court issued a detainer and sought to initiate extradition proceedings.
[¶8] On April 13, 2009, Fuller was convicted of the felony aggravated assault and battery in his state Wyoming case, and the Wyoming trial court sentenced Fuller to nine to ten years. The Wyoming trial court also ordered that sentence to be served consecutively to his sentence in his federal Wyoming case.
[¶9] Subsequently, on May 15, 2009, Fuller was extradited to Indiana and returned to the DOC to serve out the remainder of his sentence on his original Indiana incarceration that he had been serving when he had escaped from the DOC in August 2007. In June 2009, while Fuller was incarcerated in the DOC, he was served with the Indiana arrest warrants. Specifically, on June 17, 2009, Fuller was served with the Lake County arrest warrant while he was incarcerated in the DOC.
[¶10] While Fuller was incarcerated in the DOC, some of his Indiana cases were resolved. In April 2010, Fuller pled guilty to Class C felony escape in his LaPorte County case. The LaPorte County trial court imposed a four (4) year sentence.
[¶11] In May 2011, Fuller pled guilty to Class C felony robbery in his Hamilton County case, and the Hamilton County trial court imposed a four (4) year sentence. The Hamilton County trial court awarded Fuller 1,378 days of jail presentence credit for the time period from August 8, 2007 (the date that the Hamilton County trial court had issued an arrest warrant) to May 16, 2011 (when the Hamilton County trial court sentenced Fuller in his Hamilton County case).
[¶12] In June 2012, Fuller filed, in this underlying Lake County case, a pro se motion to dismiss pursuant to Indiana Criminal Rule 4. At that time, the Lake County trial court was unaware that Fuller had been transported back to Indiana. The DOC then notified the Lake County trial court that Fuller was incarcerated in the DOC. The Lake County trial court denied Fuller's motion to dismiss. The Lake County trial court then set an initial hearing and issued a transport order to transport Fuller from the DOC to Lake County Jail for his initial hearing. On August 14, 2012, while Fuller was in the Lake County Jail, he was served with the Lake County arrest warrant. After Fuller's initial hearing, he returned to the DOC. Fuller subsequently filed an interlocutory appeal of the Lake County trial court's denial of his motion to dismiss, and our Court affirmed the Lake County trial court's judgment.
Between August 2012 and April 2013, the Lake County trial court had Fuller transported from the DOC prison to the Lake County Jail for various hearings and then returned Fuller back to the DOC.
[¶13] In September 2012, Fuller pled guilty to Class C felony robbery and Class D felony theft in his two Madison County cases. The Madison County trial court imposed a four (4) year sentence in one case and a three (3) year sentence in the other case, and it ordered these sentences to be served concurrently to each other and to the sentence in Fuller's LaPorte County case.
[¶14] In September 2013, the DOC notified the Lake County trial court that Fuller's release date from the DOC for his original Indiana incarceration was October 20, 2013. On October 10, 2013, the U.S. Marshall's Service took custody of Fuller back into federal prison to serve his sentence on his federal Wyoming case.
[¶15] On October 30, 2013, the Lake County trial court issued a warrant to serve as a detainer on Fuller. In August 2017, the Lake County trial court learned that Fuller was incarcerated in a federal prison in Arizona at that time, and the trial court filed a detainer on Fuller.
[¶16] In July 2020, Fuller filed, with the Lake County trial court, an interstate agreement on the detainer to notify the court that he was then incarcerated in the federal prison in Terre Haute and to request that his Lake County case be set for disposition. On November 2, 2020, a Lake County warrant was served on Fuller, and he thereafter returned to the Lake County Jail for disposition on his Lake County case.
[¶17] On December 21, 2020, Fuller entered into a plea agreement with the State. Fuller agreed to plead guilty to a lesser charge of Class C felony robbery, and the State agreed to amend the charging information to add that charge and to dismiss the other four charges. The parties agreed that Fuller would receive a four-year sentence.
[¶18] Prior to sentencing, Fuller filed a sentencing memorandum and requested that the trial court award him with presentence jail credit time from January 9, 2009 (when Fuller was served with the Lake County warrant while incarcerated in Wyoming) to October 13, 2013 (when he returned to federal custody to serve his sentence in his federal Wyoming case). Thus, Fuller requested 1,738 days of presentence jail credit time.
[¶19] The presentence investigation report ("PSI"), which was filed on January 7, 2021, indicated that Fuller's arrest date in the Lake County case was on August 14, 2012. The PSI also indicated that, at that time in 2021, Fuller was incarcerated in federal prison and that his time spent in the Lake County Jail totaled 119 days. Specifically, the PSI indicated that Fuller had been incarcerated in the Lake County Jail on the following dates: August 14, 2012 to August 27, 2012; October 11, 2012 to October 18, 2012; December 31, 2012 to January 10, 2013; February 19, 2013 to February 25, 2013; April 22, 2013 to April 29, 2013; and November 02, 2020 to January 11, 2021.
