                                                                       Aug 26 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Deborah Markisohn                                        Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bruce Ryan,                                              August 26, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1501-CR-2
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Marc T. Rothenberg,
      Appellee-Plaintiff                                       Judge, and The Honorable Amy J.
                                                               Barbar, Magistrate

                                                               Cause No. 49G02-1110-FC-77449




      Najam, Judge.


                                        Statement of the Case
[1]   Following this court’s reversal of Bruce Ryan’s convictions on direct appeal but

      before this court’s opinion was certified as final, Ryan petitioned the trial court

      for an appeal bond. The court granted Ryan’s petition but placed him under

      Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                 Page 1 of 16
      numerous restrictions, which were supervised by the local community

      corrections program. The Indiana Supreme Court then reversed this court’s

      decision and reinstated Ryan’s convictions. See Ryan v. State, 9 N.E.3d 663, 673

      (Ind. 2014) (“Ryan I”). Ryan spent a total of 429 days under the conditions of

      his appeal bond, and he never violated any of those conditions. As such,

      following the reinstatement of his convictions, Ryan moved the trial court for

      an award of credit time1 for the time he had served under the conditions of the

      bond.


[2]   Ryan now appeals the trial court’s denial of that request, and he and the State

      present numerous arguments for our review. We hold, as a matter of first

      impression, that credit time for a defendant’s release on an appeal bond is

      prohibited under Indiana law. We also hold that, insofar as his arguments

      require this court to review the conditions of his release on his appeal bond,

      Ryan’s arguments are moot. Indiana Appellate Rule 18 provided Ryan with a




      1
        Although not effective until July 1, 2015, which was after the trial court’s judgment in the instant appeal,
      new Indiana Code Section 35-50-6-0.5 provides the following useful definitions:
               (1) “Accrued time” means the amount of time that a person is imprisoned or confined.
               (2) “Credit time” means the sum of a person’s accrued time, good time credit, and
               educational credit.
               (3) “Educational credit” means a reduction in a person’s term of imprisonment or
               confinement awarded for participation in an educational, vocational, rehabilitative, or
               other program.
               (4) “Good time credit” means a reduction in a person’s term of imprisonment or
               confinement awarded for the person’s good behavior while imprisoned or confined.
      As a matter of law, Indiana Code Section 35-50-6-0.5 “is intended to be a clarification” of prior terms of art
      with respect to credit time and it “does not affect any time accrued before July 1, 2015 . . . .” Ind. Code § 35-
      50-6-0.6 (West 2015). To avoid confusion, throughout this opinion we use the terms defined in Indiana Code
      Section 35-50-6-0.5.

      Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                             Page 2 of 16
      clear and immediate opportunity to have the court on appeal review the

      conditions of his release when they were imposed, but Ryan did not exercise

      that option. He may not now ask this court to review the conditions of his

      release under the guise of a request for credit time. Thus, we affirm the trial

      court’s judgment.


                                  Facts and Procedural History
[3]   Following a two-day trial, on August 14, 2012, a jury found Ryan guilty of two

      counts of sexual misconduct with a minor, both as Class C felonies. On

      October 24, 2012, the trial court sentenced him to an aggregate term of five

      years in the Indiana Department of Correction (“DOC”), with two years

      executed and three years suspended to probation. Ryan filed a direct appeal

      and, in an opinion issued on July 31, 2013, this court reversed his convictions,

      holding that several statements made by the prosecutor during closing argument

      constituted misconduct. Consequently, we remanded for a new trial.


[4]   Five days later, Ryan petitioned the trial court to set an appeal bond “to stay

      execution of his remaining sentence, stay probation[,] and stay the requirement

      that [he] register as a sex offender.” Appellant’s App. at 26. Ryan explained

      that he sought an appeal bond because “the length of time until [the] opinion

      [of the court of appeals] is certified may be quite long,” and he would “suffer

      a[n] irreparable harm by being required to continue to serve time in the [DOC],

      by being required to register for sex offender probation[,] and by being required

      to register on the sex offender registry.” Id. at 28, 30.


      Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 3 of 16
[5]   The trial court held a hearing on Ryan’s petition on September 12, 2013, which

      was about five weeks before Ryan was due to be released from his executed

      term in the DOC. Near the conclusion of the hearing, the court found that

      Ryan presented “a low risk of flight” and “a low risk of dangerousness to the

      community.” Tr. at 17. As such, the court granted Ryan’s petition and “set a

      new bond of $5,000.00 surety.” Id. The court stated that it would “stay

      probation” upon Ryan’s release. Id.


