Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any 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:

JOHN PINNOW                                      GREGORY F. ZOELLER
State Public Defender                            Attorney General of Indiana
Greenwood, Indiana
                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Feb 21 2012, 9:12 am

                               IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




TRINA STOVER THORSTENSON,                        )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )       No. 42A01-1106-CR-287
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                        APPEAL FROM THE KNOX SUPERIOR COURT
                           The Honorable W. Timothy Crowley, Judge
                                Cause No. 42D01-0306-FC-118
                                          42D01-0306-FC123
                                          42D01-0311-FC-208



                                     February 21, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                         Case Summary and Issue

        Trina Stover Thorstenson appeals the trial court’s partial denial of her motion for

credit time following revocation of her probation. The sole issue on appeal is whether the

trial court erroneously allotted to Thorstenson insufficient good time credit. Concluding

the trial court did not err, we affirm.

                                      Facts and Procedural History

        In 2003, Thorstenson was charged with numerous offenses under three different

cause numbers.1 In June 2006, she pleaded guilty to one count of forgery as a Class C

felony under each of the three cause numbers and the State dismissed the remaining

charges. As to each of the three cause numbers, 42D01-0306-FC-118 (“Cause 118”),

42D01-0306-FC-123 (“Cause 123”), and 42D01-0311-FC-208 (“Cause 208”), the trial

court entered a judgment of conviction and sentenced her to four years, all suspended to

probation. As to each sentence, the first two years were to be served on home detention

through community corrections as a condition of probation; the second two years were to

be formal probation. The trial court ordered she serve her sentence for Cause 118

concurrent with her sentence for Cause 123, and that she serve these consecutive to her

sentence for Cause 208.

        At sentencing the trial court granted Thorstenson 127 days credit for time served

prior to sentencing as to Cause 118 and Cause 123, and 262 days credit for time served as

to Cause 208. Thorstenson then served home detention from June 7, 2006 to August 15,

2007.


        1
           Thorstenson was also charged with, convicted of, and imprisoned regarding other offenses in the ensuing
years, but we need not discuss such offenses and time served.
                                                        2
       In May 2009, the State filed a notice of probation violation as to all three cause

numbers. At a February 2011 hearing, Thorstenson admitted to the violation and the trial

court revoked Thorstenson’s probation. The trial court ordered she serve two years as to

Cause 118 concurrent with two years as to Cause 123, and consecutive to two years as to

Cause 208, all at the Department of Correction. Pursuant to Thorstenson’s subsequent

motions for jail time credit and motion for reconsideration, the trial court granted 155

days of credit for time served as to Cause 118 and Cause 123 and no credit as to Cause

208. Thorstenson now appeals.

                                 Discussion and Decision

                                  I. Standard of Review

       Thorstenson contends the trial court erred in granting her ninety-four too few days

of “credit for time served and all applicable good time credit” upon revoking her

probation. Brief of Defendant-Appellant at 8. Thorstenson’s appellate argument rests on

the interpretation and application of Indiana law. Thus, we review the trial court’s factual

determinations for an abuse of discretion, and legal conclusions de novo. See Strowmatt

v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002) (citation omitted).

                                      II. Credit Time

                                   A. Framing the Issue

       At the outset it is helpful to clarify that Thorstenson does not dispute: 1) the trial

court properly determined prior to sentencing Thorstenson earned 127 days credit for

time served as to Cause 118 and Cause 123, and 262 days credit for time served as to

Cause 208; and 2) Thorstenson’s probation was properly revoked and the trial court

properly ordered that she serve two years as to Cause 118 concurrent with two years as to
                                             3
Cause 123, and consecutive to two years as to Cause 208, all at the Department of

Correction. Thorstenson does not contend the trial court erred in its arithmetic or that it

unintentionally used the wrong dates in its calculations. Thorstenson’s sole contention is

that the trial court erred in denying her “good time” credit for the period she served on

home detention.     Good time credit is credit for an offender’s “good behavior and

educational attainment,” usually in addition to credit for time actually served. Purcell v.

State, 721 N.E.2d 220, 222 (Ind. 1999) (footnote omitted).

