      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                 Oct 31 2017, 8:09 am
      court except for the purpose of establishing
                                                                                    CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              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
                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Thigpen, Jr.,                                    October 31, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               84A05-1611-CR-2643
              v.                                               Appeal from the
                                                               Vigo Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      John T. Roach, Judge
                                                               Trial Court Cause Nos.
                                                               84D01-1312-FB-3765,
                                                               84D01-1510-F3-2567



      Kirsch, Judge.


[1]   After the trial court revoked Anthony Thigpen, Jr.’s (“Thigpen”) direct

      placement to a community corrections program, Thigpen appeals and

      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017           Page 1 of 8
      challenges the trial court’s determination of credit time, which reflected a loss of

      all his good time credit. Thigpen raises the following restated issue: whether

      the community corrections program had the authority to deprive Thigpen of

      good credit time that he earned while on work release.


[2]   We reverse and remand with instructions.


                                    Facts and Procedural History
[3]   On December 11, 2013, the State charged Thigpen with Class B felony

      aggravated battery and Class C felony battery by means of a deadly weapon in

      Cause No. 84D01-1312-FB-3765 (“FB-3765”). Appellant’s App. Vol. II at 118.

      In May 2014, pursuant to a written plea agreement, Thigpen pleaded guilty to

      the Class C felony, the Class B felony was dismissed, and Thigpen was

      sentenced to four years, all suspended to probation. Id. at 143-44, 174-76.


[4]   In October 2015, while he was still on probation in FB-3765, the State charged

      Thigpen with Level 6 felony arson in Cause No. 84D01-1510-F6-2576 (“F6-

      2576”)1 and with Level 3 felony aggravated battery in Cause No. 84D01-1510-

      F3-2567 (“F3-2567”). Appellant’s App. Confid. Vol. II at 53, 67; Appellant’s App.

      Vol. II at 11. On October 26, 2015, the State filed a notice of probation

      violation in FB-3765 based on these new charges. Id. at 200.




      1
        The record before us reflects that the Level 6 felony arson charge was initially filed in Vigo Superior Court
      Division 6 under Cause No. 84D06-1510-F6-2512, Appellant’s App. Confid. Vol. II at 67, but was later
      transferred and assigned Cause No. 84D01-1510-F6-2576. Id. at 17.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017              Page 2 of 8
[5]   In April 2016, Thigpen pleaded guilty by written plea agreement to an amended

      count of Level 5 felony battery in F3-2567, admitted to violating his probation

      in FB-3765, and the State dismissed the arson charges in F6-2576. Id. at 42-43,

      77. In accordance with the plea agreement, the trial court sentenced Thigpen in

      August 2016 to consecutive terms of five years in F3-2567 (the Level 5 felony

      battery) and to two years in FB-3765 (the probation violation), for a total of

      seven years, which was ordered to be served as a direct commitment to the Vigo

      County Community Corrections work release program. Id. at 83-84, 86-88.

      Thigpen entered the work release program five days later, on August 24, 2016.


[6]   During the next month, September 2016, Thigpen violated the terms of his

      placement on a number of occasions, and, following hearings, community

      corrections imposed sanctions for the violations, including loss of credit time.

      On September 19, 2016, the State filed, and later amended, a petition to revoke

      direct placement in the work release program (“petition to revoke”). Id. at 90-

      91, 94-95. At the October 14, 2016 hearing on the petition to revoke, Thigpen’s

      work release case manager testified that Thigpen had lost a total of 120 days of

      credit time due to his violations. Tr. at 9, 13.


[7]   On October 21, 2016, the trial court revoked Thigpen’s placement in the work

      release program, finding that he had violated the terms of his direct placement

      by possessing tobacco in violation of the rules and by leaving his whereabouts

      unknown on three occasions after having been allowed out for specific periods

      of time. Tr. at 25. The trial court ordered him to serve the previously-imposed

      seven-year sentence in D.O.C. Id.; Appellant’s App. Vol. II at 104-05. With

      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017   Page 3 of 8
      respect to credit time, the trial stated, “You’re entitled credit against that of six

      hundred and sixty-eight (668) days. Uh, you lost all your good time while you

      were in Vigo County Work Release based on Violations over there.” Tr. at 25.

      In its written order, the trial court further explained that Thigpen received credit

      time of 303 days for actual time served from October 21, 2015 to August 18,

      2016 in the Vigo County Jail, 303 days of good time credit, and 63 days of

      credit time for actual time served in the community corrections work release

      program from August 19, 2016 to October 20, 2016, but “lost all good time

      while in Vigo County Work Release.” Appellant’s App. Vol. II at 104. Thigpen

      now appeals.


                                        Discussion and Decision
[8]   Thigpen concedes that “the trial court was well within its statutory authority to

      revoke Thigpen’s placement and order him to serve the remainder of his

      sentence in the D.O.C.,” but, he argues, it was error “to also deprive Thigpen of

      the credit time he earned while in the work release center.” Appellant’s Br. at 8.

