DAROD A. WHEELER, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT. The Honorable Stephen R. Heimann, Judge. Cause No. 03C01-1007-FB-1494.
ATTORNEY FOR APPELLANT: JAMES A. SHOAF, Columbus, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JAMES B. MARTIN, Deputy Attorney General, Indianapolis, Indiana.
BAKER, Judge. NAJAM, J., and CRONE, J., concur.
MEMORANDUM DECISION -- NOT FOR PUBLICATION
Here, appellant-defendant Darod A. Wheeler's probation was revoked, and he was ordered to serve a portion of his suspended sentence in the Indiana Department of Correction (DOC). Wheeler's credit time was applied to the remaining portion of his suspended sentence. Wheeler appealed.
After a panel of this Court determined that Wheeler's credit time must be applied to the executed portion of his sentence and remanded the case back to the trial court to correct the abstract of judgment, the trial court increased the executed portion of Wheeler's sentence, stating that if it did not, Wheeler would not receive the treatment that he needs from the DOC. Now, less than seven months later, Wheeler is before this Court again.
While the intent of the trial court may have been to ensure that Wheeler received the treatment that he needs, it erred by increasing the executed portion of his sentence on remand. Accordingly, we vacate the order of the trial court and instruct the trial court to reinstate the original sentencing order and modify it by applying the credit time that Wheeler has earned to the executed portion of his sentence. We further instruct the trial court to expedite this matter, insofar as Wheeler should likely be released.
On July 12, 2010, Wheeler was charged with two counts of class B felony dealing in cocaine. On January 21, 2011, the State amended the charging information, reducing both counts to class C felonies, and Wheeler pleaded guilty to the amended counts. On February 18, 2011, the trial court entered a judgment of conviction on both counts and sentenced Wheeler to concurrent terms of five years on each count with all time suspended. Wheeler was ordered to serve a four-year term on probation and to a one-year placement with community corrections, which could include work release or home detention. Wheeler was given " 71 actual days credit . . . toward the sentence of imprisonment for time spent in confinement as a result of these charges."
Wheeler v. State, 992 N.E.2d 239, (Ind.Ct.App. 2013).
On April 25, 2012, the State filed a petition to revoke probation, alleging that Wheeler had violated the terms of his probation by failing to: complete substance abuse treatment, maintain full-time employment, pay fees, complete twenty-four hours of community service during the weeks that he was not fully employed, and submit to three requested drug screens. ...