                                        B. Waiver

       The State first argues that Thorstenson waived the issue of good time credit by

affirmatively conceding to the sentencing trial court that she was not entitled to such

credit. Indeed, in a June 2011 petition for the court to reconsider its calculation of credit

time, Thorstenson, proceeding pro se, wrote: “Petitioner understands that the above-

mentioned law states that she is entitled only to the days spent on home detention and no

good time credit will be awarded.” Appendix of Defendant-Appellant at 184 (emphasis

in original). This appears to have invited the trial court to make the decision she now

contends is erroneous. An invited error waives that issue on appeal. Joyner v. State, 736

N.E.2d 232, 237 (Ind. 2000). However, this Court prefers to decide cases on the merits

rather than on purportedly waived allegations of error. Hatcher v. State, 510 N.E.2d 184,

187 (Ind. Ct. App. 1987).

                                   C. Good Time Credit

       In any event, we conclude that Thorstenson is not entitled to good time credit for

the period she served on home detention. Thorstenson was charged in 2003 and the trial

court sentenced her in 2006 to an aggregate of eight years, all suspended, with the first
                                             4
four to be served on home detention “[a]s a condition of probation.” App. of Defendant-

Appellant at 96 (regarding Cause 118); id. at 289 (regarding Cause 123); id. at 471

(regarding Cause 208).

       The Indiana Code clearly distinguishes between home detention served through

direct placement in community corrections and home detention served as a condition of

probation. Direct placement in community corrections, which includes home detention

among other programs, is governed by Indiana Code chapter 35-38-2.6. See Brown v.

State, 957 N.E.2d 666, 671 (Ind. Ct. App. 2011) (stating that credit time for home

detention, under section 35-38-2.6-6, applies only to those who serve home detention as a

result of direct placement in a community corrections program).

       Home detention as a condition of probation is governed by a different chapter of

the Indiana Code – chapter 35-38-2.5. A person confined on home detention under this

chapter receives credit on the basis of actual days served. Ind. Code § 35-38-2.5-5(d),

(e).

       Effective July 1, 2010, Indiana Code section 35-38-2.6-6 states that a person who

is placed in a community corrections program under “this chapter,” which relates to

direct placement, is entitled to earn good time credit time under chapter 35-50-6. See

Purcell, 721 N.E.2d at 223 (describing chapter 35-50-6). But chapter 35-38-2.5, relating

to home detention served as a condition of probation, does not similarly allow for good

time credit. Wharff v. State, 691 N.E.2d 205, 206 (Ind. Ct. App. 1998), trans. denied.

       Thus, based on the chapter under which the trial court sentenced Thorstenson to

home detention – chapter 35-38-2.5, as a condition of probation – we conclude that


                                            5
Thorstenson is not eligible to receive good time credit for the time she served on home

detention.

       But Thorstenson also contends that the 2010 amendment to Indiana Code section

35-38-2.6-6, which revised the Indiana Code to remove a restriction and allow good time

credit for offenders who served home detention in direct placement, applies to her. We

disagree, even while forgiving for a moment our explanation of the clear distinction

between home detention served through direct placement in community corrections and

home detention served as a condition of probation.

       Even if Indiana Code section 35-38-2.6-6 applied to home detention as a condition

of probation – which it does not – the 2010 amendment to that statute would not apply

retroactively to Thorstenson. “The general rule of statutory construction is that unless

there are strong and compelling reasons, statutes will not be applied retroactively.” State

v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005). “Statutes are to be given prospective effect

only, unless the legislature unequivocally and unambiguously intended retrospective

effect as well.” Id. The exceptions are “remedial statutes,” which are “intended to cure a

defect or mischief that existed in a prior statute.” Id. “Remedial statutes will be applied

retroactively to carry out their legislative purpose unless to do so violates a vested or

constitutional guaranty.” Id. In short, retroactive application of a statutory amendment is

appropriate when: “(1) the new statute is remedial; (2) a strong and compelling reason

exists for applying it retroactively; and (3) retroactive application does not violate a

vested right or a constitutional guaranty.” Brown v. State, 947 N.E.2d 486, 490 (Ind. Ct.

App. 2011), trans. denied.


                                            6
       We concluded in Brown that Indiana Code section 35-38-2.6-6 is not a remedial

statute, and reiterate that conclusion here. 947 N.E.2d at 491. The 2010 amendment to

section 35-38-2.6-6 “reversed course on the underlying policy in the statute . . . . as part

of a broader package of amendments concerning community corrections programs . . . .”

Id. In particular, it allowed offenders to earn good time credit for time served on home

detention through direct placement. Id. This change of policy is not remedial, and

further there is no compelling reason to apply it retroactively here.

                                        Conclusion

       The trial court correctly calculated Thorstenson’s credit time, and we therefore

affirm its order.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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