APPELLANT PRO SE:
COURT OF APPEALS OF INDIANA
BRANDON C. WILLIAMS, PRO SE
Michigan City, Indiana
BRANDON C. WILLIAMS, )
vs. ) No. 71A03-0012-PC-472
STATE OF INDIANA, )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge Presiding
Cause No. 71D01-9804-CF-157
December 12, 2001
OPINION - FOR PUBLICATION
Brandon C. Williams (Williams) was convicted of assisting a criminal,
a Class C
felony, in St. Joseph Superior Court. The trial court sentenced him to
eight years and gave him pre-sentence jail credit of 487 days. The
sentence was then suspended, and Williams was placed on probation for eight years.
As a condition of probation, Williams was ordered to serve seven years
in the Department of Correction. The trial court did not give him
credit for the 487 days he was in jail prior to his sentencing.
Williams filed a petition for post-conviction relief, which was denied. Williams
appeals that denial raising one issue: whether the trial court erred when it
failed to give Williams credit for pre-sentence jail time of 487 days.
We agree with Williams contentions and reverse and remand.
Facts and Procedural History
On April 22, 1998, Williams and Grandon Reed (Reed) went to Archies Rib
Joint in St. Joseph County, Indiana, with the intention of committing a robbery.
Williams acted as the lookout, while Reed went into Archies to commit
the robbery. R. at 45-46. Williams also held the door open
so that Reed could make a getaway. R. at 45. During
the robbery, Reed shot and killed Brian Cichocki. Williams purchased the gun
that Reed used to kill Mr. Cichocki and was responsible for disposing of
the gun after the commission of the robbery and murder. R. at
On April 24, 1998, Williams was charged with two counts of robbery, Class
B felonies, and one count of felony murder. The State filed a
fourth count, assisting a criminal, as a Class C felony, against Williams on
August 20, 1998. Williams pleaded guilty to assisting a criminal, a Class
C felony, and the remaining charges were dismissed. The trial court sentenced
Williams to eight years and gave him credit for pre-sentence jail time of
The trial court then suspended that sentence and placed Williams
on probation for eight years. As a condition of his probation, Williams
was ordered to serve seven years in the Department of Correction. The
trial court did not give him credit for the 487 days he spent
in jail prior to his sentencing.
Williams failed to perfect a direct appeal of his sentence, but did file
a petition for post-conviction relief on October 23, 2000. In his petition
for post-conviction relief, Williams alleged that his sentence was excessive and illegal because
he did not receive credit for pre-sentence jail time served when he was
sentenced to serve seven years as a condition of his probation. R.
at 11. On November 15, 2000, the post-conviction court denied Williams petition
for post-conviction relief. Williams appeals.
Standard of Review
Post-conviction procedures do not afford defendants the opportunity for a "super-appeal."
v. State, 716 N.E.2d 906, 911 (Ind. 1999). Rather, they create a
narrow remedy for subsequent collateral challenges to convictions. Id. Petitioners must
establish their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). To prevail on appeal, the petitioner must show that
the evidence is without conflict and leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. It is only where the
evidence is without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion, that the decision will be disturbed as
being contrary to law. Mahone v. State, 742 N.E.2d 982, 984 (Ind.
Ct. App. 2001), trans. denied (citations omitted).
Discussion and Decision
Williams argues that the trial court erred when it failed to give him
credit for pre-sentence jail time of 487 days against his period of probation.
The facts of this case are nearly identical to the facts in
Sutton v. State, 562 N.E.2d 1310 (Ind. Ct. App. 1990), trans. denied.
In Sutton, the defendant was convicted of battery, a Class C felony, and
sentenced to eight years with credit given for the 352 days he was
incarcerated prior to trial. Id. at 1311. The trial court then
suspended the sentence and placed the defendant on probation for eight years.
Id. The defendant was ordered to serve seven years in prison as
a condition of probation, and the trial court stated, the time served of
352 days shall not apply to the term of imprisonment ordered as a
condition of probation. Id. at 1311-12.
A panel of this court held that the trial court did not err
when it sentenced the defendant, stating:
[n]o statute or other law required the court to also credit the time
served before trial towards the probation it ordered for Defendant. . . .
It is not our job to judicially legislate new law on this
point by imposing such a requirement on trial courts. That is a
matter for the Legislature. We also note that if there were a
statute requiring that such credit be given towards probation, then the overall penalty
imposed in this case would exceed the statutorily prescribed limits for the offense
in question, and would be an illegal sentence.
Id. at 1313 (citations omitted). However, Judge Baker dissented arguing that a
trial court cannot suspend a sentence that has already been executed. Id.
at 1314. Judge Baker noted that Sutton received Class I credit for
the 352 days of incarceration prior to trial, for a total of 704
days credit; therefore, Sutton was thus left with six years and twenty six
days on his maximum eight-year sentence. Id. Judge Baker argued that
the trial court could not suspend more than six years and twenty-six days,
because a portion of a sentence that has already been executed cannot be
suspended. Id. Judge Baker concluded that because Sutton did not receive
credit for the time he had already spent in jail, he received a
sentence in excess of the statutory maximum sentence.