[6]   Immediately following the court’s statements, the State asked whether the court

      would consider GPS monitoring as a condition of Ryan’s release. The court

      agreed and ordered Ryan to be placed on GPS monitoring through Marion

      County Community Corrections (“MCCC”). Ryan objected in light of the

      court’s finding that he was not a flight risk. The court overruled Ryan’s

      objection, stating that “the alleged victim is a child and this will probably come

      as quite a shock to them [sic] if it hasn’t already.” Id. at 18. The court then

      ordered Ryan “to comply with all rules, regulations, procedures and/or

      treatment recommendations, [and] pay all fees” pursuant to his placement with

      the MCCC. Appellant’s App. at 10.


[7]   Thereafter, Ryan posted his bond and, on September 18, reported to the

      MCCC to obtain his GPS monitoring device. At that time, the MCCC required

      Ryan to sign an “Electronic Monitoring Contract” that imposed the following

      relevant “Conditions of Electric [sic] Monitoring”:


              1) Ryan was “required to live in Marion County”;


      Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 4 of 16
        2) Ryan was permitted to travel only to the seven counties
        surrounding Marion and then only for “work-related reasons”;

        3) Ryan was not allowed to leave Marion County without the
        consent of his Community Supervision Manager (“CSM”);

        4) Ryan was not allowed to have overnight stays outside of
        Marion County or travel outside of Indiana without prior
        approval by the trial court;

        5) Neither Ryan nor anyone he lived with was allowed to
        possess alcohol;

        6) Ryan was required to change residences if a roommate
        possessed alcohol in the residence;

        7) Ryan was not allowed to use, purchase, or possess weapons,
        firearms, or ammunition;

        8) Ryan was required to remove from his home any weapons he
        already owned;

        9) Ryan’s roommates, if any, would not be allowed to have
        weapons in the residence;

        10) Ryan was required to allow the MCCC to confiscate any
        weapons, firearms, or ammunition at his home, even if lawfully
        possessed by another resident;

        11) Ryan was required to allow MCCC staff or law enforcement
        officers to enter his residence at any time, without prior notice,
        and without the need for a search warrant;

        12) Ryan was required to allow MCCC staff or law enforcement
        officers to search his person or property at any time upon
        reasonable suspicion that any of these conditions had been
        violated;

Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 5 of 16
         13) Ryan was not allowed to contact anyone who was on
         probation or parole without prior approval from his CSM;

         14) Ryan was not allowed to contact any known felon without
         prior approval from his CSM;

         15) Ryan was not allowed to have “more than two (2) non-
         relatives . . . visit[ing his] home at any given time”;

         16) Ryan was required to allow the MCCC to “monitor all of
         [his] activities . . . includ[ing], but not limited to, monitoring [his]
         residence, [his] employment, and [his] counseling or treatment
         sessions”;

         17) Ryan was required to be available for contact at all times;

         18) Ryan was required to respond to an MCCC contact “within
         a reasonable time (i.e. 15 minutes)”; and

         19) Ryan was required to participate in any additional
         “programming and/or services in-house at [the MCCC] or
         services available in the community” if so ordered by the MCCC.


Id. at 43-45.2 The MCCC also required Ryan to sign a separate “GPS

Program” document, which imposed additional, GPS-specific conditions, such

as how to wear the device, charge the device, and understand the device’s




2
  This list of the conditions imposed on Ryan is not exhaustive. Among other conditions not listed is a
description of the fees imposed on Ryan, in which the document states that Ryan’s failure to make regular
payments of fees may result in “a violation of Home Detention” being filed with the trial court. Appellant’s
App. at 44.

Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                          Page 6 of 16
       signals. Id. at 46-47. Ryan acknowledged that the violation of any of the

       conditions of his release could result in his reimprisonment.


[8]    Two weeks after being released, on October 2 Ryan moved the trial court to

       terminate one of the conditions of his release, namely, the condition that he

       submit to random drug and alcohol testing. Ryan argued that this condition

       was unrelated to assuring either his presence at trial or the safety of another.

       The trial court agreed and, two days later, it ordered the MCCC to remove this

       condition of Ryan’s release. Ryan did not make a similar request for any of the

       other conditions of his release.


