                                                                                         FILED
      MEMORANDUM DECISION
                                                                                    Dec 06 2017, 9:16 am

      Pursuant to Ind. Appellate Rule 65(D), this                                        CLERK
                                                                                     Indiana Supreme Court
      Memorandum Decision shall not be regarded as                                      Court of Appeals
                                                                                          and Tax Court
      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
      Joel C. Wieneke                                          Curtis T. Hill, Jr.
      Wieneke Law Office LLC                                   Attorney General of Indiana
      Brooklyn, Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dillon Martin,                                           December 6, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               32A01-1610-CR-2472
              v.                                               Appeal from the Hendricks Superior
                                                               Court.
                                                               The Honorable Mark A. Smith,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               32D04-1307-FC-91




      Darden, Senior Judge


                                       Statement of the Case
[1]   Dillon Martin appeals the sentence the trial court imposed after revoking his

      placement in a work release program. We reverse and remand.



      Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017          Page 1 of 7
                                                    Issue
[2]   Martin presents one issue for our review, which we restate as: whether Martin

      was improperly divested of good time credit he earned while in a community

      corrections work release program.


                                   Facts and Procedural History
[3]   On July 26, 2013, the State charged Martin with possession of a narcotic drug
                                   1
      as a Class C felony. Pursuant to a plea agreement, Martin pleaded guilty to the

      charge on May 20, 2014 and was sentenced to 1,460 days with 730 days

      suspended to probation. Martin was to serve his executed time on home

      detention.


[4]   Shortly thereafter on September 12, 2014, the State filed a notice of probation

      violation for a failed drug screen in which Martin tested positive for morphine.

      He admitted to the violation and was sentenced to 120 days at the Department

      of Correction (DOC) with credit for 40 days plus 40 days of good time credit.

      Martin was to complete the balance of his original home detention sentence

      upon release from the DOC.


[5]   The State again filed a notice of probation violation on February 25, 2015,

      alleging that Martin failed another drug screen by testing positive for marijuana.

      Martin admitted to violating the conditions of his home detention, and the




      1
          Ind. Code § 35-48-4-6 (2006).

      Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 2 of 7
      court sentenced him to 216 days at the DOC with credit for 27 actual days and

      27 days of good time credit.


[6]   On November 9, 2015, the State filed a notice of probation violation alleging

      Martin committed an additional criminal offense by unlawfully possessing a

      syringe. Additionally, on December 7, 2015, the State filed yet another notice

      of probation violation alleging Martin had committed the additional offenses of

      possession of paraphernalia, possession of paraphernalia with a prior, and

      possession of marijuana. In April 2016, Martin admitted to the violation that

      alleged he had committed three new drug offenses, and the court sentenced him

      to serve 568 days on work release and terminated his probation as unsuccessful.


[7]   Subsequently, on September 6, 2016, the work release facility filed documents

      with the court notifying it that Martin had violated the rules in numerous

      instances and requesting that he be terminated from the work release program

      and immediately removed from the facility. The documents reflected that on

      May 15, 2016, Martin was written up and sanctioned for possessing tobacco in

      the secured area. On July 18, 2016, Martin was written up for disorderly

      conduct and was penalized by a loss of 30 days of good time credit. The

      following day, Martin was again written up for disorderly conduct and was

      sanctioned by a loss of 60 days of good time credit. On August 24, 2016,

      Martin was written up and sanctioned for using morphine without a

      prescription based upon a failed drug screen. Consequently, he lost an

      additional 30 days of good time credit. Finally, on September 2, 2016, as a

      result of another failed drug screen, Martin was found to have used codeine and

      Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 3 of 7
       morphine without a prescription. In lieu of sanctions, the work release

       department requested that Martin’s work release be revoked.


[8]    The court held an evidentiary hearing on the State’s notice of work release

       violation on September 26, 2016. Martin admitted to the violation, and the

       court revoked his work release placement and sentenced him to 568 days in the

       DOC with credit for 155 actual days served and 35 days of good time. Martin

       now appeals.


