                                                                                  FILED
                                                                             Apr 29 2020, 10:13 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Trampas A. Whalin                                           Curtis T. Hill, Jr.
Dollard Evans Whalin LLP                                    Attorney General
Noblesville, Indiana                                        George P. Sherman
                                                            Supervising Deputy Attorney General
                                                            Indianapolis, Indiana


                                               IN THE
      COURT OF APPEALS OF INDIANA

Reynaldo Ernesto Alvarez,                                   April 29, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-1906
        v.                                                  Appeal from the Hamilton Superior
                                                            Court
State of Indiana,                                           The Honorable Jonathan Brown,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            29D02-1810-F3-7142



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020                                    Page 1 of 8
                                               Case Summary
[1]   Reynaldo Ernesto Alvarez pled guilty to level 6 felony sexual battery and was

      subsequently sentenced to two and a half years in the Indiana Department of

      Correction. Alvarez filed a motion to correct error arguing that the trial court

      erred during sentencing in declining to give him credit for time spent in the

      Hamilton County Jail prior to the entry of his conviction and sentencing

      hearing. The trial court denied the motion. Alvarez now appeals asserting that

      the trial court abused its discretion in denying his motion. Finding no abuse of

      discretion, we affirm.


                                   Facts and Procedural History
[2]   Alvarez sexually assaulted F.W. in the front yard of her Hamilton County

      home. On October 9, 2018, the State charged Alvarez with two counts of level

      3 felony rape. Alvarez was arrested and an initial hearing was held on October

      11, 2018. The trial court set bond at $100,000. A bond review hearing was

      held on October 25, 2018. During the hearing, Alvarez, a citizen of El Salvador

      allegedly seeking political asylum in the United States, admitted that he was

      aware that United States Immigration and Customs Enforcement (ICE) had

      placed a “hold” on him. Tr. Vol. 2 at 15. He also informed the trial court that

      he had pending battery charges in Marion County for battery against a person

      less than fourteen years of age, that he had previously been convicted in Marion

      County of battery resulting in bodily injury and for operating a motor vehicle

      without ever receiving a license, and that he had violated probation on multiple

      occasions. His counsel argued that due to the ICE hold and other pending

      Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020        Page 2 of 8
      issues, Alvarez was not a flight risk and therefore bond should be reduced. At

      the conclusion of the hearing, the trial court reduced bond to $50,000, and set

      the case for a pretrial conference on December 20, 2018. The court scheduled

      the jury trial for February 5, 2019. Alvarez posted bond on October 17, 2018,

      and was released from the Hamilton County Jail.


[3]   The day before the scheduled pretrial conference, on December 19, 2018, the

      State filed a motion to continue the conference. The motion stated that Alvarez

      was now in federal custody and that his counsel had agreed to the continuance.

      The trial court granted the motion to continue. On December 26, 2018, the

      State also filed a petition for writ of habeas corpus ad prosequendum.

      Specifically, the State requested the trial court to issue the writ to the U.S.

      Department of Homeland Security in Illinois to transport Alvarez to Indiana for

      the proceedings in the instant case. The trial court granted the State’s petition

      and issued the writ to federal authorities in Illinois.


[4]   Alvarez was indeed transported to Indiana and appeared for a pretrial hearing

      on January 8, 2019, and the trial court again set the matter for jury trial. The

      trial court then remanded Alvarez “to the Hamilton County Jail pursuant to a

      hold by the Department of Homeland Security, to remain in the Hamilton

      County Jail on that hold until further request from the Department of

      Homeland Security.” Appellant’s App. Vol. 2 at 27.


[5]   The trial date was later vacated, and a guilty plea hearing was held on May 17,

      2019. Alvarez pled guilty to one count of level 6 felony sexual battery in


      Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020           Page 3 of 8
      exchange for dismissal of the rape charges. On June 27, 2019, the trial court

      sentenced Alvarez to two and a half years in the Department of Correction.

