      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be
                                                                              Dec 10 2018, 10:32 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                 CLERK
                                                                               Indiana Supreme Court
      the defense of res judicata, collateral                                     Court of Appeals
                                                                                    and Tax Court

      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
                                                              Monika Prekopa Talbot
                                                              Supervising Deputy Attorney
                                                              General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Joseph A. Demma,                                        December 10, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              18A-CR-1804
              v.                                              Appeal from the
                                                              Vigo Superior Court
      State of Indiana,                                       The Honorable
      Appellee-Plaintiff.                                     John T. Roach, Judge
                                                              Trial Court Cause No.
                                                              84D01-1304-FC-1279



      Kirsch, Judge.


[1]   Joseph A. Demma (“Demma”) appeals the trial court’s order revoking his

      direct placement in home detention. He raises the following issue for our

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1804 | December 10, 2018                Page 1 of 5
      review: whether his case should be remanded to the trial court because the trial

      court failed to give Demma credit time for time he served while incarcerated

      when his case was pending.


[2]   We remand.


                                 Facts and Procedural History
[3]   On October 18, 2013, Demma pleaded guilty to two counts of forgery, both as

      Class C felonies. Pursuant to the plea agreement, Demma’s sentence was

      capped at six years. Appellant’s App. Vol. 2 at 41. On January 27, 2014, the trial

      court sentenced Demma to six years for each count with the sentences to run

      concurrently. Id. at 78. The trial court further ordered that four years of his

      sentence be served as a direct commitment to home detention and the

      remaining two years be suspended to probation. Id. at 78-82. Demma filed a

      motion to modify his sentence, and on July 20, 2016, the trial court granted the

      motion and suspended the balance of Demma’s executed time to probation. Id.

      at 87. The trial court noted that Demma’s term of probation at that time was

      two years, six months, and twenty-three days. Id. at 88.


[4]   On March 12, 2018, Demma was arrested after the State filed a petition alleging

      that he violated the terms of his probation. Id. at 10. Demma remained

      incarcerated from March 12, 2018 through April 18, 2018. Each time he

      appeared in court, on March 12, March 13, April 10, and April 18, 2018,

      Demma appeared “in custody of the Vigo County Jail.” Id. at 106-07, 111, 113.

      On April 18, 2018, Demma admitted that he violated the terms of his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1804 | December 10, 2018   Page 2 of 5
      probation, and the parties agreed that the balance of Demma’s probation,

      which was two years, six months, and twenty-two days, would be revoked and

      that Demma would serve that time as a direct commitment to home detention.

      Id. at 113. Neither the revocation order nor the abstract of judgment reflected

      that Demma was entitled to credit for the time he spent in jail. Id. at 113-16.


[5]   Thereafter, Demma violated the terms of his home detention by testing positive

      for methamphetamine and admitted the violation at a hearing held on July 3,

      2018. Id. at 117-18; Tr. Vol. 2 at 7. At the hearing, the trial court inquired as to

      the amount of credit time to which Demma was entitled, and Demma stated

      that he had sixty-three days of incarceration between February 24, 2018 and

      April 27, 2018. Tr. Vol. 2 at 8. The trial court stated that it was only interested

      in credit accrued since April 18, 2018. Id. The trial court ordered that Demma

      serve the balance of his probation period in the Indiana Department of

      Correction and awarded him eighty-four days of credit for sixteen days served

      on home detention from May 22, 2018 through June 6, 2018, and for twenty-six

      days served in jail from June 6, 2018 through July 2, 2018. Id. at 8-9; Appellant’s

      App. Vol. 2 at 123. Demma informed the court that he believed he was entitled

      to credit time for the time he had spent in the jail in March, April, and May

      2018. Tr. Vol. 2 at 26. The trial court disagreed. Id. Demma now appeals.


                                     Discussion and Decision
[6]   Demma argues, and the State concedes, that he was entitled to credit time for

      time spent incarcerated between March 12, 2018 and April 18, 2018 and that he


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1804 | December 10, 2018   Page 3 of 5
      was not given this credit time when the trial court revoked his direct placement

      to home detention. We agree with the parties.


[7]   Our Supreme Court has noted that “there are two types of credit that must be

      calculated: ‘(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.’” Maciaszek v. State, 75 N.E.3d 1089,

      1092 (Ind. Ct. App. 2017) (quoting Purcell v. State, 721 N.E.2d 220, 222 (Ind.

      1999)), trans. denied. “Because credit time is a matter of statutory right, trial

      courts do not have discretion in awarding or denying such credit.” Harding v.

      State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015).


[8]   Here, in our review of the record, it appears that Demma was incarcerated in

      the Vigo County Jail awaiting the disposition of a probation violation from

      March 12, 2018 through April 18, 2018. Although the exact dates are not clear

      from the record, an arrest warrant was served on Demma on March 12, 2018.

      Appellant’s App. Vol. 2 at 10. Thereafter, it appears that he remained in the Vigo

      County Jail until at least April 18, 2018 because each time he appeared in court,

      it was noted that he appeared “in custody of the Vigo County Jail.” Id. at 106-

      07, 111, 113. On April 18, 2018, when Demma admitted his probation

      violation, the trial court ordered him to serve the balance of his probation,

      which was two-years, six months, and twenty-two days. Id. at 113. However,

      Demma was not given credit for any time served incarcerated prior to April 18,

      2018. Likewise, when Demma’s direct placement to home detention was

      revoked on July 3, 2018, he was given credit for eighty-four days for time served

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1804 | December 10, 2018   Page 4 of 5
      on home detention from May 22, 2018 through June 6, 2018 and for time

      served in jail from June 6, 2018 through July 2, 2018, but the trial court did not

      address credit time for Demma’s prior incarceration. Because the record is not

      clear regarding the amount of credit time Demma is entitled to, we remand to

      the trial court to make such a determination and award Demma the proper

      amount of credit time.


[9]   Remanded.


      Riley, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1804 | December 10, 2018   Page 5 of 5
