                                                                                      FILED
                                                                                Aug 01 2017, 9:04 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jerry T. Drook                                             Curtis T. Hill, Jr.
      Marion, Indiana                                            Attorney General of Indiana
                                                                 Katherine Cooper
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cody R. Hickman,                                           August 1, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 27A02-1701-CR-59
              v.                                                 Appeal from the Grant Superior
                                                                 Court
      State of Indiana,                                          The Honorable Jeffrey D. Todd,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause Nos.
                                                                 27D01-1209-FD-132,
                                                                 27D01-1209-FB-133



      Mathias, Judge.


[1]   In this probation revocation case, we consider whether the trial court abused its

      discretion in concluding that Cody R. Hickman (“Hickman”) was not entitled

      to accrued time against his sentence for time spent in a halfway house as part of

      a reentry-court program and as a condition of his probation.

      Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017                             Page 1 of 10
[2]   We affirm.


                                    Facts and Procedural Posture
[3]   In November 2012, Hickman pleaded guilty in Grant Superior Court to three

      counts of burglary and theft under Cause Number FB-133 and admitted a

      probation violation in Cause Number FD-132, whereunder he had pleaded

      guilty to theft and resisting law enforcement in April 2012. In December 2012,

      Hickman was sentenced to a mix of executed and suspended time on the new

      conviction and violation, including a total of four years supervised probation.


[4]   Hickman served time in prison, was released, and began his four-year probation

      in Grant County in January 2015. As a condition of his probation, Hickman

      was required to successfully complete Grant County’s reentry-court program.1

      Through reentry court, Hickman came to live at Grace House, apparently a

      halfway house, or, as Hickman assures us without record citation, “a residential

      program established to help men in their process of recovery from substance

      abuse/addiction.” Appellant’s Br. at 12.


[5]   During his stay at Grace House, and as part of reentry court in general,

      Hickman was required to keep a 10:00 p.m. to 6:00 a.m. curfew during “Phase

      1” of the program. Tr. pp. 22–23. Hickman asserts that he “was required to be

      at Grace House unless he had signed out for work or group meetings or to see



      1
        Reentry courts are “problem solving court[s] . . . focused on the needs of individuals who reenter the
      community after a period of incarceration . . . that may provide a range of necessary reintegration services for
      eligible individuals, including the following [seven listed services].” Ind. Code § 33-23-16-9.

      Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017                            Page 2 of 10
      his probation officer.” Appellant’s Br. at 7. This assertion apparently rests on

      the following testimony from Hickman’s probation officer and case manager

      concerning Hickman’s compliance (or lack of it) with reentry-court program

      rules:


               [Hickman] was living in the Grace House in, um, October of
               2016, and he was, um, signed up for—or he was working, um, at,
               uh, Hardy’s . . . in the Gas City I69 exit, and he was supposed to
               sign out, um, to go to, uh, daily schedule, um, at the Grace
               House, to go to work or groups or come see me, and he was
               signing out to leave the Grace House and, um, he did—he was
               no longer working, and he was not reporting that to Reentry
               Court staff or Grace House staff, and so he was leaving the Grace
               House, um, under the, um, belief that he was going to work and
               doing a prosocial event when he was not doing that, he was just
               out, um, doing whatever he wanted to do. This happened, uh, . .
               . five times [in October 2016].


      Tr. pp. 18-19.


[6]   It does not appear from the record precisely how long Hickman was at Grace

      House, but it was apparently not for the entire period of his participation in

      reentry court. See Appellant’s App. p. 11 (chronological case summary entry

      dated September 6, 2016, approving one month’s stay at Grace House). In any

      event, the State petitioned to revoke Hickman’s participation in reentry court in

      June 2016, less than a year and a half after Hickman began the reentry-court

      program in January 2015, and then again on October 25, 2016. Between

      January 2015 and October 25, 2016, Hickman tested positive for marijuana five

      times; broke curfew eight times; missed two “Saturday Work Crew[]”


      Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017   Page 3 of 10
      assignments; patronized a bar twice; pleaded guilty to battery causing serious

      bodily injury, disorderly conduct, possession of marijuana, and possession of

      paraphernalia under three separate cause numbers; and totally absconded from

      the program for two months from June 2016 to August 2016 — all in violation

      of program rules. Appellant’s App. p. 50; Tr. pp. 30, 33.


