                                                                               FILED
                                                                           Mar 15 2019, 9:23 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                           Curtis T. Hill, Jr.
      Bargersville, Indiana                                     Attorney General

                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jeffery Thompson,                                         March 15, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1947
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Helen W. Marchal,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                49G15-1604-F6-13322



      Crone, Judge.


                                              Case Summary
[1]   Jeffery Thompson appeals the trial court’s denial of his motion to credit his

      sentence with 240 days that he served on pretrial home detention. The State

      Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019                           Page 1 of 9
      does not oppose the motion. We conclude that the trial court erred in denying

      Thompson’s motion and therefore reverse and remand with instructions to

      credit that time to Thompson’s sentence.


                                  Facts and Procedural History
[2]   In April 2016, the State charged Thompson with one count of level 6 felony

      operating while intoxicated endangering another person and one count of level

      6 felony operating while intoxicated with an alcohol concentration equivalent

      of .15 or more. On June 26, 2018, pursuant to a written plea agreement,

      Thompson agreed to plead guilty to the first charge. The State agreed to

      dismiss the second charge and all the charges that Thompson had pending in

      cause number 49G15-1512-F6-45853 and cause number 49G15-1701-F6-3764

      (“Cause 3764”). In Cause 3764, Thompson had been ordered to serve pretrial

      home detention from January 31, 2017, through September 28, 2017, a total of

      240 days. He completed the home detention with no violations. Thompson

      and the State agreed to a total sentence of 730 days and also agreed that the

      credit time earned in Cause 3764 would be applied to that sentence.


[3]   The trial court accepted the plea agreement and sentenced Thompson to 730

      days, with ten days executed and the rest suspended to probation. The court

      awarded Thompson sixty days of good time credit for his pretrial home

      detention in Cause 3764. See Ind. Code § 35-50-6-3.1(f) (providing that a

      person placed on pretrial home detention “earns one (1) day of good time credit

      for every four (4) days the person serves on pretrial home detention awaiting

      trial.”). Thompson requested additional credit for the 240 days that he actually
      Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019       Page 2 of 9
      served on home detention. The State did not object to this request, and the trial

      court took it under advisement. On June 27, 2018, Thompson filed a motion to

      apply the 240 days against his sentence, which the trial court summarily denied.

      This appeal ensued.


                                      Discussion and Decision
[4]   Thompson contends that the trial court erred in denying his motion for credit

      for time that he served on pretrial home detention. The State does not oppose

      Thompson’s motion. For the reasons given below, we agree with Thompson.


[5]   “To say that the case law has been murky on the issue of credit time for home

      detainees would be an understatement.” Barker v. State, 994 N.E.2d 306, 313

      (Ind. Ct. App. 2013), trans. denied (2014). Home detention may be imposed

      before trial, as a post-conviction placement in a community corrections

      program, or as part of probation. Id. In Capes v. State, 634 N.E.2d 1334, 1335

      (Ind. 1994), our supreme court considered whether the defendant was entitled

      to credit for time served in pretrial home detention. At that time, Indiana Code

      Section 35-50-6-4 provided, “A person imprisoned for a crime or imprisoned

      awaiting trial or sentencing is initially assigned to Class I.” And Indiana Code

      Section 35-50-6-3(a) provided, “A person assigned to Class I earns one (1) day

      of credit time for each day he is imprisoned for a crime or confined awaiting

      trial or sentencing.” For the Capes court, “[t]he essential questions [were]

      whether [Capes] was a member of Class I and whether in-home detention

      constitu[ed] ‘confinement’ for purposes of accruing” credit for time served. 634


      Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019        Page 3 of 9
      N.E.2d at 1335. The court answered both questions in the affirmative, noting

      that the legislature had specifically provided credit for time served to post-

      conviction home detainees in community corrections programs and that there

      was “no good reason” to treat pretrial home detainees differently. See id. (citing

      Ind. Code § 35-38-2.6-6, which stated, “A person who is placed in a community

      corrections program under this chapter is entitled to earn credit time under IC

      35-50-6.”).


