      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               FILED
      regarded as precedent or cited before any                      Mar 21 2017, 5:46 am
      court except for the purpose of establishing                        CLERK
      the defense of res judicata, collateral                         Indiana Supreme Court
                                                                         Court of Appeals
      estoppel, or the law of the case.                                    and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                 Attorney General of Indiana
      Brooklyn, Indiana
                                                              Caryn N. Szyper
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Linda K. Hamilton,                                      March 21, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              84A01-1608-CR-1754
              v.                                              Appeal from the Vigo Superior
                                                              Court
      State of Indiana,                                       The Honorable John T. Roach,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              84D01-1403-FC-623



      Barnes, Judge.


                                             Case Summary
[1]   Linda Hamilton appeals the trial court’s credit time calculation. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017    Page 1 of 7
                                                     Issue
[2]   Hamilton raises one issue, which we restate as whether the trial court properly

      calculated her credit time.


                                                    Facts
[3]   In 2013, the State charged Hamilton with Class C felony welfare fraud and

      Class D felony theft. In May 2015, Hamilton pled guilty to Class C felony

      welfare fraud, and the trial court sentenced her to four years in the Department

      of Correction with all suspended to probation. In December 2015, the trial

      court found that Hamilton had violated the terms of her probation by using

      methamphetamine and missing drug screens. The trial court ordered her to

      “complete the Jail Linkage Program, at which time defendant will be ordered

      into sober living as a condition of probation.” Appellant’s App. Vol. II p. 70.

      Hamilton completed the Jail Linkage Program on February 24, 2016, but a bed

      was unavailable at the sober living program, Club Soda. The trial court

      returned Hamilton to probation and ordered her to “reside at and successfully

      complete sober living” when space was available. Id. at 76. On March 2, 2016,

      Hamilton again tested positive for methamphetamine, and the trial court found

      that she had violated her probation. The trial court ordered Hamilton to serve

      100 days of her previously-suspended sentence, returned her to probation, and

      ordered her to reside at and successfully complete Club Soda Sober Living as a

      condition of her probation upon her release from jail. Hamilton started the

      Club Soda program on May 2, 2016. Club Soda discharged Hamilton from the

      program on June 2, 2016, after she tested positive for opiates. On June 6, 2016,

      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017   Page 2 of 7
      Hamilton tested positive for methamphetamine and hydrocodone. The trial

      court found that Hamilton had violated her probation and ordered her to serve

      her previously-suspended four-year sentence. The trial court found:


              Defendant is entitled to credit for time served in the Vigo County
              Jail from March 17, 2014 through March 18, 2014 [two (2) days],
              from November 24, 2015 through February 26, 2016 [ninety-five
              (95) days], from March 14, 2016 through May 2, 2016 [fifty (50)
              days] and from June 23, 2016 through July 17, 2016 [twenty-five
              (25) days], for a total of one hundred seventy-two (172) actual
              days, together with good time credit in the amount of one
              hundred seventy-two (172) days, for a total credit time against
              the sentence in this cause of three hundred forty-four (344) days.


      Id. at 99. At the hearing, Hamilton did not request credit time for her time

      spent at Club Soda. Hamilton now appeals.


                                                  Analysis
[4]   Hamilton appeals the trial court’s calculation of her credit time. Hamilton

      argues that she was entitled to credit for time served and good time credit for

      her time spent at Club Soda from May 2, 2016, to June 2, 2016. In support of

      her argument, Hamilton relies on Indiana Code Section 35-38-2.5-5, which

      provides:

              (e)     A person confined on home detention as a condition of
                      probation receives one (1) day of accrued time for each
                      day the person is confined on home detention.


              (f)     In addition to accrued time under subsection (e), a person
                      confined on home detention as a condition of probation is

      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017   Page 3 of 7
                      entitled to earn good time credit under IC 35-50-6-3 or IC
                      35-50-6-3.1. . . .


              (g)     A person confined on home detention may be deprived of
                      earned good time credit if the person violates a condition
                      of probation.


[5]   “Home” for the purposes of home detention includes a residential treatment

      facility. Ind. Code § 35-38-2.5-2. An order for home detention as a condition

      of probation must contain specific requirements set out in Indiana Code Section

      35-38-2.5-6, including:


              (1)     A requirement that the offender be confined to the
                      offender’s home at all times except when the offender is:


                      (A)      working at employment approved by the court or
                               traveling to or from approved employment;


                      (B)      unemployed and seeking employment approved for
                               the offender by the court;


                      (C)      undergoing medical, psychiatric, mental health
                               treatment, counseling, or other treatment programs
                               approved for the offender by the court;


                      (D)      attending an educational institution or a program
                               approved for the offender by the court;


                      (E)      attending a regularly scheduled religious service at a
                               place of worship; or




      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017   Page 4 of 7
                (F)      participating in a community work release or
                         community restitution or service program approved
                         for the offender by the court.


        (2)     Notice to the offender that violation of the order for home
                detention may subject the offender to prosecution for the
                crime of escape under IC 35-44.1-3-4.


        (3)     A requirement that the offender abide by a schedule
                prepared by the probation department, or by a community
                corrections program ordered to provide supervision of the
                offender’s home detention, specifically setting forth the
                times when the offender may be absent from the offender’s
                home and the locations the offender is allowed to be
                during the scheduled absences.


        (4)     A requirement that the offender is not to commit another
                crime during the period of home detention ordered by the
                court.


        (5)     A requirement that the offender obtain approval from the
                probation department or from a community corrections
                program ordered to provide supervision of the offender’s
                home detention before the offender changes residence or
                the schedule described in subdivision (3).


        (6)     A requirement that the offender maintain:


                (A)      a working telephone in the offender’s home; and


                (B)      if ordered by the court, a monitoring device in the
                         offender’s home or on the offender’s person, or
                         both.


Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017   Page 5 of 7
              (7)     A requirement that the offender pay a home detention fee
                      set by the court in addition to the probation user’s fee
                      required under IC 35-38-2-1 or IC 31-40. However, the fee
                      set under this subdivision may not exceed the maximum
                      fee specified by the department of correction under IC 11-
                      12-2-12.


              (8)     A requirement that the offender abide by other conditions
                      of probation set by the court under IC 35-38-2-2.3.


              (9)     A requirement that an offender:


                      (A)      who is convicted of an offense described in IC 10-
                               13-6-10;


                      (B)      who has not previously provided a DNA sample in
                               accordance with IC 10-13-6; and


                      (C)      whose sentence does not involve a commitment to
                               the department of correction;


                      provide a DNA sample.


[6]   Although Hamilton is correct that a residential treatment facility may qualify as

      “home” for the purposes of home detention, there is no indication that Club

      Soda met those requirements. Additionally, the trial court did not issue an

      order that included the home detention requirements detailed in Indiana Code

      Section 35-38-2.5-6. There is no indication that Hamilton’s activities were

      restricted as would be consistent with a home detention order, and there is no

      evidence in the record regarding Club Soda’s program or any restrictions


      Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1754| March 21, 2017   Page 6 of 7
      associated with the program. The trial court properly did not give Hamilton

      credit time for her time spent at Club Soda. See, e.g., Oswalt v. State, 749 N.E.2d

      612, 615 (Ind. Ct. App. 2001) (holding that the defendant was not entitled to

      credit for time he spent in a substance abuse facility as a condition of probation

      where there was no evidence that the trial court monitored or restricted his

      movements while he was in the facility).


                                               Conclusion
[7]   The trial court’s credit time calculation was proper. We affirm.


[8]   Affirmed.


      Kirsch, J., and Robb, J., concur.




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