      MEMORANDUM DECISION
                                                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D),                                      Nov 20 2017, 8:41 am
      this Memorandum Decision shall not be                                            CLERK
      regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                      Court of Appeals
      court except for the purpose of establishing                                      and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


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



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Kristopher W. Bunting,                                  November 20, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              84A05-1701-CR-97
              v.                                              Appeal from the
                                                              Vigo Superior Court
      State of Indiana,                                       The Honorable
      Appellee-Plaintiff.                                     John T. Roach, Judge
                                                              Trial Court Cause Nos.
                                                              84D01-1212-FD-3827
                                                              84D01-1407-FC-1791



      Kirsch, Judge.


[1]   Kristopher W. Bunting (“Bunting”) appeals the trial court’s order revoking his

      probation and direct placement in community corrections and ordering him to

      Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017               Page 1 of 7
      serve the balance of his original sentence. Bunting raises the following issue for

      our review: whether the trial court erred in not allocating Bunting good time

      credit for time served on work release in a community corrections program.


[2]   We reverse and remand with instructions.


                                 Facts and Procedural History
[3]   On July 9, 2013, Bunting pleaded guilty to Class D felony possession of

      methamphetamine and Class A misdemeanor possession of paraphernalia in

      cause number 84D01-1212-FD-3827 (“Cause 3827”). The trial court sentenced

      Bunting in Cause 3827 to concurrent, but suspended, sentences of two years for

      Class D felony possession of methamphetamine and one year for Class A

      misdemeanor possession of paraphernalia. Bunting was placed on formal

      probation for the remainder of his suspended sentence.


[4]   On August 28, 2013, and again on January 21, 2014, the State filed a notice of

      probation violation against Bunting. On July 11, 2014, a third notice of

      probation violation was filed after Bunting was charged with new crimes in

      cause number 84D01-1407-FC-1791 (“Cause 1791”) and for failing to take drug

      screens on three occasions. On February 4, 2016, Bunting pleaded guilty to the

      third probation violation and the charges in Cause 1791, which included four

      counts of Class C felony forgery and one count each of Class D felony theft and

      Class D felony fraud. The trial court ordered Bunting to serve the balance of

      his previously-suspended sentence in Cause 3827, which was one year and 341

      days, and in Cause 1791 ordered Bunting to serve an aggregate seven years for

      Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017   Page 2 of 7
      the six counts to which he pleaded guilty, with the sentences in Cause 1791 to

      be served concurrently and consecutive to the sentence in Cause 3827 for a total

      sentence of eight years and 341 days to be fully executed as a direct

      commitment to the Vigo County Work Release Program (“Work Release”).


[5]   On February 10, 2016, Bunting began serving his eight-year and 341-day

      executed sentence on Work Release. However, on August 18, 2016,

      Community Corrections filed a petition to revoke Bunting’s direct placement on

      Work Release. The petition stated that Bunting had violated the terms and

      conditions of Work Release ten times. As a result of these violations, Bunting

      received various sanctions, which involved either a change in the term of his

      direct placement or a deprivation of his good time credit totaling 270 days.

      Appellant’s App. at 103-04.


[6]   A hearing was held on the petition on December 7, 2016, and at the conclusion,

      the trial court found that Bunting had violated the terms and conditions of his

      direct placement in Work Release. The trial court ordered Bunting to serve the

      remainder of his sentence, approximately five years, in the Indiana Department

      of Correction. In sentencing Bunting, the trial court gave him credit for 190

      actual days served on Work Release and credit for 503 actual days previously-

      served in the Vigo County Jail, plus good time credit of 503 days, for a total of

      1,196 days credit. Bunting now appeals, challenging the trial court’s allocation

      of good time credit related to the time period served on Work Release in a

      community corrections program, and claiming that the trial court erred by not

      allocating good time credit for the time period that he served on Work Release.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017   Page 3 of 7
                                        Discussion and Decision
[7]   Bunting does not challenge the revocation of his community corrections

      placement, but instead, he contends that the trial court erred when it denied

      him credit time for the period he had served in the Work Release program.

      Specifically, he argues that neither the trial court nor the community corrections

      program director had the authority to deprive him of the credit time he earned

      while in direct placement on Work Release. Based on our Supreme Court’s

      recent decision in Shepard v. State, No. 84S01-1704-CR-190, 2017 WL 4707482

      (Ind. Oct. 20, 2017), we must agree.