[6]   Three years later, the court was confronted with the same issue in Franklin v.

      State, 685 N.E.2d 1062 (Ind. 1997). This time, however, the court reached a

      different result based on the legislature’s post-Capes amendment to Section 35-

      38-2.6-6, which stated, “A person who is placed in a community corrections

      program under this chapter is entitled to earn credit time under IC 35-50-6 unless

      the person is placed in the person’s home.” (Emphasis added.) The Franklin court

      concluded “that the amendment to the post-conviction home detention statute

      evinces legislative intent that credit time [i.e., credit for time served] can no

      longer be awarded to pretrial home detainees.” 685 N.E.2d at 1064.


[7]   Just two years later, in Purcell v. State, 721 N.E.2d 220 (Ind. 1999), the court

      determined that the “credit time” mentioned in Section 35-38-2.6-6 was actually

      “good time credit” (i.e., the “additional credit a prisoner receives for good

      behavior and educational attainment”) and not credit for time served, id. at 222,

      and therefore overruled Franklin to the extent it held that the statute “prohibits

      an offender sentenced to home detention under a community corrections



      Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019           Page 4 of 9
      program from earning credit for time served[.]” Id. at 224. The court went on

      to say,


                We recognize that this conclusion casts doubt on the continued
                viability of the holding in Franklin itself, to wit, that pre-trial time
                served on home detention does not count as credit toward a
                sentence subsequently imposed. Although not directly before us
                today, we have revisited the question and conclude that a trial
                court is within its discretion to deny a defendant credit toward
                sentence for pre-trial time served on home detention. Absent
                legislative direction, we believe that a defendant is only entitled
                to credit toward sentence for pre-trial time served in a prison, jail
                or other facility which imposes substantially similar restrictions
                upon personal liberty.


      Id. at n.6.


[8]   Many legislative changes have been made in the nearly two decades since

      Purcell. For example, the legislature has specifically defined the various types of

      “credit” available to imprisoned or confined persons. Enacted in 2015, Indiana

      Code Section 35-50-6-0.5 provides,


                The following definitions apply throughout this chapter:

                (1) “Accrued time” means the amount of time that a person is
                imprisoned or confined.

                (2) “Credit time” means the sum of a person’s accrued time,
                good time credit, and educational credit.

                (3) “Educational credit” means a reduction in a person’s term of
                imprisonment or confinement awarded for participation in an
                educational, vocational, rehabilitative, or other program.

      Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019                   Page 5 of 9
               (4) “Good time credit” means a reduction in a person’s term of
               imprisonment or confinement awarded for the person’s good
               behavior while imprisoned or confined.


[9]    The legislature has also revamped the statutes governing credit time classes.

       Persons convicted before July 1, 2014, were assigned to one of four classes: I,

       II, III, or IV. Ind. Code § 35-50-6-3. Persons convicted after June 30, 2014,

       have been assigned to one of four new classes: A, B, C, or D. Ind. Code § 35-

       50-6-3.1. And, effective July 1, 2016, persons “placed on home detention

       awaiting trial,” such as Thompson, have been assigned to Class P. Ind. Code §

       35-50-6-4(i). “This subsection does not apply to any other person placed on

       home detention[,]” and “[a] person assigned to Class P may not be reassigned

       to another credit time class while the person is on pretrial home detention

       awaiting trial.” Id.


[10]   In addition, the legislature has amended Section 35-38-2.6-6, which now

       provides,


               (a) As used in this subsection, “home” means the actual living
               area of the temporary or permanent residence of a person.

               (b) A person confined on home detention in a community
               corrections program receives one (1) day of accrued time for each
               day the person is confined on home detention, plus any earned
               good time credit.

               (c) In addition to accrued time under subsection (b), a person
               who is placed in a community corrections program under this
               chapter is entitled to earn good time credit under IC 35-50-6-3

       Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019          Page 6 of 9
               and IC 35-50-6-3.1. A person confined on home detention as
               part of a community corrections program may not earn
               educational credit under IC 35-50-6-3.3.

