                                                                                FILED
                                                                            Jan 30 2017, 9:23 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
      Wieneke Law Office LLC                                     Attorney General of Indiana
      Brooklyn, Indiana
                                                                 Richard C. Webster
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Richard D. Shepard,                                       January 30, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A01-1606-CR-1309
              v.                                                Appeal from the Vigo Superior
                                                                Court.
                                                                The Honorable David R. Bolk,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 84D03-1202-FB-468




      Sharpnack, Senior Judge



                                       Statement of the Case

[1]   Richard D. Shepard appeals the sentence the trial court imposed after revoking

      his placement in a county community corrections program. We affirm.




      Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017                   Page 1 of 6
                                                      Issue
[2]   Shepard raises one issue, which we restate as: Whether the trial court erred in

      denying Shepard good time credit for days served in community corrections.


                                Facts and Procedural History
[3]   Shepard pleaded guilty to dealing in cocaine, a Class B felony. On May 16,

      2013, the trial court imposed a sentence of eleven years. On July 30, 2015,

      Shepard filed a motion for sentence modification. The State did not object. On

      October 1, 2015, the trial court granted Shepard’s motion, ordering him to serve

      his sentence on work release through the Vigo County Community Corrections

      program.


[4]   Shepard was released from the Department of Correction and began serving his

      sentence through the community corrections program. He subsequently

      committed several violations of the program’s rules, including several incidents

      where he left the facility, allegedly to go to work, but was not needed at work

      on those days and did not satisfactorily account for his time. As a result,

      program officials held several administrative hearings and repeatedly took away

      portions of Shepard’s earned credit time as punishment, ultimately depriving

      him of a total of 225 days.


[5]   On April 20, 2016, the State filed a motion to revoke Shepard’s probation and

      placement in community corrections. The trial court held an evidentiary

      hearing and concluded that Shepard had violated the conditions of probation.



      Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017   Page 2 of 6
      The court ordered Shepard to serve the balance of his sentence in the

      Department of Correction.


[6]   In the course of calculating Shepard’s credit time, the court noted that Shepard

      was entitled to credit for 190 days served at the work release center from

      October 15, 2015 through April 21, 2016. The court further noted Shepard

      “lost earned credit time of two hundred twenty-five (225) days while at the

      Work Release Center.” Appellant’s App. p. 243. As a result, the court’s

      abstract of judgment reflects an accrued time credit of 190 days, but zero days

      of good time credit, for days served on work release. This appeal followed.


                                     Discussion and Decision
[7]   Shepard does not challenge the trial court’s revocation of his probation or the

      court’s determination that he should serve the balance of his suspended

      sentence. Rather, Shepard argues the trial court erred by denying him 190 days

      of good time credit for the days he served in the community corrections

      program. The State responds that the trial court properly excluded good time

      credit from Shepard’s sentence because he repeatedly violated the program’s

      rules and the program, not the court, deprived him of 225 days for those
                    1
      violations.




      1
       The State also argues that Shepard waived this claim by failing to object at the sentencing hearing. We
      disagree and choose to address Shepard’s claim on the merits.

      Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017                       Page 3 of 6
[8]    Offenders who are placed in a community corrections program earn credit time

       similar to offenders who are housed in the Department of Correction. Ind.

       Code § 35-38-2.6-6(c) (2015). In general, credit time is a matter of statutory

       right. Senn v. State, 766 N.E.2d 1190, 1201 (Ind. Ct. App. 2002). Nevertheless,

       “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.” Ind. Code § 35-38-

       2.6-6(d). Furthermore, the Department of Correction may also take away

       credit time from a person serving a sentence in a community corrections

       program. See Ind. Code §§ 11-11-5-1 (2010), 11-11-5-3 (2015).


[9]    Shepard argues that the Vigo County Community Corrections program lacked

       the authority to revoke his good time credit. We disagree. In Indiana,

       community corrections programs may be managed by counties as well as the

       Department of Correction. Ind. Code § 35-38-2.6-2 (1994). Further, Indiana

       Code section 35-38-2.6-6 provides that a person’s good time credit may only be

       taken away in compliance with rules adopted by the Department of Correction,

       but it does not follow that only the Department, and not local community

       corrections programs, may take away good time credit.


[10]   In addition, the record does not indicate that the Vigo County Community

       Corrections Program failed to comply with procedures designed to provide due

       process. To the contrary, at the evidentiary hearing on the State’s petition to


       Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017   Page 4 of 6
       revoke, a case manager for the community corrections program testified that

       Shepard received an administrative evidentiary hearing each time the program

       claimed he had violated the rules and sought to take away good time credit. In

       any event, it is too late for Shepard to challenge the program’s disciplinary

       decisions, because any appeals should have occurred when the decisions were

       made to revoke portions of his good time credit.


[11]   The trial court, in refusing to give Shepard good time credit for his incarceration

       in the community corrections program, merely took account of the program’s

       disciplinary decisions and gave them effect in the sentencing order. Shepard

       cites Pharr v. State, 2 N.E.3d 10 (Ind. Ct. App. 2013), to claim that the trial

       court’s decision was inappropriate, but that case is distinguishable. In Pharr,

       the sentencing court noted the defendant had repeatedly violated the terms of

       her placement in a community corrections program and, independent of any

       decision by the program, ordered that she would not receive good time credit

       for a portion of the time she served in community corrections. A panel of this

       Court determined that only the Department of Correction, not the trial court,

       was authorized to deprive a defendant of credit time earned while in a

       community corrections program, and reversed the trial court. See id. at 12

       (discussing Campbell v. State, 714 N.E.2d 678 (Ind. Ct. App. 1999) (overruled in

       part on other grounds by Robinson v. State, 805 N.E.2d 783 (Ind. 2004)).



       Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017   Page 5 of 6
[12]   In the current case, the trial court did not choose to deprive Shepard of good

       credit time as a sua sponte sentencing consideration but instead acknowledged

       the community correction program’s disciplinary decisions and incorporated

       them into the final judgment. Requiring the trial court to ignore the program’s

       deprivation of Shepard’s credit time for his violations of the rules would have

       effectively nullified the program’s disciplinary decisions. Pharr is

       distinguishable and does not compel reversal of the trial court’s decision.


                                                 Conclusion
[13]   For the foregoing reasons, we affirm the judgment of the trial court.


[14]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 84A01-1606-CR-1309 | January 30, 2017   Page 6 of 6
