Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
JAMES D. CRUM
LAURA E. TRULOCK
COOTS, HENKE & WHEELER, P.C.
Attorney General of Indiana
MATTHEW D. FISHER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
NICK C. BIGSBY,
STATE OF INDIANA,
APPEAL FROM THE HAMILTON CIRCUIT COURT
The Honorable Judith S. Proffitt, Judge
Cause No. 29C01-9609-DF-233
May 22, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
Nick C. Bigsby appeals the denial of his petition for post-conviction relief contending
that the trial court erred in determining that he was not entitled to credit time for the days he
was “held” pursuant to a Hamilton County arrest warrant for a probation violation, while
simultaneously being detained in the Marion County Jail awaiting trial on unrelated charges.1
FACTS AND PROCEDURAL HISTORY
On February 13, 2003, the Hamilton Circuit Court sentenced Bigsby, in connection
with his guilty plea for Class D felony theft, 2 to 180 days executed and 847 days suspended
to probation. Appellant’s App. at 3. Approximately nine months later, the State filed a notice
of probation violation in Hamilton Circuit Court, in part based on Bigsby’s arrest in Marion
County on charges of burglary and theft. The Hamilton Circuit Court issued an arrest
warrant for Bigsby on November 17, 2003, “which apparently acted as a hold on him until
his Marion County matters were resolved.” 3 Appellee’s Br. at 2.
On August 23, 2005, while on probation for his Hamilton County conviction, Bigsby
pled guilty in Marion Circuit Court to theft as a Class D felony and was sentenced to two
years in prison. Appellant’s App. at 45. The Marion Circuit Court granted Bigsby 317 days
While Bigsby was not physically detained by the Hamilton County arrest warrant, the warrant acted
as a hold on him until the Marion County charges were resolved. Appellee’s Br. at 12
See IC 35-43-4-2.
When the Hamilton Circuit Court issued the November 17, 2003 arrest warrant, Bigsby had already
served 180 days in prison and approximately 128 days on probation. Pursuant to IC 35-38-2-3(c), the
issuance of a summons or warrant tolls the period of probation until the final determination of the charge. As
such, having served 128 days of his 847-day probation, Bigsby had approximately 719 days of probation
of credit for his pre-trial detention. Id. at 46. On November 2, 2005, while still on probation
for his Hamilton County conviction, Bigsby pled guilty to an unrelated Class D felony theft
in Marion County and was sentenced to two years, with one year executed and one year
suspended to probation. Id. at 50-54. The Marion Circuit Court granted Bigsby seventy-six
days of credit for his pre-trial detention. Id. at 54.
On February 6, 2006, Bigsby was returned to the Hamilton County Jail for a hearing
on the notice of probation violation filed in 2003. During the evidentiary hearing, Bigsby
admitted that he had violated terms of his probation, but argued that he should get credit for
the 393 (317 plus 76) days that he had been detained in Marion County awaiting trial on the
two unrelated offenses and concurrently on “hold” in this case. Probation Revocation Tr. at
3-9. The Hamilton Circuit Court revoked Bigsby’s probation, denied his request for credit
time, and ordered him to serve 545 days in the Department of Correction. 4
On February 14, 2006, Bigsby filed a motion to correct erroneous sentence. One week
later, the trial court issued an order denying Bigsby’s claim for the 393 days of credit.
Bigsby filed a pro se notice of appeal and, on July 21, 2006, Bigsby filed a petition for postconviction relief. The Hamilton Circuit Court denied Bigsby’s petition, and he now appeals.
DISCUSSION AND DECISION
A petition for post conviction relief is the proper vehicle for the review of credit time
determinations when immediate release is not the relief sought. McGee v. State, 790 N.E.2d
1067, 1069 (Ind. Ct. App. 2003), trans. denied. In order to obtain post-conviction relief,
As noted in the previous footnote, because the probation had tolled when the warrant was issued,
Bigsby could have been facing a sentence of almost 719 days. See IC 35-38-2-3.
Bigsby must establish his claims by a preponderance of the evidence. Peace v. State, 736
N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied (2001). Because the post-conviction
court was unpersuaded as to the merits of Bigsby’s claims, Bigsby must convince us that the
evidence leads unmistakably to reversal. Id. We consider only the evidence that supports the
post-conviction court’s decision along with any reasonable inferences from that evidence. Id.
Bigsby contends that, because the Hamilton County arrest warrant placed a hold on
him while he was also being held in the Marion County Jail awaiting trial for unrelated
charges, he is entitled to credit time in his Hamilton County case for the 393 days he spent in
the Marion County Jail. Indiana inmates imprisoned awaiting trial or sentencing earn Class I
credit. State v. Eckhardt, 687 N.E.2d 374, 376 (Ind. Ct. App. 1997). IC 35-50-6-3(a)
provides, “A person assigned to Class I earns one (1) day of credit time for each day he is
imprisoned for a crime or confined awaiting trial or sentencing.” IC 35-50-6-3(a). “[P]resentence jail time credit is a matter of statutory right, not a matter of judicial discretion.”
Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000).
Bigsby’s statutory right to credit time is not unlimited, however. As we stated in
Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied,
It is well-settled that where a person incarcerated awaiting trial on more than
one charge is sentenced to concurrent terms for the separate crimes, IC 35-506-3 entitles him to receive credit time applied against each separate term.
However, where he receives consecutive terms he is only allowed credit time
against the total or aggregate of the terms.
The Marion County crimes were committed while Bigsby was on probation for the Hamilton
County theft; therefore, the sentences had to run consecutively to each other. See IC 35-501-2. 5 Bigsby was given credit for pre-trial detention for each of the Marion County
convictions. A defendant sentenced to consecutive terms may receive credit only against the
aggregate sentence. Peace, 736 N.E.2d at 1267; Stephens, 735 N.E.2d at 284. That is what
the trial court correctly ordered in this case.
Nevertheless, Bigsby relies on our court’s decision in Muff v. State, 647 N.E.2d 681
(Ind. Ct. App. 1995), trans. denied, in which we allowed double credit time in a consecutive
sentence context. This reliance, however, is misplaced. Our court has noted, “to 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 [v. State, 659 N.E.2d 554, 558-59 (Ind. 1995)] impliedly
overruled it.” Stephens, 735 N.E.2d at 284-85; see Diedrich v. State, 744 N.E.2d 1004, 1006
(Ind. Ct. App. 2001).
The post-conviction court did not err by denying Bigsby’s petition for post-conviction
relief. We affirm the post-conviction court’s order upholding Bigsby’s sentence and denying
him credit of 393 days on his Hamilton County sentence.
RILEY, J., and FRIEDLANDER, J., concur.
IC 35-50-1-2(d), in pertinent part provides, “If, after being arrested for one (1) crime, a person
commits another crime: (1) before the date the person is discharged from probation, parole, or a term of
imprisonment imposed for the first crime; . . . the terms of imprisonment for the crimes shall be served
consecutively, regardless of the order in which the crimes are tried and sentences are imposed.”