[7]   The trial court granted the State’s second petition to revoke Hickman’s reentry-

      court participation on November 14, 2016. The State then petitioned to revoke

      Hickman’s probation the same day. At the conclusion of a revocation hearing

      on December 13, 2016, the court granted the State’s petition and ordered

      Hickman to execute his four-year suspended sentence. The court credited

      Hickman with seventy-eight days against that sentence for time served in jail

      since January 2015, but denied Hickman’s request for additional credit for the

      “period of time where his liberties and freedoms ha[d] been taken away” at

      Grace House during his reentry-court participation. Tr. p. 50.


[8]   This timely appeal followed. Hickman challenges the trial court’s denial of

      credit time for time spent at Grace House.


                                          Standard of Review
[9]   In general, imposing sanction for a probation violation lies within the trial

      court’s sound discretion, and we will reverse only for abuse of that discretion.

      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). A trial court abuses its

      discretion by ruling in a way clearly against the logic and effect of the facts and

      circumstances before it, or by misinterpreting the law. Id. Because credit time is

      Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017   Page 4 of 10
       a matter of statutory right, if a trial court finds that a person comes within the

       statutory entitlement, the court has no discretion in awarding it. Purdue v. State,

       51 N.E.3d 432, 436 (Ind. Ct. App. 2016).


                                       Discussion and Decision
[10]   “‘Accrued time’ means the amount of time a person is imprisoned or confined.”

       Ind. Code § 35-50-6-0.5(1). A convicted person is entitled to have any accrued

       time counted against his sentence, along with any other credit time. Id. at (2)

       (“credit time” includes accrued time, good time credit, and education credit);

       I.C. § 35-50-6-1(a). “‘Imprison’ means to confine in a penal facility . . . ,” I.C. §

       35-31.5-2-166(1), and “‘[p]enal facility’ means . . . any . . . facility for

       confinement of persons under sentence[.]” I.C. § 35-31.5-2-232. “Confinement”

       is without statutory definition for these purposes.


[11]   “[S]ubstantial control . . . less than incarceration can constitute” confinement in

       the sense of imprisonment. Capes v. State, 634 N.E.2d 1334, 1335 (Ind. 1994)

       (holding pretrial home detention entitles pretrial detainee to accrued time

       against sentence), overruled by Franklin v. State, 685 N.E.2d 1062, 1064 (Ind.

       1997), overruled by Purcell v. State, 721 N.E.2d 220, 223–24 (Ind. 1999). If a

       person is “shut up or restrain[ed] . . . of his liberty” “under the control” of law

       enforcement or corrections authorities, he may be “confined” or “imprisoned”

       within the meaning of the statutory language. Id. (quoting State by Kahn v.

       Woodward, 123 Ind. 30, 23 N.E. 968, 969 (1889)). However, we note that

       Hickman has cited no authority, and we find none, holding that a person was


       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017        Page 5 of 10
       “confined” or “imprisoned” during a placement at a halfway house and thus

       entitled to accrued time.


[12]   Home detention is confinement and entitles the detainee to accrued time, I.C. §

       35-38-2.5-5(e); I.C. § 35-38-2.6-6(b); Senn v. State, 766 N.E.2d 1190, 1199 (Ind.

       Ct. App. 2002), as is work release. Senn, 766 N.E.2d at 1203. Daily reporting

       probation, by contrast, affording a probationer nearly the same degree of

       freedom of movement, autonomy, and privacy as living at liberty, does not

       involve “the type of freedom restrictions that deserve credit time.” Reed v. State,

       844 N.E.2d 233, 225 (Ind. Ct. App. 2006). A halfway house has been held to be

       a “penal facility” within the meaning of the definition cited above, Roll v. State,

       473 N.E.2d 161, 163–64 (Ind. Ct. App. 1985) (affirming conviction for

       trafficking with an inmate), but not every halfway house is a penal facility.

       Oswalt v. State, 749 N.E.2d 612, (Ind. Ct. App. 2001) (affirming denial of

       accrued time for time served in halfway house, distinguishing halfway house in

       Roll).


[13]   Our decisions have found the following factors relevant in determining whether

       a person is confined or imprisoned in a placement and thus earns accrued time:

       whether the placement was requested by the person as a condition of probation

       or was otherwise voluntary, Oswalt, 749 N.E.2d at 615; Dixon v. State, 685

       N.E.2d 715, 718 (Ind. Ct. App. 1997); the degree of freedom of movement

       enjoyed by the person, Reed, 844 N.E.2d at 225; Oswalt, 749 N.E.2d at 615;

       Dixon, 685 N.E.2d at 718; the degree of direct supervision over the placement

       exercised by the Department of Correction, a court, or another state actor;

       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017   Page 6 of 10
       Oswalt, 749 N.E.2d at 614 (distinguishing Roll, 473 N.E.2d at 163); Dixon, 685

