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Lack of evidence fails man’s drug, credit time appeal

September 7, 2018

The Indiana Court of Appeals affirmed a man’s sentence was not inappropriate in light of his character and found the trial court didn’t err in calculating his credit time. The panel found the man failed to provide compelling evidence for both arguments.

Charles Moon was convicted of Level 4 felony dealing in cocaine and Level 6 felony resisting law enforcement after he sold cocaine to a confidential informant for the Kokomo Police Department on four separate occasions and failed to stop his mo-ped when officers attempted to arrest him on a warrant.

Moon, who admitted that he had used illegal substances every day since he was 13 years old, was sentenced to 2½ years suspended to supervised probation for his resisting law enforcement conviction and 12 years for his dealing in cocaine conviction. Moon requested the trial court recommend him for purposeful incarceration, but he was instead ordered to complete the Howard County Drug and Alcohol Program as a condition of his probation for both convictions.

The Howard Superior Court gave Moon credit for 245 actual days served while awaiting his disposition.

On appeal, Moon contended the trial court erred when it calculated the number of days he spent in confinement before sentencing. Without explaining his calculations, Moon asserted that he spent 246 days in jail, not 245 days. The appellate court noted that Moon included the date of his sentencing in the calculation, but cited Indiana Code Section 35-38-3-2(d) (2018), which states that the “term of imprisonment begins on the date sentence is imposed[.]”

“Accordingly, the date the trial court sentenced Moon was the first day of his sentence and, therefore, cannot be included when counting the number of days he actually served prior to sentencing,” Judge Edward Najam wrote for the Friday opinion. “The trial court did not err when it awarded Moon credit for 245 days actually served.”

Additionally, Moon asserted that the trial court “arbitrarily” erred when it chose to calculate his credit time based on the Level 4 felony instead of the Level 6 felony, denying him credit time of 164 days.

But the appellate court found that based on Moon’s conviction of a Level 4 felony and his corresponding assignment to credit Class B, the trial court correctly awarded Moon 82 days of good time credit.

“Indiana Code Section 35-50-6-4(h) does not state that a trial court may choose which offense it uses as a basis for calculating credit time,” Najam continued.

“Instead, the statute explicitly states that a person earns credit time pursuant to the credit class to which he is assigned, which, in turn, is based on the most serious offense with which the person is convicted. Here, the most serious offense with which Moon was charged in both cause numbers was a Level 4 felony.”

Finally, Moon asserted that his sentence was inappropriate in light of the nature of the offense and his character because the trial court declined to recommend him for purposeful incarceration. In contending that, because he is a chemically addicted offender with a “long history of substance abuse” and because the circumstances of the crimes were not “more heinous” than the elements required to prove the charges, Moon argued the appellate court should remand his case, compel the trial court to modify his sentence and recommend him for purposeful incarceration.

However, the appellate court found that despite his lengthy criminal history, previous incarcerations and offered opportunity to address his substance-abuse issues after completing his sentence, Moon continued to engage in unlawful behavior.

Therefore, the appellate court found Moon had not met his burden of convincing them that his sentence was inappropriate in light of his character.

Judge Terry Crone concurred with the appellate court’s decisions on both counts, but disagreed in a separate opinion that Rule 7(B) “plainly requires ‘the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.’”

The case is Charles A. Moon, Jr. v. State of Indiana, 18A-CR-879.

 

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