MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Feb 16 2018, 9:15 am

this Memorandum Decision shall not be                                               CLERK
                                                                                Indiana Supreme Court
regarded as precedent or cited before any                                          Court of Appeals
                                                                                     and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Buggs,                                              February 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2215
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Richard E.
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1307-FA-42721



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018          Page 1 of 7
                                        Statement of the Case
[1]   Mark Buggs appeals the trial court’s sentencing order following the revocation

      of his placement in a community corrections facility. Buggs raises one issue for

      our review, namely, whether the trial court erred when it denied him good time

      credit for sixty days he served in the work release program. Buggs contends

      that community corrections lacked the authority to deprive him of good time

      credit. The State does not dispute Buggs’ contention on appeal. We agree and

      reverse and remand with instructions.


                                  Facts and Procedural History
[2]   On March 3, 2014, Buggs pleaded guilty to dealing in cocaine, as a Class B

      felony, and two counts of neglect of a dependent, as Class C felonies. On April

      14, the trial court accepted his guilty plea and sentenced him to an aggregate

      term of six years, with three years to be served in the Department of Correction

      and three years to be served in the Marion County Community Corrections

      Program.


[3]   On April 14, 2015, the trial court approved Buggs’ placement in a community

      transition program. Buggs began his placement in the Marion County

      Community Corrections Work Release Program on October 20. On October

      27, Buggs was deprived of sixty days of good time credit. 1 On December 15,




      1
        There is no information in the record to indicate the reason Community Corrections deprived Buggs of
      sixty days of good time credit.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018       Page 2 of 7
      the State filed a notice of community corrections violation, which alleged that

      Buggs had violated two conditions of his placement because he failed to return

      to the residential center after he had been released on an approved pass. The

      trial court then issued an order for his arrest, and he was arrested on December

      25, 2016. On August 3, 2017, the trial court held a hearing at which Buggs

      admitted to both of the violations. The parties then discussed the credit time

      that Buggs had been denied, and the following conversation occurred:


              THE COURT: So it’s 90, 90 days, so it’s 60 days on the sheet
              but I think it’s 90 days.


              [Community Corrections Team Officer]: He had 30 days
              deprived while he was in DOC[,] that was on September 16,
              2015.


              THE COURT: Okay, all right and add 60 at work release.


              [Community Corrections Team Officer]: 60 yeah work release.


              THE COURT: All right.


      Tr. Vol. II at 5. The State did not object or otherwise dispute those statements

      made by the Community Corrections Team Officer.


[4]   Buggs then asserted that the community corrections program did not have the

      authority to take away credit time. In response, the State stated: “I’ve heard of

      community corrections being able to take away good time credit[.]” Id. at 6.

      On September 7, the trial court held a sentencing hearing. At the start of that


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018   Page 3 of 7
      hearing, Buggs stated that there were two questions of credit time at issue. The

      first was thirty days he was denied while he was at the Department of

      Correction.2 The second “is 60 days taken from work release under Marion

      County Community Corrections[.]” Id. at 10. The State responded and stated

      that Buggs “was given a hearing and opportunity and he admitted to the

      violation so his credit time was deprived at work release.” Id. at 11. The trial

      court held that community corrections could deny credit time. The trial court

      revoked Buggs’ placement in community corrections and gave him credit time

      for 881 actual days served plus 791 credit days. In its sentencing order, the trial

      court noted that Buggs lost thirty days of credit time while he was in the

      Department of Correction and sixty days while he was in the work release

      program. This appeal ensued.


                                         Discussion and Decision
[5]   Buggs contends that the trial court erred when it honored the community

      corrections’ deprivation of credit time and withheld sixty days of good time

      credit because community corrections did not have the authority to deprive him

      of credit time.


[6]   We first note that the State contends Buggs has waived this issue on appeal

      because he failed to provide an adequate record. Specifically, the State asserts

      that “the only documentation [Buggs] has included with respect to the credit




      2
          Buggs does not appeal the deprivation of those thirty days.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018   Page 4 of 7
      time calculation on appeal is two one-page documents, one page of which has

      no information with respect to who authored it and the second of which was

      allegedly authored by someone in community corrections.” Appellee’s Br. at

      11-12. Further, the State asserts that “[i]t is unclear whether the deprivations

      occurred due to sanctions [Buggs] received while in the D.O.C. or while in

      community corrections.” Id. at 12.


[7]   But Buggs provided the transcripts from the August 3 and September 7

      hearings, which provide information on the issue of credit time. And it is clear

      from those transcripts that the State did not dispute the fact that community

      corrections deprived Buggs of sixty days of credit time. During the August 3,

      2017, hearing, the Community Corrections Team Officer stated that Buggs was

      deprived of thirty days while he was in the Department of Correction and sixty

      days while he was on work release. And the State responded and stated: “I’ve

      heard of community corrections being able to take away good time credit[.]”

      Tr. Vol. II at 6. Further, during the September 7 sentencing hearing, Buggs

      stated that one of the issues regarding credit time “is 60 days taken from work

      release under Marion County Community Corrections[.]” Id. at 10. The State

      replied that Buggs “was given a hearing and opportunity and he admitted to the

      violation so his credit time was deprived at work release.” Id. at 11. The record

      is clear both that Buggs preserved the issue, and the State did not dispute, that

      community corrections had deprived Buggs of sixty days of credit time. As

      such, Buggs provided an adequate record and we will reach the merits of Buggs’

      appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018   Page 5 of 7
[8]   On the merits, Buggs contends that the trial court erred when it miscalculated

      his earned credit time because it honored the deprivation of credit time by

      community corrections and that community corrections lacked the authority to

      deprive him of credit time. Credit time is a matter of statutory right, and trial

      courts do not have discretion in awarding or denying such credit. Hickman v.

      State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017). Whether Buggs is entitled to

      additional credit time presents a question of statutory interpretation, which this

      court reviews de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).


[9]   In support of his contention, Buggs relies on Shepard v. State, 84 N.E.3d 1171,

      1174 (Ind. 2017), in which the Indiana Supreme Court held that, absent rules

      that expressly pertain to the delegation of good time credit deprivation powers,

      the community corrections director lacked authority to deprive the defendant of

      any earned good time credit. The State does not dispute this issue on appeal

      and concedes that “if the community corrections program did in fact deprive

      [Buggs] of 60 days of good time credit that he earned while serving his sentence

      in the community corrections program, it was without authority to do so.”

      Appellee’s Br. at 13. The State further acknowledges that Buggs “may be

      entitled to receive 60 additional days of good credit time,” which “would

      amount to 851 days of good time credit as of the time of his community

      corrections revocation hearing (881 days of actual time served minus 30 days of

      good time credit that the D.O.C. previously deprived [Buggs] of, which [Buggs]

      does not challenge.” Appellee’s Br. at 13-14. Our Supreme Court’s opinion in

      Shepard requires that Buggs’ earned credit time be recalculated. Accordingly,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018   Page 6 of 7
       we reverse the trial court’s determination as to Buggs’ good time credit, and we

       remand to the trial court with instructions to reinstate sixty days of good time

       credit and to recalculate Buggs’ credit time.


[10]   Reversed and remanded with instructions.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018   Page 7 of 7
