MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 31 2020, 10:25 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
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Thomas J. Flynn
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randall Earl Myers,                                      January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1736
        v.                                               Appeal from the Vermillion Circuit
                                                         Court
State of Indiana,                                        The Honorable Jill D. Wesch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         83C01-1812-F6-191



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020                 Page 1 of 6
                                               Case Summary
[1]   Randall Earl Myers (“Myers”) challenges as inadequate the credit time applied

      to his four-year sentence for Attempted Battery, as a Level 6 felony. 1 He

      presents the sole issue of whether he was denied credit time earned during a

      month of pre-sentence incarceration in the county jail and a five week

      placement in Truman House. We remand for further proceedings relative to

      credit time.



                                Facts and Procedural History
[2]   On December 4, 2018, Myers “swung at Officer Brian Sum [of the Clinton

      Police Department] in a rude, insolent, or angry manner with a closed fist.”

      (Tr. Vol. II, pg. 9.) He was charged with Attempted Battery, Disorderly

      Conduct, and Public Intoxication.


[3]   On March 5, 2019, Myers pled guilty to Attempted Battery and admitted his

      status as a habitual offender. Myers was at that time a pretrial detainee in the

      Vermillion County Jail, but he had been accepted into The Truman House, a

      twelve-step/behavior modification program. The trial court observed that

      Myers had been incarcerated from December 2, 2018 to March 5, 2019 and was

      entitled to seventy-nine “actual days” of credit time. Id. at 6. The trial court

      ordered Myers to remain in the Truman House program pending a status




      1
          Ind. Code §§ 35-42-2-1, 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020   Page 2 of 6
      hearing and admonished him that his leaving the program would result in

      immediate incarceration.


[4]   On June 6, 2019, Myers appeared for a sentencing hearing. He advised the trial

      court that he had resided at Truman House for approximately five weeks, he

      left because he could not pass a drug screen, he was discharged from the

      program, and he had been incarcerated in jail for approximately one month.

      The trial court imposed upon Myers a two-year sentence of imprisonment,

      enhanced by two years due to his status as a habitual offender. Myers was

      credited with eighty days accrued time and eighty days good time credit. He

      now appeals.



                                 Discussion and Decision
[5]   Myers claims that he was erroneously denied credit time for the days he spent

      at Truman House and in jail prior to his sentencing.


[6]   “Accrued time” is the amount of time that a person is imprisoned or confined.

      I.C. § 35-50-6-0.5(1). “Credit time” is the sum of a person’s accrued time, good

      time credit, and educational credit. Id. at (2). Indiana Code Section 35-50-6-4

      provides that a person who is not a credit-restricted felon and is imprisoned

      awaiting trial for a Level 6 felony is initially assigned to a Class A credit time

      assignment. Indiana Code Section 35-50-6-3.1(b) provides that a person

      assigned to Class A “earns one day of good time credit for each day the person

      is imprisoned for a crime or confined awaiting trial or sentencing.” Because


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020   Page 3 of 6
      credit time is a matter of statutory right, when a trial court finds that a person

      has a statutory entitlement, the court has no discretion in awarding it. Hickman

      v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017).


[7]   One is “imprisoned” when he is confined in a penal facility, but “confinement”

      is without a statutory definition for credit time purposes. Id. at 1086.

      Substantial control that is less than incarceration can constitute confinement in

      the sense of imprisonment. Id. (citing Capes v. State, 634 N.E.2d 1334, 1335

      (Ind. 1994)). Not every halfway house is a penal facility. Id. Factors for

      consideration include: (1) whether the placement was requested by the person

      as a condition of probation or was otherwise voluntary; (2) the degree of

      freedom of movement enjoyed by the person; (3) the degree of direct

      supervision over the placement exercised by the Department of Correction, a

      court, or another state actor; and (4) the degree of autonomy and privacy

      enjoyed by the person in conducting his everyday life. Id.


[8]   When Myers appeared for sentencing, counsel asked him “how long have you

      been incarcerated – do you remember when you started” and Myers replied that

      he had been incarcerated “approximately a month,” beginning May 17th and he

      clarified that he had been “incarcerated previously under this cause.” (Tr. Vol.

      II, pg. 19.) Additionally, Myers estimated that he had stayed at Truman House

      for five weeks. Truman House was willing to accept Myers back into its

      program; he testified that he “would remain in jail until a bed came up.” Id. at

      26.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020   Page 4 of 6
[9]   The State presented argument assuming that Myers was entitled to seventy-nine

      days accrued time and seventy-nine days good time credit, that which had been

      calculated at the March 5, 2019 hearing:


               I show that he owes in this case a total of 1,302 days and because
               that is enhanced by an habitual offender enhancement what he is
               sentenced to, if he’s sentenced to the 1,302, he would have 651
               actual days to serve, which would be served in the DOC because
               it would be more than 366 actual.2


      Id. at 27. Despite Myers’s uncontroverted claim that he had been incarcerated a

      second time, his entitlement to credit time accrued after the March 5, 2019

      hearing was not addressed. Nor was a determination made as to whether

      Myers had been confined, within the statutory credit time context, at Truman

      House. In the Abstract of Judgment, the trial court simply awarded Myers

      eighty days accrued time and eighty days good time credit. Because it appears

      from the record before us that Myers is entitled to additional credit time, we

      remand for further proceedings.




      2
        365 days x 4 = 1,460. 1,460 less 79 days accrued time is 1,381. 1,381 less 79 days good time credit is 1,302,
      the amount attributed to Myers by the State.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020                   Page 5 of 6
                                               Conclusion
[10]   We remand for a determination of credit time due Myers, if any, based upon his

       second incarceration awaiting trial in this cause and his placement in Truman

       House.


[11]   Remanded.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020   Page 6 of 6