We disagree with the conclusion reached by the majority in
Sutton and decline
to follow it here. Indiana Code section 35-50-6-3 provides that a person
assigned to Class I [credit time] earns one (1) day of credit time
for each day he is imprisoned for a crime or confined awaiting trial
or sentencing. Trial courts do not have discretion in granting or denying
pre-sentence jail credit time, as it is not a matter of judicial discretion,
but of statutory right. Weaver v. State, 725 N.E.2d 945, 947-48 (Ind.
Ct. App. 2000). Pre-sentence imprisonment is a form of punishment and credit
time statutes, as remedial legislation, should be liberally construed in favor of those
benefited by the statute. Id. (citing Nutt v. State, 451 N.E.2d 342,
344 (Ind. Ct. App. 1983)).
We agree with Judge Bakers argument in
Sutton that this sentencing scheme exceeds
the maximum sentence permitted by Indiana Code section 35-50-2-6. A similar set
of circumstances was discussed by this court in Albright v. State, 708 N.E.2d
15, 16 (Ind. Ct. App. 1999). In that case, the defendant was
charged with two counts of operating while intoxicated, both Class A misdemeanors, and
was incarcerated for 288 days while awaiting trial. He was convicted of
both counts and sentenced to consecutive terms of one year for each offense;
however, the trial court reduced the executed portion of the defendants sentence to
time served, then placed him on probation for one full year for each
offense. Id. The defendant appealed arguing that the sentence exceeded the
maximum sentence allowed by statute. Id.
We held that the trial court erred because its sentencing order imposed a
term of probation that caused the defendant to serve more than one year
of combined imprisonment and probation for his convictions. Id. Because the
defendant was incarcerated for 288 days, he earned credit time of 576 days;
therefore, we held that because he served at least 365 days, his first
one-year sentence had been completed, and no probationary period could be imposed for
the first conviction. Id. This court also held that the trial
court erred when it imposed a full year of probation for the second
conviction because the defendant had served 211 days that applied to the second
In this case, Williams served 487 days in jail prior to his sentencing;
therefore, he is entitled to credit time of 974 days, or two years
and 244 days. Williams eight-year sentence was suspended and he was placed
on probation for eight years. The trial courts failure to give him
credit time has the effect of actually giving Williams a sentence of 10
years and 244 days. This exceeds the eight-year statutory maximum for a
C felony conviction and is an illegal sentence.
See Ind. Code §
35-50-2-6 (1998); Weaver, 725 N.E.2d at 948.
The effect of the trial courts failure to give Williams credit for pre-sentence
jail time is that Williams sentence exceeds the statutory maximum and is an
illegal sentence. For all these reasons, we reduce Williams aggregate sentence of
eight years probation by 974 days; therefore, Williams is ordered to serve five
years and 121 days in the Department of Correction as a condition of
Reversed and remanded for credit consistent with this opinion.
DARDEN, J., and VAIDIK, J., concur.
See Ind. Code § 35-44-3-2 (1998).
The trial court noted that Williams would have actually received 974 days
of credit because a person who is incarcerated awaiting trial and sentencing earns
one day of credit time for each day served.
See Ind. Code
§ 35-50-6-3 (1998).
Williams filed his Appellant brief pro se, and the State did not
file an Appellee Brief in this case.
We note that Williams did not file a direct appeal after sentencing,
but has raised this issue for the first time in his petition for
post-conviction relief. The purpose of post-conviction relief is not to provide a
substitute for direct appeal, but to provide a means for raising issues not
known or available to the defendant at the time of the original appeal.
Williams v. State, 748 N.E.2d 887, 890 (Ind. Ct. App. 2001).
If an issue was available on direct appeal but not litigated, it is
waived. Id. at 891. In addition, since the trial judge in
this case is the same judge who sentenced the defendant in Sutton v.
State, 562 N.E.2d 1310 (Ind. Ct. App. 1990), trans. denied., and the sentence
in Sutton was affirmed, Williams could have reasonably believed that a direct appeal
of his sentence would be futile. In Weaver v. State, 725 N.E.2d
945 (Ind. Ct. App. 2000), we stated 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. Id.
The maximum sentence for a C felony is eight years.
Ind. Code § 35-50-2-6 (1998). Under Judge Bakers analysis, because Sutton served
352 days in jail and received Class I credit for a total of
704 days, which was not credited to his eight years of probation, Suttons
sentence in effect became nearly 10 years; therefore, his sentence was illegal.
A sentence in excess of the penalty mandated by our General Assembly through
its applicable statute is an illegal sentence. Id. (citing Golden v. State,
553 N.E.2d 1219, 1222 (Ind. Ct. App. 1990)).
See Ind. Code § 35-50-6-3.