MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Feb 09 2016, 8:27 am
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
Karen Celestino-Horseman                                 Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Boggess,                                           February 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-681
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G04-1308-FB-57570



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016           Page 1 of 6
                                          Case Summary
[1]   James Boggess appeals the trial court’s failure to award him credit for time

      served as well as good time credit for the ten months he served in pretrial home

      detention. Based on the facts and circumstances of this case, the trial court did

      not abuse its discretion in failing to award Boggess these credits.



                            Facts and Procedural History
[2]   Boggess and William Bowser have known each other for fifty years and live a

      block and a half away from each other on the east side of Indianapolis. On

      August 1, 2013, the two men were drinking alcohol together when they began

      to argue about an incident that occurred between them almost twenty-five years

      ago. The two men became involved in a fist fight, and Bowser knocked down

      Boggess, who went home and contacted the police. After the police left,

      Boggess telephoned his son, Justin, and told the young man to come to

      Boggess’ house. Justin and a friend arrived at Boggess’ house armed with two

      baseball bats and a hammer, and the three men drove to Bowser’s house.

      Bowser was in his bedroom when he heard screaming and the windows of his

      home being broken. He jumped out a window and ran towards a neighbor’s

      house. Boggess, Justin, and Justin’s friend ran after Bowser, caught him on the

      neighbor’s porch, and struck Boggess approximately thirty times before running

      off. Bowers sustained several facial fractures and the vision in his eye was

      permanently impaired.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016   Page 2 of 6
[3]   On September 4, 2013, the State charged Boggess with aggravated battery as a

      class B felony. He was released on bond to electronic monitoring home

      detention on September 11, 2013. Boggess remained on home detention until

      his trial at the end of June 2014. According to Boggess, “[p]retrial home

      detention allowed [him] to continue working so he was able to pay the cost of

      his confinement and was also able to retain private counsel so no public

      defender was appointed to represent him until he was taken into custody and

      imprisoned.” Appellant’s Br. p. 5-6.1 A jury convicted Boggess of the charged

      offense, and Boggess was taken into custody. The trial court sentenced him to

      twelve years, ten years executed and two years in community corrections. The

      trial court also suspended two years of the sentence to probation. The trial

      court awarded Boggess thirty-five days of credit time, which covered the

      periods from September 5 to September 11, 2013, when Boggess was released

      on bond, and June 24 to July 2, 2014, when Boggess was sentenced.                               The trial

      court did not award Boggess any credit time for his time spent on pretrial home

      detention. Boggess appeals the trial court’s failure to award him both credit for

      pretrial time served and good time credit.




      1
        Boggess cites “App. 132” as support for these facts; however, this page of his appendix contains no such
      facts.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016             Page 3 of 6
                                 Discussion and Decision
[4]   At the outset, we note that there is a difference between credit for time served

      and good time credit. Specifically, credit for time served is the credit toward the

      sentence a prisoner receives for the time actually served. Purcell v. State, 721

      N.E.2d 220, 222 (Ind. 1999). Good time credit is the additional credit a

      prisoner receives for good behavior and educational attainment. Id. Boggess

      believes that the trial court should have awarded him both types of credit.

[5]   Under Indiana Code section 35-50-6-4, “[a] person who is not a credit restricted

      felon and who is imprisoned for a crime or confined awaiting trial or sentencing

      is initially assigned to Class I” for the purposes of assigning credit. In Class I, a

      person “earns one (1) day of credit time for each day the person is imprisoned

      for a crime or confined awaiting trial or sentencing.” Ind. Code § 35-50-6-3.

[6]   Because pre-sentence jail-time credit is a matter of statutory right, trial courts

      generally do not have discretion in awarding or denying credit. Molden v. State,

      750 N.E.2d 448, 449 (Ind. Ct. App. 2001). However, those sentencing

      decisions not mandated by statute are within the discretion of the trial court and

      will be reversed only upon a showing of abuse of that discretion. Id. An abuse

      of discretion occurs when the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it. Hoglund v. State, 962 N.E.2d

      1230, 1237 (Ind. 2012). Because there is no statute that addresses credit for

      time served while on pretrial home detention, we will review the trial court’s

      decision for an abuse of discretion. Molden, 750 N.E.2d at 449.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016   Page 4 of 6
[7]   In Purcell, 721 N.E.2d at 220, 224 n.6, the Indiana Supreme Court, while

      acknowledging that the issue was not directly before it, concluded that a trial

      court was within its discretion to deny a defendant credit toward his sentence

      for pretrial time served on home detention. The Court explained that absent

      legislative direction, a defendant is only entitled to credit toward a sentence for

      pretrial time served in a prison, jail, or other facility that imposes substantially

      similar restrictions upon personal liberty. Id.; see also Molden, 750 N.E.2d at 451

      (concluding that time spent in pretrial home detention is not equivalent to

      pretrial time served in a prison or jail and that pretrial home detainees are not

      entitled as a matter of law to receive credit for time served on home detention

      toward any eventual sentence).

[8]   Here, Boggess has not provided any evidence that the terms of his home

      detention imposed restrictions upon his personal liberty substantially similar to

      a prison. Rather, according to Boggess, the terms of his home detention

      allowed him to continue working. Appellant’s Br. p. 5. Because the terms of

      Boggess’ home detention did not impose substantial restrictions upon his

      personal liberty, the trial court did not abuse its discretion in failing to award

      him credit for time served on home detention.2, 3




      2
        To the extent Boggess argues that the trial court abused its discretion in failing to award him good time
      credit, we note that it is not possible for the trial court to award good time credit where there is no credit
      awarded for time actually served. This is because there is no initial credit on which to base the additional
      credit. We find no abuse of the trial court’s discretion.
      3
        Boggess also asks us to “encourage the Indiana Supreme Court to reconsider its decision in State of Indiana
      v. Purcell, 721 N.E.2d 220, 224, n.6 (1993).” We are bound by the decisions of the Indiana Supreme Court

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016                Page 5 of 6
[9]   Affirmed.

      Bailey, J., and Crone, J., concur.




      until the law is either changed by that Court or by legislative enactment. Dragon v. State, 774 N.E.2d 103, 107
      (Ind. Ct. App. 2002), trans. granted, then grant of trans. vacated.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016             Page 6 of 6
