                                                                          Jul 25 2013, 6:17 am


 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                   ATTORNEYS FOR APPELLEE:

DERICK W. STEELE                                          GREGORY F. ZOELLER
Deputy Public Defender                                    Attorney General of Indiana
Kokomo, Indiana
                                                          CHANDRA K. HEIN
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

VIRGIL PYLES,                                             )
                                                          )
       Appellant-Defendant,                               )
                                                          )
                vs.                                       )      No. 34A02-1301-CR-94
                                                          )
STATE OF INDIANA,                                         )
                                                          )
       Appellee-Plaintiff.                                )


                      APPEAL FROM THE HOWARD SUPERIOR COURT
                         The Honorable William C. Menges, Jr., Judge
                               Cause No. 34D01-0510-FD-356


                                                July 25, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        Virgil Pyles appeals the trial court’s calculation of the remaining balance of his

suspended sentence upon revocation of his probation. Pyles presents one issue for review,

which we restate as follows: Did the trial court properly calculate his credit for time served

prior to the revocation of his probation?

        We reverse and remand.

        This case would give any lawyer a headache, and at least minor errors in the

calculation of credit time are virtually inevitable here. The trial court determined that at the

time of revocation, Pyles still had 827 days remaining on his suspended sentence. On appeal,

Pyles argues that the number should be 496, and the State, though not offering a number,

acknowledges that the trial court’s number is untenable. Our calculation falls between these

numbers and somewhat closer to that asserted by Pyles.

        We begin with the history of this case starting with Pyles’s conviction and sentence.

Pyles pleaded guilty to possession of a controlled substance, a class D felony, and admitted to

being a habitual offender. On January 25, 2007, Pyles was sentenced to 3 years for

possession enhanced by 3 years for being a habitual offender. The trial court ordered 18

months executed (to be served on in-home detention) and the balance, 4 ½ years, suspended

to probation. Pyles was given credit for 80 days of actual pre-trial confinement, or 160 credit

days. Thus, the total sentence he had left to serve was 2030 days as of January 25, 2007.

        Pyles did not begin serving in-home detention in this case until September 24, 2007. 1


1
  It appears that the execution of his sentence was delayed because he was serving time in another county.
Regardless of the reason, the record is clear that Pyles did not begin in-home detention in this case until
September 24, 2007.

                                                    2
At intake, Pyles failed his baseline drug screen. He also failed random drug screens on

December 11, 2007 and January 14, 2008. These positive screens resulted in two non-

compliance petitions being filed against him. The trial court issued a warrant for Pyles’s

arrest on February 19, 2008. Pyles was arrested on the outstanding warrant on March 7,

2008. In an apparently related matter, Pyles was also charged and held under cause number

34D01-0803-FD-155 (FD-155) for unlawful possession of a syringe, a class D felony, for

which a jury trial was scheduled. Pyles remained incarcerated until September 4, 2008, when

he was released on his own recognizance and ordered to report to in-home detention.

       Shortly thereafter, the parties entered into a plea agreement regarding the instant cause

and FD-155. At a hearing on October 15, 2008, however, the trial court rejected the

agreement and, for reasons not apparent on the record before us, found probable cause of a

new violation and ordered Pyles into custody.

       The parties entered into another plea agreement with respect to both causes on

February 5, 2009. That same day, the trial court released Pyles on his own recognizance and

ordered him to report to the probation department. The court set the matter for a potential

sentencing hearing on March 11, 2009. At that hearing, the parties moved to amend the

proposed plea agreement. The court accepted the amended agreement and, with respect to

the instant cause, ordered Pyles to serve an additional 60 days on in-home detention (to begin

that day) followed by 1210 days of supervised probation. Regarding FD-155, the court




                                               3
sentenced Pyles to 3 years with all but 180 days suspended, which amounted to time served.2

The sentence for FD-155 was ordered to be served consecutive to the sentence in this case.

        On November 23, 2010, the State filed a petition to revoke Pyles’s suspended sentence

for failure to report. He was arrested on the outstanding warrant on May 25, 2012 and

remained incarcerated during the pendency of the revocation proceedings. On September 1,

2011, the court accepted Pyles’s plea and sentenced him to 1 year of the previously

suspended sentence (with credit for 156 actual days/312 credit days). The court also

extended the probationary period by another year.

