                                                 Jul 22 2014, 8:54 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

R. PATRICK MAGRATH                           GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                   Attorney General of Indiana
Madison, Indiana
                                             CHANDRA K. HEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

STEVEN R. PERRY,                             )
                                             )
      Appellant-Defendant,                   )
                                             )
              vs.                            )      No. 39A01-1312-CR-517
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE JEFFERSON SUPERIOR COURT
                          The Honorable Alison T. Frazier, Judge
                             Cause No. 39D01-1203-FD-332,
                                  39D01-1306-FD-509



                                    July 22, 2014


                             OPINION - FOR PUBLICATION



ROBB, Judge
                                         Case Summary and Issue

        Steven R. Perry appeals the trial court’s denial of his motion for credit time for time

spent on electronic monitoring as a drug court program participant. Perry frames the issue as

whether Indiana jurisprudence should be modified to adopt a single analysis for awarding

credit time for periods of electronic monitoring served regardless of the pretrial or post-

conviction status of the defendant. This, rather, is a case of whether the trial court abused its

discretion in denying credit time to a person who failed to comply with conditions for

participating in a drug court program. Concluding the trial court did not abuse its discretion,

we affirm.

                                      Facts and Procedural History

        On March 19, 2012, Perry was charged with residential entry, a Class D felony, and

public intoxication, a Class B misdemeanor. In September 2012, Perry entered into a plea

agreement where Perry agreed to plead guilty to both charges. Pursuant to the plea

agreement, the court would defer judgment of conviction and sentencing if Perry successfully

completed a drug court program. The same day, Perry executed a drug court participation

agreement. Over the course of a year, Perry was sanctioned by the drug court three times for

violating his participation agreement.1

        Then, on June 3, 2013, Perry was charged with intimidation, a Class D felony, and

resisting law enforcement, a Class A misdemeanor. In September 2013, Perry pleaded guilty

to one count of intimidation with a two year sentence, to be fully executed. Perry also


        1
           His three sanctions were ten hours of community service, writing a one-page paper as to why therapy was
important to recovery, and five hours of community service.

                                                        2
admitted to violating the terms of the drug court program and agreed to terminate his

participation. As a result of the termination, the court entered a judgment of conviction for

residential entry and public intoxication pursuant to the September 2012 plea agreement.

The court sentenced Perry to two years for residential entry and 180 days for public

intoxication to be served concurrently. Perry requested 127 days of credit time applied to his

residential entry and public intoxication sentence for the time he was on electronic

monitoring as a condition of the drug court program. The trial court denied this request.

Perry filed a motion to correct error based on the denial of the credit time; this motion was

denied. Perry now appeals.

                                  Discussion and Decision

       “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.” 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 if the decision is “clearly

against the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d

482, 490, (Ind. 2007), clarified on rehg, 875 N.E.2d 218 (citation omitted). Indiana Code

chapter 33-23-16, concerning problem solving courts, is silent as to whether a drug court

participant is entitled to credit time for time spent on electronic monitoring.

       Perry argues that once he entered the program, he had only two options: complete the

program or go to jail. Perry contends his participation in drug court, from the standpoint of

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electronic monitoring, is no different than if he had been sentenced directly to a community

corrections program; his failure to successfully complete either the drug court program or a

community corrections program would be the same: a term of imprisonment.

       A panel of this court found a similar argument persuasive in House v. State, 901

N.E.2d 598 (Ind. Ct. App. 2009). In 2007, House was a drug court participant in Madison

County. He was imprisoned and put on work release for various violations of the drug court

agreement. Once his participation in the program was terminated for violating rules, he

argued for credit time under Indiana Code section 35-50-6-3(a). This court held that “[g]iven

the requirements of drug court and the punishment imposed for violating those requirements,

we find participating in a drug court analogous to being on probation for purposes of

receiving credit time under Indiana Code section 35-50-6-3.” Id. at 601.

       In 2010, after House was decided, our legislature revised the code provisions relating

to problem solving courts. Instead of drug courts being organized under Title 12 relating to

human services and addiction services, now all problem solving courts, including drug

courts, are established and structured by the provisions in Indiana Code chapter 33-23-16

entitled “Problem Solving Courts.”

       After the change in the statute, a different panel of this court decided Meadows v.

State, 2 N.E.3d 788 (Ind. Ct. App. 2014). Meadows challenged the trial court’s denial of his

request for credit time for time he spent on electronic monitoring as part of a drug court

program. Meadows admitted to violating the conditions of his drug court agreement, but

argued the time he spent on electronic monitoring should count against his imposed sentence.

