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Date: 12-08-2020
Case Style:
Bryson L Small v. State of Indiana
Case Number: 20A-CR-01202
Judge: Cale J. Bradford
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Defendant's Attorney:
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Description:
Kokomo, Indiana - Criminal defense lawyer represented defendant Bryson Small with contending that the trial court (1) abused its discretion in sentencing him and (2) erred in awarding him only 1087 days of credit for time spent incarcerated prior to sentencing.
On March 16, 2018, Small and Alice Koontz were at the Howard County
courthouse for a paternity hearing regarding Alice’s daughter, A.K. Alice was
accompanied at the courthouse by A.K. and Jackie Koontz. Prior to the
paternity hearing, Small instigated a physical altercation with Alice and Jackie.
[3] The parties stipulated to, and security footage from the courthouse showed,
what happened next:
[Small] approach[es] Jackie and Alice. [Small] shoves Jackie out
of the way in order to get to Alice. Jackie falls to the ground.
[Small] then punches Alice with a closed fist in the face. Jackie
got up and tried to get in the middle of [Small] and Alice. After
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 3 of 8
the punch, Alice falls to the ground and appears to be
unconscious as she is not fighting back. [Small] kicks Alice in
the head multiple times before bystanders and court security
officers are able to respond and get him away. The video shows
[Small] continuing to kick Alice in the head several more times
while he is fighting with the officers that had responded.
Another bystander was able to pull Alice away from the
altercation. Alice was laying on the ground lifeless, making no
movements, and appeared to be unconscious from the punches
and kicks that she had received from [Small].
Appellant’s App. Vol. II p. 22. During the altercation, one of the responding
officers was struck by Small in the face and, as a result of the altercation,
suffered pain in his left shoulder. Also as a result of the altercation, Jackie
received a large cut on her head that required several staples, and Alice
sustained multiple facial fractures.
[4] On March 27, 2018, Small was charged with Level 3 felony aggravated battery,
two counts of Level 5 felony battery resulting in serious bodily injury, Level 5
felony battery resulting in bodily injury to a public safety officer, Level 6 felony
domestic battery, and Level 6 felony resisting law enforcement. On April 7,
2020, Small pled guilty to Level 3 felony aggravated battery, one count of Level
5 felony battery resulting in serious bodily injury, Level 5 felony battery
resulting in bodily injury to a public safety officer, and Level 6 felony resisting
law enforcement. In exchange for Small’s guilty plea, the State agreed to
dismiss the remaining charges. Small’s plea agreement also indicated that
“[s]entencing shall be left to the discretion of the court with a maximum
executed time of 20 years.” Appellant’s App. Vol. II p. 108.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 4 of 8
[5] Following a hearing, the trial court accepted Small’s guilty plea and sentenced
Small as follows: fourteen years for Level 3 felony aggravated battery, five
years for Level 5 felony battery resulting in serious bodily injury, five years for
Level 5 felony battery resulting in bodily injury to a public peace officer, and
two years for Level 6 felony resisting law enforcement. The trial court ordered
that the sentences for Level 3 felony aggravated battery and Level 5 battery be
run consecutively to each other, and that the sentence for Level 6 felony
resisting law enforcement run concurrently to the others. In total, the trial court
imposed an aggregate twenty-four-year sentence, of which twenty years was
ordered to be served in the Department of Correction and the remaining four
years suspended to probation. The trial court also awarded Small 1087 days of
credit for time spent incarcerated prior to sentencing.
Discussion and Decision
I. Abuse of Discretion
[6] Small contends that the trial court abused its discretion by imposing an
aggregate twenty-four-year sentence, arguing that the sentence exceeds the
maximum sentence allowed by law. “We have long held that a trial judge’s
sentencing decisions are reviewed under an abuse of discretion standard.”
McCain v. State, 148 N.E.3d 977, 981 (Ind. 2020) (internal citation omitted).
“An abuse of discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable,
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 5 of 8
probable, and actual deductions to be drawn therefrom.” Id. (internal
quotations omitted).
[7] Except for crimes of violence, the total of the consecutive terms of
imprisonment to which a defendant is sentenced for felony convictions arising
out of an episode of criminal conduct shall not exceed twenty years if the most
serious crime for which a defendant is sentenced is a Level 3 felony. Ind. Code
§ 35-50-1-2(c) and (d)(4). In Ellis v. State, the Indiana Supreme Court addressed
the application of the limitation set forth in Indiana Code section 35-50-1-2(d)
to cases involving both crimes of violence and non-crimes of violence,
explaining that
The rule of lenity requires that criminal statutes be strictly
construed against the State. Adherence to this rule requires that
we interpret the statute to exempt from the sentencing limitation
(1) consecutive sentencing among crimes of violence, and (2)
consecutive sentencing between a crime of violence and those
that are not crimes of violence. However, the limitation should
apply for consecutive sentences between and among those crimes
that are not crimes of violence.