        On January 26, 2012, the State filed another petition to revoke for failure to report,

and Pyles was arrested on May 25, 2012. Pyles admitted the alleged violation at the

evidentiary hearing on November 29, 2012, and the court sentenced him to the balance of his

previously suspended sentence. As set forth above, the trial court indicated that Pyles’s

remaining sentence, as of November 29, 2012, was 827 days. 3

        Pyles filed a motion to correct error on December 27, 2012, detailing his proposed

calculation of the time he had left to serve. The trial court summarily denied the motion.

Pyles now appeals.

        Presentence jail time credit is a matter of statutory right and, therefore, a trial court

does not have discretion in awarding or denying such credit. Senn v. State, 766 N.E.2d 1190



2
  The CCS from FD-155 reveals that the trial court expressly found that Pyles had jail time credit of 90 actual
days or 180 credit days.
3
  To be precise, the court indicated that the balance of the previously suspended sentence was 1203 days. The
court then gave credit for 188 actual days or 376 credit days for time served while awaiting disposition of the
instant revocation proceedings. The court did not explain its calculation.

                                                      4
(Ind. Ct. App. 2002). In this regard, a person imprisoned for a crime or imprisoned awaiting

trial or sentencing generally earns one day of credit time (also referred to as good time credit)

for each day of imprisonment. See Ind. Code Ann. § 35-50-6-3 (West, Westlaw current

through June 29, 2013, excluding P.L. 205-2013). With respect to time served on in-home

detention prior to July 2010, however, a defendant is only entitled to actual time served, not

credit time. 4

        After a painstaking review of the record, it is apparent that the trial court’s calculation

of the time left on Pyles’s sentence is not correct. Our calculation follows. Pyles was

initially sentenced to 2190 days for which he was given credit for 160 days, leaving 2030

days remaining on his sentence. He served in-home detention from September 24, 2007 to

March 6, 2008, which amounts to 164 actual days against his sentence. At this point, 1866

days remained. Pyles was then incarcerated for 181 days from March 7, 2008 to September

4, 2008. 90 of these days are attributable to his sentence in FD-155. Thus, 182 credit days

apply in this case to reduce the balance of his sentence to 1677 days. From September 4

(when he was released to in-home detention) to October 15, 2008, Pyles apparently continued

on in-home detention. Subtracting these 41 actual days, we are now at 1636 days remaining.

Pyles was once again incarcerated in the instant case on October 15, 2008 until February 5,

2009, for a total of 113 days or 226 credit days, leaving 1410 days. 5 On March 11, 2009, he


4
   The applicable statute, Ind. Code Ann. § 35-38-2.6-6, was amended in 2010 to allow for credit time to be
earned while serving a sentence on home detention. Our Supreme Court has held recently that this amendment
applies only to those who are placed on home detention on or after its effective date. Cottingham v. State, 971
N.E.2d 82 (Ind. 2012). Accordingly, as Pyles concedes, the amendment does not apply here.
5
  By the time Pyles was released on February 5, 2009, he would have already completed the executed portion
of his original sentence. Therefore, he was released to probation.

                                                      5
was returned to in-home detention for an additional 60 days, reducing the balance remaining

on his sentence to 1350. Thereafter, as a result of another probation violation, one year of his

suspended sentence was revoked on September 1, 2011. After serving this time, 985 days

remained of his original sentence. Next came the instant violation and revocation, for which

Pyles served 188 actual days in pretrial confinement. Subtracting 376 days credit time, we

are left with 609 days remaining on Pyles’s sentence as of the revocation of his probation on

November 29, 2012. Our calculation of 609 days is substantially less than the trial court’s

unsupported determination of 827 days remaining to be served.

        We recognize, of course, that our calculation could be off by several days in favor of

Pyles. The State, though conceding the inadequacy of the trial court’s number, has not

proposed any calculation and simply asks that we remand for further fact-finding and

consideration by the trial court. 6 For judicial economy, we choose to decide the matter based

on the record before us.

        On remand, Pyles shall be granted credit against his original sentence as set out in

detail above. Accordingly, the trial court is directed to amend its sentencing order on petition

to revoke to reflect that as of November 29, 2012, Pyles had 609 days left to serve on his

original suspended sentence.

        Judgment reversed and remanded.


6
  On several occasions in its appellate brief, the State asserts that Pyles has failed to establish that his periods
of incarceration were not due to other causes of action. Aside from the FD-155 cause, which was fully
addressed in this opinion, the State does not point to any portion of the record indicating that the periods of
incarceration were for anything but this case. We refuse the State’s request to require Pyles to prove a negative
without the State coming forward with evidence indicating that the periods of incarceration were not for the
instant violations.

                                                         6
ROBB, C.J., and CRONE, J., concur.




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