                                    Discussion and Decision
[9]    Martin contends he was wrongly deprived of good time credit when, following

       the revocation of his work release placement, he was ordered to serve 568 days

       with credit for 155 actual days and only 35 days of good time credit.


[10]   Some statutory background will be helpful to our discussion. A defendant

       placed directly in a local community corrections program is entitled to earn

       good time credit. Ind. Code § 35-38-2.6-6(c) (2015). The amount of credit time

       earned depends on the class of the offender. See Ind. Code § 35-50-6-3 (2015).

       When it comes to dealing with an offender who is found to have violated the

       terms of his placement, the legislature has given community corrections

       directors four alternatives. The director may (1) change the terms of the

       placement; (2) continue the placement; (3) reassign the offender to a different

       program; or (4) request that the court revoke the placement and commit the

       offender to jail or the DOC for the remainder of his sentence. Ind. Code § 35-

       38-2.6-5 (2015).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 4 of 7
[11]   Here, Martin served 155 days on work release. Thus, Martin earned 155 days

       of good time credit, and the parties present no disagreement as to the

       calculation of Martin’s earned good time credit. However, when Martin

       violated the work release rules, the director deducted days from Martin’s earned

       good time credit instead of utilizing the four alternatives set forth in Indiana

       Code section 35-38-2.6-5. The director’s affidavit in support of the work release

       facility’s petition to terminate Martin’s work release placement indicates that

       Martin was deprived of 30 days of good time credit on July 18, 2016, 60 days of

       good time credit on July 19, 2016, and an additional 30 days of good time

       credit on August 24, 2016. This amounts to 120 days of good time credit that

       was taken away by the work release director due to Martin’s conduct violations.

       This was later reflected in the trial court’s order revoking his work release

       placement and ordering him to serve the remainder of his sentence in the DOC.

       Martin asserts the director lacked the authority to take away his good time

       credit.


[12]   Although our legislature has provided for the deprivation of good time credit

       for offenders directly placed in community corrections programs, the statute

       does not expressly give the directors of these programs such authority. Rather,

       the statute provides that an offender who, upon direct placement, is in a

       community corrections program may be deprived of earned good time credit

       “as provided under rules adopted by the department of correction under IC 4-

       22-2.” Ind. Code § 35-38-2.6-6(d) (2015). The DOC, as of yet, has not adopted

       any rules in this regard. Thus, as our Supreme Court very recently determined,


       Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 5 of 7
       while this provision gives the DOC discretion to promulgate rules related to the

       deprivation of earned credit time, including the delegation of such authority to

       other entities, for reasons not known to us, the DOC has not done so. Shepard

       v. State, No. 84S01-1704-CR-190 (Ind. Oct. 20, 2017) (holding that community

       corrections director lacked authority to deprive defendant of earned good time

       credit and reversing trial court’s good time credit determination that did not

       include good time credit defendant earned while in work release program).

       Accordingly, the director of work release in this case was without authority to

       deprive Martin of earned credit time.


[13]   In support of the director’s actions in this case, the State cites Indiana Code

       subsection 35-50-6-5(a)(2) and (3) (2015). Subsection (a) provides that an

       offender may be deprived of good time credit for a violation of a rule of a penal

       facility or a community corrections program. However, a panel of this Court

       has previously held that deprivation of earned credit time for offenders in

       community corrections programs is governed by Indiana Code section 35-38-

       2.6-6(d) (rules adopted by the DOC) and not by Indiana Code chapter 35-50-6

       (statutes that establish procedures for release from imprisonment and credit

       time). See Campbell v. State, 716 N.E.2d 577 (Ind. Ct. App. 1999) (op. on reh’g).


                                                Conclusion
[14]   For the reasons stated, we conclude the work release director lacked the

       authority to deprive Martin of any earned good time credit. Accordingly, we

       reverse the trial court’s good time credit determination and order the trial court


       Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 6 of 7
       on remand to recalculate Martin’s good time credit to include the 120 days he

       earned while serving in the work release program.


[15]   Reversed and remanded with instructions.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017   Page 7 of 7