       N.E.2d at 718; and the degree of autonomy and privacy enjoyed by the person

       in the conduct of his everyday life. Reed, 844 N.E.2d at 225; Oswalt, 749 N.E.2d

       at 614.2


[14]   In this light, we conclude that Hickman was not confined or imprisoned during

       his time at Grace House. First, it does not appear from the record that the

       Grace House placement was involuntary. It is true that participation in reentry

       court was required of Hickman as a condition of his probation, Appellant’s

       App. pp. 37, 39, and that the Grace House placement was part of the reentry-

       court program. Id. at 11. Hickman asserts further that, “[a]s part of his required

       participation in reentry court, Hickman was ordered to stay at Grace House,”

       Appellant’s Br. at 12 (emphasis added), but he provides no record citation in

       support of this assertion, and we find no support for it in the record. In other

       words, while Hickman has shown that participation in reentry court was

       required of him, he has not shown the same to be true of his placement at Grace

       House. Reentry court is a flexible tool. It may be that Grant County reentry

       court offers its participants a range of options for successful completion, or




       2
         We have also looked to whether absconding from the placement exposes the person to criminal liability for
       escape, Oswalt, 749 N.E.2d at 614, but in general this begs the question. “Escape” is defined as flight from
       “lawful detention . . . ,” I.C. § 35-44.1-3-4, and “lawful detention” means inter alia “detention in a penal
       facility[.]” I.C. § 35-31.5-2-186(3). As noted above, “‘[p]enal facility’ means . . . any . . . facility for
       confinement of persons under sentence[,]” I.C. § 35-31.5-2-232, and it is precisely the meaning of
       “confinement” that is to be determined here.

       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017                         Page 7 of 10
       tailors its programs with input from its participants. We will not speculate in

       Hickman’s favor when it is his burden on appeal to show reversible error below.


[15]   Second, Hickman raises the fact that his freedom of movement was restricted

       by a curfew and by a requirement that he “be at Grace House unless he had

       signed out for work or group meetings or to see his probation officer[.]”

       Appellant’s Br. at 12. We note that the latter assertion is not fully supported by

       the record. Hickman’s probation officer and case manager testified that

       Hickman “was supposed to sign out, um, to go to, uh, daily schedule, um, at

       the Grace House, to go to work or groups or come see me[.]” Tr. p. 19.

       Testimony that Hickman was “supposed to sign out” if he wished to leave for

       certain listed purposes is not testimony that Hickman was prohibited from

       leaving for any purposes but those listed. Id.


[16]   As to the curfew itself, we do not deny that a curfew may be a substantial

       imposition on a person’s liberty. However, Hickman’s does not appear to have

       been such. There is no record of enforcement of the curfew against Hickman,

       save for the curfew violations appearing much later as one of several predicates

       for the State’s petitions to revoke. Moreover, the curfew could be modified for

       cause: Hickman’s probation officer and case manager testified that, if reentry-

       court participants “have to work second shift, third shift—we have no problem

       with that. It’s just to keep leisure time [supervised or restricted].” Tr. p. 23.


[17]   In any event, whatever restrictions were placed on Hickman’s liberty in name

       were apparently not very zealously enforced in fact. Hickman’s probation


       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017      Page 8 of 10
       officer and case manager testified that, for some period, Hickman “was just out,

       um, doing whatever he wanted to do.” Tr. p. 19. Hickman was able simply to

       disappear from reentry-court supervision for two months and even then, after the

       State filed its first unsuccessful petition to revoke his participation, continued to

       enjoy participation in the program. This is not the life of a prisoner or even a

       home detainee.


[18]   Finally, Hickman has not made any showing as to the degree of supervision

       over him by state actors or as to the degree of autonomy and privacy he enjoyed

       in conducting his life at Grace House. As noted above, the degree of

       supervision by Grace House and corrections or court staff appears to have been

       quite loose, and Hickman has not presented evidence that Grace House should

       be considered a state actor in this context. Other than the movement restrictions

       discussed above, Hickman has not presented any evidence at all of restrictions

       on his autonomy and privacy at Grace House. To the extent that Hickman was

       able to patronize bars, smoke marijuana, freely lie about his employment, and

       disappear for two months while participating in reentry court, participation

       appears to have left him quite at liberty.


                                                  Conclusion
[19]   Hickman has not persuaded us that the trial court’s conclusion that he was not

       confined or imprisoned while living at Grace House and participating in reentry

       court was clearly against the facts and circumstances before it. The court

       therefore did not err in denying Hickman accrued time against his sentence, and

       its judgment is affirmed.
       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017     Page 9 of 10
[20]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1701-CR-59 | August 1, 2017   Page 10 of 10