We note that the trial court had initially set Fuller's sentencing hearing for January 11, 2021. During that January 11 hearing, Fuller requested that the trial court reset the sentencing hearing until January 13, 2021, and the trial court granted Fuller's request. Additionally, we note that our calculation of days using the dates contained in the PSI results in a total of 113 days. Nevertheless, the trial court gave Fuller 119 days. Neither party on appeal challenges the trial court's calculation and application of 119 days. Therefore, we will not further address that calculation.
[¶20] Thereafter, on January 13, 2021, the trial court held Fuller's sentencing hearing. The trial court sentenced Fuller, pursuant to his plea agreement, to four (4) years in the DOC and ordered that sentence to be served consecutively to Fuller's federal sentence that he was serving at that time. The trial court denied Fuller's request for additional jail credit time as argued in his sentencing memorandum. The trial court pointed out that when Fuller had returned to Indiana, he was incarcerated in the DOC to finish his sentence from his original Indiana incarceration. The trial court concluded that Fuller was to receive presentence jail credit time for the dates, as set forth in the PSI, when he was incarcerated in the Lake County Jail for various hearings. Specifically, the trial court ordered that Fuller was to "receive credit for 119 days spent in confinement as a result of this charge, plus 119 days of good time credit as provided by law, for a total of 238 days credit." (App. Vol. 2 at 72). After Fuller's sentencing hearing, he was then returned to Wyoming to continue serving his sentence in his federal Wyoming case.
[¶21] On June 2, 2021, Fuller completed his sentence in his federal Wyoming case. Fuller was then transferred to the Wyoming Department of Correction to serve his consecutive sentence in his state Wyoming case.
[¶22] Shortly thereafter, in July 2021, after receiving notification that Fuller was first serving his sentence in his state Wyoming case, the Lake County trial court amended the sentencing order ("July 2021 amended sentencing order") and ordered that Fuller's sentence in his Lake County case be served consecutively to his sentence in his state Wyoming case. The trial court left the 119 days of presentence jail credit time in effect.
[¶23] In October 2021, Fuller filed a pro se post-conviction petition and raised a claim that he was entitled to additional presentence jail credit time in his Lake County case. In December 2021, Fuller withdrew his post-conviction petition.
[¶24] Fuller then attempted to initiate a direct appeal of the trial court's July 2021 amended sentencing order by filing a notice of appeal in January 2022. In Fuller's appellate brief, he raised an argument relating to denial of additional presentence jail credit time when the Lake County trial court had sentenced him. In April 2022, the State filed a motion to dismiss Fuller's direct appeal. The State pointed out that Fuller was appealing the trial court's July 2021 amended sentencing order but that his notice of appeal was untimely. The State noted that Fuller, nevertheless, had a remedy to challenge the sentencing order and that he could file a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2. In May 2022, our Court dismissed Fuller's appeal without prejudice.
[¶25] Fuller did not file a petition for permission to file a belated notice of appeal. Instead, in June 2022, Fuller re-activated his original post-conviction petition. He then amended his post-conviction petition in July 2022. The post- conviction court ordered the case to proceed by affidavit. Fuller argued that he was entitled to additional presentence jail credit time under INDIANA CODE § 35-50-6-3 for two different sets of dates that included time he was incarcerated in Indiana. Specifically, he argued that he should have received presentence jail credit time from June 17, 2009 (the date he was first served with an arrest warrant while incarcerated in the Indiana DOC) to October 10, 2013 (the date that he was returned to federal custody), which totaled 1,576 days. He also argued that he was entitled to presentence jail credit time from November 2, 2020 (the date that he returned to Indiana on the Interstate Agreement on Detainers to resolve his Lake County case) to January 13, 2021 (the date of his sentencing hearing on his Lake County case), which totaled seventy-two days.
Fuller did not include the State's exhibits that it submitted to the post-conviction court in support of its argument in the post-conviction proceeding.
[¶26] In April 2023, the post-conviction court issued an order and granted Fuller's petition for post-conviction relief in part and denied it in part. Specifically, the post-conviction court concluded that Fuller was entitled to two additional days of presentence jail credit time for January 12 and 13, 2021. The post-conviction court noted that the trial court had already awarded Fuller with presentence jail credit time from November 2, 2020 to January 11, 2021 but that Fuller's sentencing hearing had been held on January 13, 2021, resulting in the two additional days of presentence jail credit time. The post-conviction court denied Fuller's request for any other additional presentence jail credit time.[
The post-conviction court concluded, in part, that Fuller's claim for the additional presentence jail credit time was waived because Fuller had not filed a direct appeal of the denial of that requested credit time. On appeal, Fuller contends that, pursuant to this Court's opinion in Weaver v. State, 725 N.E.2d 945 (Ind.Ct.App. 2000), he was allowed to raise his credit time claim. In Weaver, our Court explained that "a defendant who has not been awarded proper credit time under Indiana Code section 35-50-6-3 may seek review of this error at any time, because a defendant should not and cannot be incarcerated for any duration longer than that allowed by law." Weaver, 725 N.E.2d at 947. The State does not dispute the applicability of Weaver, and it addresses Fuller's credit time claim on the merits. We too will address and review Fuller's claim. See Williams v. State, 759 N.E.2d 661, 663, n.4 (Ind.Ct.App. 2001) (relying on Weaver and explaining that our Court would address a petitioner's credit time claim in his post-conviction appeal despite waiver based on his failure to raise the issue on direct appeal).