      During the sentencing hearing, Alvarez requested credit for the time served

      after he was returned to the Hamilton County Jail in January 2019 up until

      sentencing. The State responded that Alvarez was not entitled to the credit

      time because he had posted bond and was released in the current case and was

      only in custody due to the federal ICE hold. The trial court reviewed the prior

      proceedings, and its writ of habeas corpus ad prosequendum, and determined

      that Alvarez had already posted bond in the current case and was being

      detained solely based upon the federal hold. The court observed that the writ

      was simply a “transport order,” and that Alvarez was no longer accruing credit

      time in the current case when he was returned to Hamilton County. Tr. Vol. 2

      at 54. Accordingly, the trial court granted Alvarez credit for the eighteen actual

      days plus eighteen good time credit days served in the Hamilton County Jail

      prior to him posting bond (October 10 through October 27, 2018), but denied

      his request for credit time for the period spent awaiting conviction and

      sentencing after he was returned to Indiana in January 2019.


[6]   On July 26, 2019, Alvarez filed a motion to correct error. The trial court held a

      hearing on August 8, 2019. During the hearing, Alvarez argued that the federal

      government had been ready to deport him to El Salvador at the time he was

      returned to Indiana at the trial court’s request, and therefore he should receive

      credit toward his Indiana sentence for the time detained here. The State

      reiterated that Alvarez was in custody at all times at the behest of federal


      Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020         Page 4 of 8
      authorities, and therefore he was not entitled to the credit time requested. At

      the conclusion of the hearing, the trial court denied the motion to correct error.

      This appeal ensued.


                                      Discussion and Decision
[7]   Alvarez appeals the trial court’s denial of his motion to correct error. The trial

      court has discretion to grant or deny a motion to correct error, and we reverse

      the court’s decision only for an abuse of discretion. James v. State, 872 N.E.2d

      669, 671 (Ind. Ct. App. 2007). An abuse of discretion occurs when the trial

      court’s decision is against the logic and effect of the facts and circumstances

      before it or if the court has misinterpreted the law. Id.


[8]   Pursuant to the Indiana Penal Code, prisoners receive credit time that is applied

      to reduce their term of imprisonment. Purdue v. State, 51 N.E.3d 432, 436 (Ind.

      Ct. App. 2016). “The time spent in confinement before sentencing applies

      toward a prisoner’s fixed term of imprisonment.” Id. (citation omitted).

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

      Ind. Code § 35-50-6-0.5. “Credit time” is the sum of a person’s accrued time,

      good time credit, and educational credit. Id. A person who: (1) is not a credit

      restricted felon; and (2) is imprisoned for a level 6 felony or a misdemeanor or

      imprisoned awaiting trial or sentencing for a level 6 felony or misdemeanor is

      initially assigned to class A. Ind. Code § 35-50-6-4. 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.


      Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020         Page 5 of 8
      “Because pre-sentence jail time credit is a matter of statutory right, trial courts

      generally do not have discretion in awarding or denying such credit.” Perry v.

      State, 13 N.E.3d 909, 911 (Ind. Ct. App. 2014) (citation omitted).


[9]   Alvarez claims that the trial court improperly declined to give him credit for the

      time he spent in the Hamilton County Jail after he was transported back to

      Indiana by federal authorities pursuant to the writ of habeas corpus

      prosequendum. 1 See Ind. Code § 35-33-10-5 (outlining procedure for securing

      attendance, for purposes of state criminal prosecution, of defendants confined

      in federal institutions). We find our supreme court’s decision in Sweeney v.