               (d) A person who is placed in a community corrections program
               under this chapter may be deprived of earned good time credit as
               provided under rules adopted by the department of correction
               under IC 4-22-2.


       Thus, the statute allows post-conviction home detainees in community

       corrections programs to earn both accrued time (calculated at a day for a day)

       and good time credit.


[11]   And finally, Section 35-50-6-3.1 now provides,


               (a) This section applies to a person who commits an offense after
               June 30, 2014.

               (b) 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.

               (c) A person assigned to Class B earns one (1) day of good time
               credit for every three (3) days the person is imprisoned for a
               crime or confined awaiting trial or sentencing.

               (d) A person assigned to Class C earns one (1) day of good time
               credit for every six (6) days the person is imprisoned for a crime
               or confined awaiting trial or sentencing.

               (e) A person assigned to Class D earns no good time credit.

               (f) A person assigned to Class P earns one (1) day of good time
               credit for every four (4) days the person serves on pretrial home
               detention awaiting trial.
       Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019           Page 7 of 9
[12]   Thompson correctly observes that, “[d]espite the statute’s silence, every other

       credit time classification listed in [Section 35-50-6-3.1] earns accrued time in

       addition to good time credit.” Appellant’s Br. at 7 (citing Abney v. State, 79

       N.E.3d 942, 955 (Ind. Ct. App. 2017) (defendant assigned to Class B received

       295 days of accrued time for 295 days of confinement in jail awaiting trial and

       sentencing)). He argues that “[i]t was unnecessary for the legislature to

       specifically state that a person in Class P receives accrued time because like

       those in the other credit time classes, it is implied.” Id. at 8. He also argues

       that “[i]f the legislature intended to treat those on pretrial home detention and

       those incarcerated awaiting trial differently for purposes of accrued time, it

       would have so specified.” Id. We agree on both counts. See Abney v. State, 811

       N.E.2d 415, 419 (Ind. Ct. App. 2004) (“It is just as important to recognize what

       the statute does not say as it is to recognize what it does say.”), adopted by 821

       N.E.2d 375 (Ind. 2005).


[13]   Thompson further observes that he “was unable to find any situation in the

       Indiana Code where a defendant can earn ‘good time credit’ without also

       earning accrued time.” Id. at 8. We were also unable to find any such

       situation, which leads us to conclude that the legislature could not have

       intended such an absurd result. See Study v. State, 24 N.E.3d 947, 956 (Ind.

       2015) (courts will not presume that legislature intended statutory language to

       bring about an absurd result), cert. denied. Finally, we point out that there is no

       indication that the legislature intended to treat pretrial and post-conviction

       home detainees differently under the current statutory scheme.


       Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019          Page 8 of 9
[14]   Based on the numerous substantive legislative changes regarding credit time

       that have been enacted since Purcell, we conclude that Purcell is no longer good

       law with respect to accrued time for pretrial home detention. See Horn v.

       Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005) (noting that supreme

       court precedent is binding on this Court “until it is changed either by that court

       or by legislative enactment.”) (quoting Dragon v. State, 774 N.E.2d 103, 107

       (Ind. Ct. App. 2002), trans. vacated). We hold that a person placed on pretrial

       home detention earns accrued time (calculated at a day for a day) pursuant to

       the unmistakable implications of Section 35-50-6-3.1 and that the trial court has

       no discretion to deny it. See Maciaszek v. State, 75 N.E.3d 1089, 1092 (Ind. Ct.

       App. 2017) (“Good time credit under [Section 35-50-6-3] is a ‘matter of

       statutory right, not a matter of judicial discretion.’”) (quoting Weaver v. State,

       725 N.E.2d 945, 948 (Ind. Ct. App. 2000)), trans. denied; see also Purdue v. State,

       51 N.E.3d 432, 436 (Ind. Ct. App. 2016) (“Credit time statutes, as remedial

       legislation, should be liberally construed in favor of those benefitted by the

       statute.”). Therefore, we reverse the trial court’s denial of Thompson’s motion

       and remand with instructions to apply the 240 days of accrued time to his

       sentence.


[15]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1947 | March 15, 2019           Page 9 of 9