[8]   Bunting argues that, under Indiana law, only the Department of Correction

      (“DOC”) has the authority to deprive defendants serving time as a direct

      placement to community corrections of earned credit time,1 and, here, “the trial

      court incorporated a community corrections program director’s disciplinary

      decision to deprive Bunting of all his good time credit into a final judgment

      revoking Bunting’s direct commitment.” Appellant’s Br. at 7. The State

      responds that Community Corrections, and not the trial court, deprived him of

      the good time credit he earned while on Work Release, as sanctions for his

      violations of the program and that “a trial court is allowed to follow the

      disciplinary decisions of a local community corrections program in its




      1
       See Pharr v. State, 2 N.E.3d 10, 12 (Ind. Ct. App. 2013) (trial court exceeded its authority when it deprived
      defendant of credit time earned while in community corrections because only the DOC has authority to
      deprive defendants of credit time).

      Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017               Page 4 of 7
       sentencing order.” Appellee’s Br. at 15. We agree with the State that the trial

       court did not make a sentencing decision to deprive Bunting of good credit time

       and that, instead, the trial court recognized the fact that Community

       Corrections previously had taken away good time credit based on violations of

       the conditions of Work Release and then incorporated that prior loss of good

       time credit into its sentencing decision. We, therefore, must answer the

       question of whether the community corrections program director had the

       authority to deprive Bunting of the good time credit.


[9]    Indiana Code section 35-38-2.6-3 authorizes trial courts to “suspend a sentence

       and order a person to be placed in a community corrections program as an

       alternative to commitment to the department of correction.” Indiana Code

       section 35-38-2.6-6(c) provides that a “person who is placed in a community

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

       under” Indiana Code sections 35-50-6-3 and 35-50-6-3.3. But a person who is

       placed in a community corrections program “may be deprived of earned credit

       time as provided under the rules adopted by the department of correction under

       [Indiana Code chapter] 4-22-2.” Ind. Code § 35-38-2.6-6(d) (emphasis added).

       However, the DOC has not promulgated any such rules.


[10]   Bunting relies on Indiana Code section 35-38-2.6-6(d) for his contention that

       only the DOC has the authority to deprive a defendant of good time credit.

       Our Supreme Court recently agreed in its Shepard v. State decision and held that,

       absent a DOC rule, a community corrections program may not deprive an

       offender of earned credit time. Shepard, 2017 WL 4707482, at *3. In that case,

       Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017   Page 5 of 7
       Shepard’s direct placement in a community corrections facility was revoked for

       failure to abide by the program’s terms, and the trial court ordered him to serve

       the remainder of his sentence in DOC. Id. at *1. The trial court determined

       that Shepard was not entitled to any good time credit for his time served in the

       program because the community corrections director had deprived Shepard of

       more good time credit days than he was entitled to receive. Id. Shepard

       appealed, arguing that the trial court erred in denying him good time credit for

       days served in community corrections, and a panel of this court rejected

       Bunting’s argument, holding that the community corrections program did not

       lack the authority to revoke Shepard’s good time credit. Shepard v. State, 68

       N.E.3d 1103, 1106 (Ind. Ct. App. 2017), trans. granted. This court observed that

       “[r]equiring 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 actions.” Id.


[11]   On transfer, our Supreme Court observed that, in Indiana Code section 35-38-

       2.6-5, our legislature listed several actions a program director is authorized to

       take in instances when offenders violate terms of their placement in the

       program, which include: (1) changing the terms of the placement; (2)

       continuing the placement; (3) reassigning the offender to a different program; or

       (4) requesting that the trial court revoke the offender’s placement. Shepard,

       2017 WL 4707482, at *3. The list does not include depriving an offender of

       good time credit. The Shepard Court then looked to the plain language of

       Indiana Code section 35-38-2.6-6(d) and concluded that the statute gave DOC


       Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017   Page 6 of 7
       “discretion to promulgate rules related to the deprivation of earned credit time,

       including the delegation of such authority to other entities.” Id. However, in

       the absence of any DOC rule delegating such authority to a community

       corrections program director, the Court held that “only the [DOC] is

       empowered to deprive an offender directly placed into a community corrections

       program of earned credit time.” Id. The Court thus held that the community

       corrections director lacked authority to deprive Shepard of the good time credit

       he earned while serving in the program. Id.


[12]   We, therefore, likewise hold that the community corrections program director

       in the present case lacked the authority to deprive Bunting of any good time

       credit. Accordingly, we reverse the trial court’s good time credit determination

       and remand with instructions to re-calculate Bunting’s earned credit time to

       include the days he earned while serving on Work Release.


[13]   Reversed and remanded with instructions.


       Mathias, J., and Altice, J., concur.




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