                                                                          Mar 04 2015, 8:09 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                        Gregory F. Zoeller
Kokomo, Indiana                                           Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher Harding,                                      March 4, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          34A05-1410-CR-491
        v.                                                Appeal from the Howard Superior
                                                          Court.
                                                          The Honorable William C. Menges,
State of Indiana,                                         Jr., Judge.
Appellee-Plaintiff.                                       Cause No. 34D01-1204-FA-345




Darden, Senior Judge




Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015                          Page 1 of 6
                                       Statement of the Case
[1]   Christopher Harding appeals the trial court’s calculation of credit for the time

      he served prior to the revocation of his probation as well as the sentence

      imposed following the revocation. We reverse and remand with instructions.


                                                      Issue
              Whether the trial court erred in calculating Harding’s credit time
              for the time he served prior to the revocation of his probation and
              sentencing him following the revocation.


                                Facts and Procedural History
[2]   In April 2012, Harding was charged with drug related offenses and was

      incarcerated for 181 days from April 19, 2012 through October 16, 2012. He

      pleaded guilty to Class B and D felonies, and on October 17, 2012, the trial

      court sentenced him to 5110 days in the Department of Correction with 3285

      days executed, including 2555 days in the DOC, followed by 730 days on in-

      home detention; as well as 1825 days suspended to probation. Harding was

      incarcerated at the DOC from October 17, 2012 until February 12, 2014, which

      is a total of 483 days.


[3]   On February 12, 2014, the trial court modified Harding’s original sentence.

      Specifically, the trial court suspended the incarcerated portion of Harding’s

      remaining sentence at the DOC and placed him on supervised probation with

      the condition that he successfully complete the Howard County Community

      Corrections Re-Entry Program. On April 4, 2014, Harding violated the terms


      Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015      Page 2 of 6
      and conditions of the Re-Entry Program, and the trial court issued a warrant for

      his arrest, directing that he be held without bond.


[4]   Harding was arrested on May 30, 2014, and admitted the Re-Entry Program

      violation at a July 2, 2014 hearing. That same day, the State filed a motion to

      revoke Harding’s probation based on his termination from the Re-Entry

      Program. Harding admitted the violation of probation at an October 9, 2014

      hearing. Harding was incarcerated 132 days from May 30, 2014, until October

      9, 2014.


[5]   The trial court revoked Harding’s probation and suspended sentence and

      ordered him to serve the remaining balance of his sentence at the DOC which

      the court calculated was 3897 days with 264 credit days, for a total remaining

      sentence of 3633 days. Harding appeals the award of credit time and sentence.


                                    Discussion and Decision
[6]   Harding argues that the trial court erred in calculating the credit time for the

      time he served prior to the revocation of his probation. We agree. We review

      the trial court’s factual determinations for an abuse of discretion, and legal

      conclusions de novo. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App.

      2002).


[7]   Because credit time is a matter of statutory right, trial courts do not have

      discretion in awarding or denying such credit. James v. State, 872 N.E.2d 669,

      671 (Ind. Ct. App. 2007). A person who is not a credit restricted felon and who

      is imprisoned for a crime or awaiting trial or sentencing is initially assigned to
      Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015    Page 3 of 6
       Class I. Id. (citing Ind. Code § 35-50-6-4). A person assigned to Class I earns

       one day of credit time for each day he is imprisoned for a crime or is confined

       awaiting trial or sentencing. Id. (citing Ind. Code § 35-50-6-3). On appeal, it is

       the appellant’s burden to show that the trial court erred. Gardner v. State, 678

       N.E.2d 398, 401 (Ind. Ct. App. 1997).


[8]    We now turn to the calculation of Harding’s credit time. At the outset, it is

       helpful to clarify that Harding and the State agree that Harding is entitled to

       credit time for: 1) his pretrial incarceration from April 19, 2012 to October 16,

       2012, including credit time, which is 362 days; 2) his incarceration in the DOC

       from October 17, 2012 through February 12, 2014, including credit time, which

       is 966 days; and 3) his incarceration from May 30, 2014 through October 9,

       2014, while he was incarcerated before the probation revocation hearing, which

       is 264 days, including credit time. This is 1592 days of credit time.


[9]    Harding and the State disagree, however, as to whether Harding is entitled to

       credit time while he was on probation from February 13, 2014 until his April 4,

       2014, violation and from April 4, 2014 until May 30, 2014, while he was

       apparently evading an arrest warrant.


[10]   As to the period of probation, Indiana Code section 35-50-6-6 provides that a

       person does not earn credit time while on probation. Senn v. State, 766 N.E.2d

       1190, 1202 (Ind. Ct. App. 2002). Exceptions to this rule include defendants

       who are in a work release program and must return to jail when not working or

       participating in other sanctioned activities and those confined to home


       Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015   Page 4 of 6
       detention who must remain at their residences except for work, to obtain

       medical care, or to attend an educational program or place or worship. Id. at

       1198.


[11]   Here, however, the record reveals only that Harding was on probation and was

       required to complete a re-entry program as one of the terms and conditions of

       this probation. Harding has not alleged or shown that the re-entry program was

       so restrictive that it required him to return to jail when not working or be

       confined to his home. Harding has not met his burden to show the trial court

       erred. See Gardner, 678 N.E.2d at 401.


[12]   As for the period from April 4, 2014 through May 30, 2014, when Harding was

       apparently evading arrest, we note that there is no credit time for evasion. If

       Harding was incarcerated during this time, it was his burden to prove it, and he

       has again failed to show that the trial court erred. See id. Harding is entitled to

       the previously calculated 1592 days of credit.


[13]   The parties also disagree about the balance of executed days to which the 1592

       days of credit should be applied. Our review of the evidence reveals that the

       trial court initially sentenced Harding to 5110 days in the Department of

       Correction with 3285 days to be executed, and 1825 days suspended to

       probation. However, after the trial court revoked Harding’s probation at the

       October 9, 2014 hearing, the trial court also revoked Harding’s previously

       suspended 1825-day probation sentence. The revocation of the suspended

       sentence, which was within the trial court’s discretion pursuant to Indiana Code


       Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015    Page 5 of 6
                               1
       section 35-38-2-3, conforms to the original 5110-day sentence imposed by the

       court. When the 1592 days of credit time are applied to this original sentence,

       the State is correct that the balance of Harding’s sentence to be served is 3518

       days.


[14]   We reverse and remand with instructions for the trial court to award Harding

       1592 days of credit time and apply it to Harding’s 5110-day original sentence,

       leaving a 3518-day sentence.


       Kirsch, J., and May, J., concur.




       1
         Indiana Code section 35-38-2-3 provides that if the trial court finds that a person has violated a probation
       condition, the court may order execution of all or part of the sentence that was suspended at the time of
       initial sentencing.

       Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015                              Page 6 of 6
