MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Apr 09 2020, 10:54 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John M. Ross,                                             April 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1725
        v.                                                Appeal from the Ohio Circuit
                                                          Court
State of Indiana,                                         The Honorable James D.
Appellee-Plaintiff.                                       Humphrey, Judge
                                                          Trial Court Cause No.
                                                          58C01-1802-F2-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020                 Page 1 of 4
                                        Statement of the Case
[1]   John M. Ross appeals the trial court’s calculation of his credit time after Ross

      pleaded guilty to conspiracy to dealing in methamphetamine, as a Level 4

      felony; possession of methamphetamine, as a Level 5 felony; and to being a

      habitual offender. We affirm.


                                  Facts and Procedural History
[2]   On May 16, 2019, Ross entered into a plea agreement with the State in which

      Ross agreed to plead guilty to conspiracy to dealing in methamphetamine, as a

      Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to

      being a habitual offender. Pursuant to the plea agreement, Ross was entitled to

      “receive credit for time served as well as good time for the same.” Appellant’s

      App. Vol. 3 at 138. He also “waive[d] the right to appeal any sentence

      imposed . . . so long as the Court sentences [him] within the terms of this plea

      agreement.” Id.


[3]   At his ensuing sentencing hearing, the court noted that the Presentence

      Investigation Report (“PSI”) stated: “The Defendant has been serving a

      Probation Violation sentence” in another cause number, although the violation,

      which Ross admitted, was based on the instant offenses, and Ross was “entitled

      to [zero] days” of credit “on his current cause.” Id. at 96. Ross responded that,

      because his agreement stated that he “shall receive credit for time served, as

      well as good time for the same,” even though “these matters must run

      consecutively, by operation of law, . . . it would be appropriate for [Ross] to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020   Page 2 of 4
      receive credit for the time he was in jail on both this case and the probation

      violation . . . .” Tr. Vol. 2 at 19-20. The court asked Ross’s counsel, “So, is

      your client asking for double credit?” Id. at 20. Ross’s counsel responded,

      “Yes.” Id. Thereafter, the trial court sentenced Ross with zero days credit

      time. This appeal ensued.


                                       Discussion and Decision
[4]   Ross appeals the trial court’s award of zero days of credit time. “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). However, it is the appellant’s burden to show that the trial

      court’s calculation of credit time is erroneous. Id.


[5]   Ross’s entire argument on appeal is that his plea agreement unambiguously

      entitled him to an award of credit time in the instant cause equivalent to the

      award of credit time he received while serving his probation violation in a

      separate cause. 1 We cannot agree. Ross’s plea agreement stated that he “shall

      receive credit for time served as well as good time for the same.” Appellant’s

      App. Vol. 3 at 138. That language unambiguously entitled him only to any

      credit time he had properly accrued “for time served” on the instant cause,

      which likewise required the court to consider extrinsic evidence, namely, the




      1
        The State asserts that Ross waived his right to appeal his sentence in his plea agreement. But Ross’s waiver
      was limited to only if the court sentenced him in accordance with the terms of the plea, and his argument on
      appeal is that that did not happen. As such, Ross’s argument is properly before us.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020                      Page 3 of 4
      PSI, to determine that time. Nothing in the plea agreement’s language entitled

      Ross to a particular amount of credit time or to credit time to which he would

      not otherwise have been entitled.


[6]   Ross makes no argument on appeal that he was entitled by statute to receive

      credit time in the instant cause in addition to the credit time attributed to his

      probation violation. His only argument is that his plea agreement was intended

      to require the court to double count his credit time. Again, we reject that

      argument and, as such, we affirm the trial court’s calculation of Ross’s credit

      time pursuant to his plea agreement.


[7]   Affirmed.


      Kirsch, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020   Page 4 of 4