      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 agree.


[9]   Thigpen argues that, under Indiana law, trial courts lack the authority to

      deprive a community corrections offender of earned credit time,2 and, here, “the




      2
       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, as “only the [D.O.C.] has authority to
      deprive defendants of credit time”).

      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017              Page 4 of 8
       trial court deprived Thigpen of the 63 days of credit time he had earned while

       serving in the work release program, even though it had no authority to do so.”

       Appellant’s Br. at 6. The State responds that the Vigo County Work Release

       Program, and not the trial court, deprived him of the good time credit he earned

       while on community corrections, as sanctions for his violations of the program.

       We agree with the State that the trial court did not make a sentencing decision

       to deprive Thigpen of good credit time; rather, the trial court acknowledged the

       fact that community corrections already had taken away good time credit based

       on conduct violations, and the trial court then incorporated that previous loss of

       good time credit into its sentencing decision. The question before us is whether

       the community corrections program director had the authority to deprive

       Thigpen of the good time credit.


[10]   Thigpen correctly observes that offenders who are placed in a community

       corrections program earn both accrued time and good time credit time, similar

       to offenders who are housed in the D.O.C. See Ind. Code § 35-38-2.6-6(c) (“[A]

       person who is placed in a community correction program . . . is entitled to earn

       good time credit under IC 35-50-6-3 and IC 35-50-6-3.1.”). Offenders also may

       be deprived of good time credit for bad behavior and conduct violations.

       Specifically, Indiana Code section 35-38-2.6-6(d) provides:


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



       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017   Page 5 of 8
[11]   Relying on Indiana Code section 35-38-2.6-6(d), Thigpen argues on appeal,

       “The General Assembly has only authorized a defendant’s good time credit

       earned in a community corrections program to be deprived under rules

       promulgated by [D.O.C.]. Yet no such rules have been promulgated.”

       Appellant’s Br. at 3. Therefore, he contends, “Only [D.O.C.] has the authority

       to deprive an offender of good time credit.” Id. at 4. In its recent Shepard v.

       State decision, our Supreme Court agreed, holding that, absent a D.O.C. rule, a

       community corrections program may not deprive an offender of earned credit

       time. Shepard, 2017 WL 4707482, at *3-4.


[12]   In Shepard, the Court was presented with a similar set of facts to that which we

       face today: Shepard’s direct placement in community corrections facility was

       revoked for failure to abide by the program’s terms, the trial court ordered

       Shepard to serve the remainder of his sentence in D.O.C., and it determined

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

       work release program because the community corrections director had deprived

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

       *1. Shepard appealed and argued that the trial court erred in denying him good

       time credit for days served in community corrections. Id. at *2. The Court of

       Appeals affirmed and found that the community corrections program did not

       lack the authority to revoke Shepard’s good time credit, observing 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




       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017   Page 6 of 8
       program’s disciplinary actions.” Shepard v. State, 68 N.E.3d 1103, 1005 (Ind.

       Ct. App. 2017), trans. granted.


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

       2.6-5 “outline[s] several actions a program director is authorized to take in

       instances when offenders violate terms of their placement in the program,” and

       those are:


               (1) Change the terms of the placement.


               (2) Continue the placement.


               (3) Reassign a person assigned to a specific community
               corrections program to a different community corrections
               program.


               (4) Request that the court revoke the placement and commit the
               person to the county jail or department of correction for the
               remainder of the person’s sentence.


       Shepard, 2017 WL 4707482, at *4-5. The list does not include depriving an

       offender of good time credit. Next, the Shepard Court examined the plain

       language of Indiana Code section 35-38-2.6-6(d), which allows for the

       deprivation of good time credit for offenders directly placed in community

       corrections. The Court determined that the statute gave D.O.C. discretion to

       promulgate rules related to the deprivation of earned credit time, but in the

       absence of a D.O.C. rule delegating such authority to a community corrections

       program director, “only the D.O.C. is empowered to deprive an offender

       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017   Page 7 of 8
       directly placed into a community corrections program of earned credit time.” 3

       Id. at *5. Therefore, the Shepard Court held that the community corrections

       director lacked authority to deprive Shepard of the good time credit he earned

       while serving in the program. Id.


[14]   Pursuant to our Supreme Court’s directive in Shepard, we likewise hold that the

       community corrections program lacked the authority to deprive Thigpen of any

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

       determination and remand with instructions to re-calculate Thigpen’s earned

       credit time to include the 63 days he earned while serving in the work release

       program.


[15]   Reversed and remanded with instructions.


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




       3
        In its decision, the Shepard Court expressly observed, “To be clear, we find no reason to believe that the
       D.O.C. cannot in the future promulgate a rule under Indiana Code section 35-38-2.6-6(d), authorizing the
       director of a community corrections program to deprive offenders of earned good time credit. But for reasons
       not known to us, the D.O.C. has yet to delegate such authority.” Shepard, 2017 WL 4707482, at *5.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2643 | October 31, 2017          Page 8 of 8