[¶27] Fuller now appeals. Decision
At the time of this appeal, Fuller is incarcerated in a Wyoming state prison and serving the sentence in his state Wyoming case.
[¶28] Fuller contends that the post-conviction court erred by denying his petition for post-conviction relief. "[P]ost-conviction proceedings do not grant a petitioner a 'super-appeal' but are limited to those issues available under the Indiana PostConviction Rules." Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App. 2010), trans. denied. "In post-conviction proceedings, the petitioner bears the burden of establishing his claims by a preponderance of the evidence." Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021), reh'g denied. "Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Id. (cleaned up).
[¶29] At the outset, we note that Fuller has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. Thus, pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id. "We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood." Barrett v. State, 837 N.E.2d 1022, 1030 (Ind.Ct.App. 2005), trans. denied.
[¶30] Fuller argues that the post-conviction court erred by denying post-conviction relief on his claim for additional presentence jail credit time in his Lake County case. Fuller contends that the Lake County trial court should have given him additional presentence jail credit time for the period between May 15, 2009 (when he was returned to Indiana from Wyoming) until October 10, 2013 (when he left Indiana and returned to federal custody to serve his sentence in his federal Wyoming case). In other words, Fuller argues that he should have received presentence jail credit time in his Lake County case for all the time that he spent incarcerated in Indiana on any of his Indiana cases. We disagree.
[¶31] INDIANA CODE § 35-50-6-3, which applies to a person who committed an offense prior to July 1, 2014, generally provides that a person is entitled to one day of credit time for each day that he is confined awaiting trial or sentencing. See I.C. § 35-50-6-3(b). "Because credit time is a matter of statutory right, trial courts do not have discretion in awarding or denying such credit." Harding v. State, 27 N.E.3d 330, 331-32 (Ind.Ct.App. 2015). The burden is on the appellant to show that the trial court erred in its application of credit time. Id. at 332.
[¶32] When determining whether a defendant is entitled to pretrial or presentencing credit time, we must determine whether the defendant was in pretrial confinement and whether that confinement was a result of the criminal charge for which a sentence is being imposed. Alvarez v. State, 147 N.E.3d 374, 377 (Ind.Ct.App. 2020), trans. denied. Stated differently, "[c]redit is to be applied for time spent in confinement that is the result of the charge for which the defendant is being sentenced." Bischoff v. State, 704 N.E.2d 129, 130 (Ind.Ct.App. 1998), trans. denied. "It has been observed on several occasions that we should avoid construing the credit time statutes as permitting a defendant to claim 'double or extra credit' for pre-sentencing confinement." Payne v. State, 838 N.E.2d 503, 510 (Ind.Ct.App. 2005) (citing Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995)), trans. denied.
[¶33] Given the specific facts of this case and the record before us on appeal, we conclude that Fuller was not entitled to presentence jail credit time for the dates he seeks. Fuller was incarcerated in Indiana from May 15, 2009 to October 10, 2013, but the record before us indicates that Fuller was returned to the Indiana DOC during that time period to serve the remainder of his sentence from his original Indiana incarceration. During that time period, the Hamilton, LaPorte, and Madison trial courts resolved their pending cases against Fuller, sentenced him in those cases, and awarded him with credit time. Fuller's Lake County case was not resolved during that time period, but the Lake County trial court did transport Fuller to the Lake County Jail on various occasions for hearings between August 2012 and April 2013, as set out in Fuller's PSI. When the Lake County trial court sentenced Fuller on his Lake County case in January 2021, it gave him presentence jail credit time for the days that he spent in Lake County Jail during that period.
[¶34] Because the record reveals that Fuller's incarceration in Indiana from May 15, 2009 to October 10, 2013 was a result of being returned to serve the remainder of his prior unrelated sentence from his original Indiana incarceration, and not a result of the Lake County case for which he was sentenced in January 2021, we conclude that he was not entitled to the requested additional presentence jail credit time. See Bischoff, 704 N.E.2d at 130 (affirming the denial of credit time for presentence incarceration where the defendant was incarcerated for an unrelated offense while the case at issue was pending). See also Stephens v. State, 735 N.E.2d 278, 285 (Ind.Ct.App. 2000) (explaining that a defendant was not entitled to presentence jail credit time for the time he was incarcerated on a prior unrelated case), trans. denied. Accordingly, we affirm the post-conviction court's denial of Fuller's petition for post-conviction relief.
[¶35] Affirmed.
Tavitas, J., and Foley, J., concur.