736 N.E.2d 731, 737 (Ind. 2000) (internal quotation omitted).
[8] In this case, three of Small’s four convictions qualified as crimes of violence.
See Ind. Code § 35-50-1-2(a)(6) and (a)(8) (providing that aggravated battery and
Level 5 felony battery qualify as crimes of violence). Applying Indiana Code
section 35-50-1-2 and Indiana Supreme Court’s decision in Ellis to the instant
matter, we conclude the twenty-year limitation does not apply to the portions
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 6 of 8
Small’s total aggregate sentence that were imposed in relation to crimes of
violence, only to those portions of his total aggregate sentence that were not.
Small was convicted of one non-crime of violence, Level 6 felony resisting law
enforcement, and his sentence for that conviction was two years and ran
concurrently to the aggregate twenty-four-year sentence imposed for his crimes
of violence. Because the portions of Small’s sentence that, when run
consecutively, exceed the twenty-year limitation set forth in Indiana Code
section 35-50-1-2(d)(4) were imposed in relation to crimes of violence, Small’s
sentence does not violate Indiana Code section 35-50-1-2. As such, we
conclude that the trial court did not abuse its discretion in sentencing Small.
II. Credit Time
[9] Small also contends that the trial court erred in awarding him only 1087 days of
credit for time spent incarcerated prior to sentencing.
Under the Indiana Penal Code, prisoners receive credit time that
is applied to reduce their term of imprisonment. The time spent
in confinement before sentencing applies toward a prisoner’s
fixed term of imprisonment. The amount of additional credit or
good time credit is primarily determined by the prisoner’s credit
time classification.
Rudisel v. State, 31 N.E.3d 984, 988–89 (Ind. Ct. App. 2015) (quotation and
citations omitted). “There are two types of credit that must be calculated: (1)
the credit toward the sentence a prisoner receives for time actually served, and
(2) the additional credit a prisoner receives for good behavior and educational
attainment.” Moon v. State, 110 N.E.3d 1156, 1160 (Ind. Ct. App. 2018)
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 7 of 8
(internal quotation omitted). “Credit time is a matter of statutory right and trial
courts do not have discretion in awarding or denying such credit.” Id.
[10] Pursuant to Indiana Code Section 35-50-6-4(a), a person who is not a creditrestricted felon and is imprisoned awaiting trial or sentencing for a Level 6
felony or misdemeanor is initially assigned to Class A. “A person assigned to
Class A earns one (1) day of good time credit for each day the person is
imprisoned for a crime or confined awaiting trial or sentencing.” Ind. Code §
35-50-6-3.1(b). Pursuant to Indiana Code section 35-50-6-4(b), a person who is
not a credit-restricted felon and is imprisoned awaiting trial or sentencing for a
crime other than a Level 6 felony or misdemeanor is initially assigned to Class
B. “A person assigned to Class B earns one (1) day of good time credit for
every three (3) days the person is imprisoned for a crime or confined awaiting
trial or sentencing.” Ind. Code § 35-50-6-3.1(c). “A person imprisoned
awaiting trial is initially assigned to a credit class based on the most serious
offense with which the person is charged.” Ind. Code § 35-50-6-4(h). However,
“[i]f all the offenses of which a person is convicted have a higher credit time
class than the most serious offense with which the person is charged, the person
earns credit time for the time imprisoned awaiting trial at the credit time class of
the most serious offense of which the person was convicted.” Ind. Code § 35-
50-6-4(h).
[11] In this case, nothing in the record indicates that Small was a credit-restricted
felon. The most serious offense for which he was charged and convicted was a
Level 3 felony. As such, he qualified for Class B credit, or one day of “good
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1202 | December 7, 2020 Page 8 of 8
time credit” for every three days served while awaiting trial. See Ind. Code §
35-50-6-3.1(c). In sentencing Small, the trial court awarded Small 815 actual
days and 272 additional days of credit time, for a total of 1087 days. Small does
not argue that the trial court erred in crediting him for serving 815 actual days
while awaiting sentencing. The 272 days of additional credit time equals onethird of the actual time he was incarcerated prior to sentencing, or one day for
every three days served. The trial court, therefore, awarded Small the correct
amount of credit time.
[12] Furthermore, we are unpersuaded by Small’s claim that he should have been
granted Class A credit time for some of the time he spent incarcerated prior to
trial. Indiana Code section 35-50-6-4(h) “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.” Moon,
110 N.E.3d at 1161. Here, the most serious offense with which Small was
charged and convicted was a Level 3 felony. We conclude that the trial court
did not err when it calculated Small’s good time credit based on that offense.
See id. (concluding that the trial court did not err when it calculated the
defendant’s good time credit based on his Level 4 felony conviction rather than
his Level 6 felony conviction).
Outcome: [13] The judgment of the trial court is affirmed.
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Defendant's Experts:
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