      State, 704 N.E.2d 86, 109 (Ind. 1998), cert. denied (1999), instructive on this

      issue. In Sweeney, the defendant was serving a federal sentence when he was

      brought back to Indiana to face pending criminal charges. Following his

      conviction in Indiana, he argued that the trial court erred in denying him credit

      time for his pretrial detention in the Clark County Jail awaiting trial. However,

      as in this case, the defendant in Sweeney was being detained at the behest of

      federal authorities when he was brought back to Indiana to face pending



      1
        As noted by the State, this type of writ “permits one sovereign—called the ‘receiving sovereign’—to
      ‘borrow’ temporarily a person in the custody of another sovereign—called the ‘sending sovereign’—for the
      purpose of prosecuting him.” Jake v. Herschberger, 173 F.3d 1059, 1062 n.1 (7th Cir. 1999). The receiving
      sovereign is then permitted to “perform such acts as indicting, arraigning, trying, and sentencing the person.”
      Id. (citation omitted). “Because the receiving sovereign merely obtains limited jurisdiction over the
      ‘borrowed’ prisoner, the prisoner is still under the jurisdiction of the sending sovereign, and is considered to
      be in the custody of the sending sovereign not the receiving sovereign.” Id.




      Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020                                   Page 6 of 8
       criminal charges. The trial court determined that because the defendant was

       incarcerated for other reasons by federal authorities, he was not entitled to

       credit for the time served in Indiana against his Indiana sentence. Our supreme

       court affirmed that decision, noting that there are two criteria to consider in

       determining whether a defendant has a right to pretrial credit time: (1) pretrial

       confinement (2) which was a result of the criminal charge for which sentence is

       now imposed. Id. (citing Cohen v. State, 560 N.E.2d 1246, 1249 (Ind. 1990)).

       Because the defendant in Sweeney was incarcerated as a result of a federal

       conviction and not due to the charges filed by the State of Indiana, the court

       determined that the defendant was properly denied pretrial credit time. Id.


[10]   In making its decision, the Sweeney court looked to an earlier decision by this

       Court that is even more analogous to Alvarez’s case. The court explained:


               The facts of this case are substantially similar to the facts in Smith
               v. State, 165 Ind. App. 37, 330 N.E.2d 384, 388 (Ind. Ct. App.
               1975). After being released on bail from state charges, defendant
               Smith was convicted for another crime and incarcerated in
               federal prison. The State of Indiana, pursuant to a Writ,
               obtained temporary custody of Smith from federal authorities.
               Smith argued that he should receive credit time for the period
               after Indiana assumed jurisdiction over him. The Court of
               Appeals denied pre-trial credit time because Smith’s
               incarceration “was occasioned by his conviction in federal court,
               and not by reason of the charges in the case at bar.” Smith, 330
               N.E.2d at 388. Additionally, the court noted that the trial court’s
               custody of defendant “was with the permission and on behalf of
               federal officials.” Id.


       Id.

       Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020               Page 7 of 8
[11]   As with the defendants in Sweeney and Smith, Alvarez’s pretrial confinement in

       the Hamilton County Jail was not a result of the criminal charges for which the

       trial court here was imposing sentence. In other words, Alvarez was not subject

       to pretrial/presentence confinement based upon the Indiana charges for which

       he had already posted bond and been released. Rather, Alvarez was in custody

       with the permission and on behalf of the federal authorities who transported

       him to Indiana to face the current charges. 2 Accordingly, Alverez was not

       entitled to credit for the time served after he was returned to Indiana awaiting

       conviction and sentencing. We conclude that the trial court did not abuse its

       discretion in denying Alvarez’s motion to correct error.


[12]   Affirmed.


       May, J., and Pyle, J., concur.




       2
         Alvarez argues that if the current criminal case “would have been a federal case, rather than a state case, he
       would have received credit against his eventual criminal sentence pursuant to federal law.” Appellant’s Br. at
       10 (citing Zavala v. Robert Ives, 785 F.3d 367, 369 (9th Cir. 2015) (holding that where ICE detains alien
       pending potential criminal prosecution, that detention constitutes “official detention” within meaning of 18
       U.S.C. § 3585(b) and alien is accordingly entitled to credit toward criminal sentence). Be that as it may, this
       is not a federal case.



       Court of Appeals of Indiana | Opinion 19A-CR-1906 | April 29, 2020                                  Page 8 of 8
