APPELLANT PRO SE
: ATTORNEYS FOR APPELLEE:
TERRY DIEDRICH KAREN FREEMAN-WILSON
Bunkerhill, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
TERRY DIEDRICH, ) ) Appellant-Defendant, ) ) vs. ) No. 50A05-0009-PC-370 ) STATE OF INDIANA, ) ) Appellee. )
OPINION - FOR PUBLICATION
Id. According to Diedrich, while incarcerated in the IDOC on the unrelated
charges, he was also being detained as a result of the Marshall County
offense following service of the warrant on January 6, 1999. Thus, he
claims that he is entitled to full credit on each sentence.
In his petition, Diedrich relied primarily upon Muff v. State, 647 N.E.2d 681 (Ind. Ct. App. 1995), trans. denied. See Record at 15-16. In Muff, the defendant was arrested for forgery on July 15, 1993, and released the following day after posting bond. On August 24, 1993, the defendant was arrested on unrelated charges. As a result, the defendants bond on the forgery was revoked on September 8, 1993, while he was still incarcerated. The trial court noted that the sentences were to be served consecutively and concluded that the time spent incarcerated from September 8, 1993, through November 18, 1993, the date of his sentencing on the forgery, should be applied only against the sentence for forgery.
Upon appeal, the defendant argued that he should have received full credit on each sentence. In particular, he contended that with regard to the unrelated charges, he should have received credit for the entire time he was incarcerated following his arrest on August 24, even for the period after his bond was revoked until the sentencing on the forgery. The court on appeal agreed and awarded the defendant full credit on each sentence.
The holding in Muff has been criticized for failing to recognize that awarding full credit on each sentence, when the sentences must be served consecutively, enables a defendant to serve part of his sentences concurrently, a result the legislature could not have intended. In Stephens v. State, 735 N.E.2d 278 (Ind. Ct. App. 2000), trans. denied, for example, the court, although acknowledging that the defendant in Muff had indeed received a full credit toward each sentence, declined to follow that holding because of a subsequent Supreme Court decision, Corn v. State, 659 N.E.2d 554 (Ind. 1995). In particular, the Stephens court noted that the defendant in Corn, who was incarcerated on one offense while awaiting trial on a subsequent offense, unsuccessfully argued that he was entitled to a full credit on each offense for the same period of incarceration. Id. at 284. The court in Stephens further noted that our Supreme Court reasoned that allowing a double credit would be contrary to the legislative mandate that the two sentences be served consecutively. Id. Relying upon Corn, the Stephens court concluded that [t]o the extent that Muff permits credit for time served against each separate sentence rather than against the aggregate of the consecutive sentences, thereby resulting in double credit, we decline to follow it, and conclude that Corn impliedly overruled it. Id. at 284-85.
In this case, Diedrich too was required to serve his sentences consecutively because he committed the second offense while on bond. See Ind. Code § 35-50-1-2(d)(2)(B) (Burns Code Ed. Repl. 1998). Thus, for the reasons set forth in Stephens and Corn, we decline to follow Muff. We also note that the two cases relied upon by the court in Muff do not support the result reached in that case. The court in Muff relied primarily upon Dolan, 420 N.E.2d 1364 and Willoughby, 626 N.E.2d 601. To be sure, Dolan stands for the proposition that a defendant may be entitled to full credit when incarcerated on multiple offenses at the same time. See Dolan, 420 N.E.2d at 1373. However, the court made a critical distinction concerning mandatory consecutive sentences, suggesting that had the defendant in that case been required to serve his sentences consecutively, he would not have been entitled to full credit against each sentence. Id. at 1374. See also Bryant v. State, 446 N.E.2d 364, 366 (Ind. Ct. App. 1983) (noting that Dolan allows for an award of full credit on each concurrent sentence).
Willoughby also supports the proposition that a defendant may be entitled to full credit on each sentence. However, the court in that case was not faced with a situation in which the defendant was confined for multiple offenses at the same time. There, the defendant after pleading guilty, was ordered to serve an executed sentence and a term of probation in Marion County. Willoughby, 626 N.E.2d 601. Before completing his probation, the defendant was arrested on unrelated charges in Hamilton County. Although a notice of probation violation was filed in Marion County while the defendant was still incarcerated in Hamilton County, the warrant was not served upon the defendant until six months later when [the defendant] was returned to Marion County. Id. The Marion County court revoked the defendants probation, imposed the previously suspended sentence and awarded him credit for time spent incarcerated after the warrant was served until sentencing. The Willoughby court affirmed that decision upon appeal, rejecting the defendants contention that he should have received credit from the date the notice of probation violation was filed. While the court stated that the defendant was entitled to credit for time spent incarcerated under the warrant, because the defendant was transferred to Marion County on the day the warrant was served, the defendant was not incarcerated on multiple charges at the same time. Thus, the Willoughby court did not need to determine whether the defendant was entitled to full credit on each sentence.
For the reasons discussed, we hold that Diedrich was entitled to credit against only one of his sentences for the period of incarceration in question. While it is not clear from the record whether Diedrich received credit toward his Starke County offense for the period of incarceration in the IDOC, Diedrich does not claim that he did not. Further, based upon Diedrichs reliance upon Muff and his argument that he is entitled to full credit on each offense, it is reasonable to conclude that he did. See footnote Therefore, regardless of whether it could be argued that Diedrich spent time incarcerated in the IDOC under the Marshall County warrant, See footnote Diedrich is not entitled to a full credit on each offense. We find no error in the Marshall Superior Courts denial of Diedrichs petition.
The judgment is affirmed.
SHARPNACK, C.J., and MATHIAS, J., concur.