This court reasoned that statutes governing electronic monitoring as a condition of probation

                                             4
were inapplicable to a person who voluntarily participated in a drug court program. Id. at

792. Further, credit time statutes that apply to persons convicted or sentenced were

inapplicable since Meadows was neither convicted of a crime nor sentenced at the time he

participated in electronic monitoring. Id. Ultimately, this court decided it was within the

trial court’s discretion to award or deny credit time spent on electronic monitoring while

participating in a deferral program. Id. at 794.

         We find the reasoning in Meadows persuasive.2 A participant in drug court is not

awaiting trial or awaiting sentencing under Indiana Code section 35-50-6-3. Though Perry

expresses concern this court is creating a new, third category of offenders that is not

contemplated by the credit time statute, we disagree. It is well-established that there are

others who fall outside the purview of the credit time statute: a person on pretrial home

detention or electronic monitoring.3 This category of alleged offenders is not included in the

credit time statute, and the distinction has been found permissible, even in the face of

constitutional challenges. See Purcell v. State, 721 N.E.2d 220, 223 n.5 (Ind. 1999) (noting

that a trial court is within its discretion to deny a defendant credit toward sentence for pretrial


         2
           We note another important distinction between House and Meadows: House was actually imprisoned and
placed in a work release program as sanctions for violating his drug court agreement, while Meadows argued for credit
time for time spent on electronic monitoring that simply was a condition of the program.
          3
            Perry urges us to hold that “a person placed on home detention / electronic monitoring as a condition of pretrial
release should receive credit time for the time they spent awaiting trial because home detention is incarceration and
incarceration entails credit time.” Amended Appellant’s Brief at 8. The conclusion that home detention is incarceration
and incarceration entails credit time stems from Perry’s reading of Peterink v. State, 971 N.E.2d 735, 737 (Ind. Ct. App.
2012) opinion aff’d in part, vacated in part, 982 N.E.2d 1009 (Ind. 2013). In Peterink, an ambiguity existed as to whether
Indiana Code section 35-38-2.5-5, when read in conjunction with Indiana Code section 35-50-6-6, permits a person
confined on home detention as a condition of probation to earn good time credit. “Good time credit” is not the same as
“credit time” for which Perry argues. There are two different “time credits” that a defendant may earn: “(1) the credit
toward the sentence a prisoner receives for time actually served, and (2) the additional credit a prisoner receives for good
behavior and educational attainment. . . . [W]e refer to the former as ‘credit for time served’ and the latter as ‘good time
credit.’” Purcell v. State, 721 N.E.2d 220, 222. Nothing in Peterink leads us to overturn the rule that a person placed on

                                                             5
time served on home detention); Lewis v. State, 898 N.E.2d 1286, 1290-91 (Ind. Ct. App.

2009) (holding that distinguishing between a person on pretrial detention and post-sentence

home detention does not violate the Equal Protection Clause of the United States Constitution

or the Equal Privileges and Immunities Clause of the Indiana Constitution), trans. denied;

Molden, 750 N.E.2d at 450-51 (holding the trial court acted within its discretion when it

denied the defendant sentence credit for time spent in pretrial home detention). We also

disagree with the contention that it is against our statutory scheme for a defendant not to have

received a sentence and simultaneously not be awaiting sentencing. Indeed, this is the exact

function of the deferral statute in problem solving courts: to avoid entry of judgment (and

subsequent sentencing) contingent on successful completion of the drug court program. Ind.

Code § 33-23-16-14.

         Perry does acknowledge the difference between successful completion of a drug court

program and a community corrections program. After successfully completing the drug court

program, the charges against Perry would be dropped and he would have no conviction on

his record from the related charges. Ind. Code § 33-23-16-14(c). After successfully

completing a community corrections program sentence following a conviction, the conviction

against Perry would remain on his record. A participant “receives considerable benefits, in

return for which he give[s] up a plethora of substantive claims and procedural rights.”

House, 901 N.E.2d at 600 (citations omitted) (internal quotation marks omitted). There are

many positive results for a defendant who successfully completes a drug court program, but


home detention as a condition of pretrial release (and by extension, a drug court participant) does not earn credit time as
of right.

                                                            6
there are also negative consequences for failing. Not receiving credit time for time spent on

electronic monitoring while participating in a drug court program is potentially one of those

negative consequences.

       Here, Perry violated the conditions of his drug court agreement three times, and was

sanctioned three times, before the fourth violation of committing another criminal offense. It

was after Perry pleaded guilty to another criminal offense that he was finally terminated from

the drug court program. The trial court gave Perry multiple chances before finally

terminating him from the program, and did not abuse its discretion in denying the request for

credit time.

                                         Conclusion

       Concluding the trial court did not abuse its discretion in denying Perry’s request for

credit time for time spent on electronic monitoring as a drug court participant, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




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