[9]    Meanwhile, the Indiana Supreme Court granted the State’s petition for transfer

       of jurisdiction over this court’s opinion in Ryan’s direct appeal. Thereafter, the

       court concluded that the prosecutor’s statements were not misconduct, and the

       court reinstated Ryan’s convictions. Ryan I, 9 N.E.3d at 673. Ryan sought

       rehearing, which the court denied on August 26, 2014.


[10]   About six weeks later, on October 7, 2014, the Marion County Probation

       Department (“MCPD”) began supervising Ryan along with the MCCC. See

       Appellant’s App. at 120; Tr. at 26-27. Despite the MCPD’s involvement, the

       conditions of Ryan’s release did not change at this time. On October 20, the

       MCPD informed Ryan that he was “not to receive [c]redit” time for the time he

       had been supervised by the MCCC. Appellant’s App. at 12.


[11]   Ryan moved the trial court to terminate his placement with the MCCC and

       award him credit time for the time he had spent with the MCCC under the

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 7 of 16
       conditions of his appeal bond.3 The court held a hearing on Ryan’s motion on

       November 21. At that hearing, the State acknowledged that “[Ryan is] being

       monitored by two different entities . . . and it seems rather duplicative at this

       point.” Tr. at 27.


[12]   At the conclusion of the November 21 hearing, the court ordered Ryan to be

       removed from his placement with the MCCC and to begin serving his originally

       ordered probation with the MCPD.4 At this time, Ryan registered as a sex

       offender and began “sex offender treatment.” Id. at 39. The court held a

       separate hearing in December on Ryan’s request for credit time. At that

       hearing, the State argued that Ryan’s release on his appeal bond was analogous

       to a defendant’s release on pretrial bail.5 The trial court agreed, stating:

                As to GPS, I think the—frankly there’s no case law and because
                there’s no statute providing for pretrial—for credit time for GPS
                monitoring because [those monitored are] not considered in
                custody. And so the Court will deny the motion for credit time




       3
         Ryan’s motion appears to have been based on Pharr v. State, 2 N.E.3d 10, 12 (Ind. Ct. App. 2013), in which
       we held that, upon terminating a defendant’s participation in a community corrections program imposed as
       part of his sentence, the trial court must determine the credit time to which the defendant is entitled for the
       period of time he served in that program. But Pharr is inapposite in that it involved a post-incarceration
       defendant’s request for credit time rather than a defendant released pursuant to an appeal bond.
       4
         Ryan’s accrued time with the MCCC was 429 days. This includes the last forty-five days in which he was
       supervised by both the MCPD and the MCCC and which the trial court did not apply to Ryan’s probationary
       term when it formally ordered him to begin his probation on November 21, 2014. It also is not clear what
       happened to the approximately five weeks of executed time Ryan did not serve pursuant to his release on his
       appeal bond.
       5
         Of course, since this court’s opinion in Ryan’s direct appeal was not certified during his release on his
       appeal bond, he was never in fact on pretrial release.

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                             Page 8 of 16
                 for the GPS.


       Id. at 40. The court then entered judgment on Ryan’s motion, and this appeal

       ensued.


                                         Discussion and Decision
[13]   Ryan appeals the trial court’s denial of his motion for credit time for the time he

       served with the MCCC under the conditions of his release on his appeal bond.

       Trial courts are authorized to issue appeal bonds under Indiana Code Chapter

       35-33-9. At the time of Ryan’s petition for an appeal bond, Indiana Code

       Section 35-33-9-1 provided6 that “[a] person convicted of an offense who has

       appealed . . . may file a petition to be admitted to bail pending appeal.” Upon

       granting such a petition, Section 35-33-9-4(a) requires the trial court to “fix bail

       in a reasonable amount, considering the nature of the offense and the penalty

       adjudged, as will insure compliance by the defendant with the terms of the

       bond” and to “make an order containing the terms of bail.” And Section 35-33-

       9-3(a) requires the defendant to promise to:

                 (1) faithfully prosecute his appeal;
                 (2) abide by the order and judgment of the court to which the
                 cause is appealed;
                 (3) surrender himself in execution of the judgment if the appeal
                 be affirmed or dismissed; and
                 (4) surrender himself to the trial court if required by the judgment
                 upon reversal.



       6
           The subsequent amendments to this section are not material to this appeal.


       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015          Page 9 of 16
       Finally, Section 35-33-9-5(c) states:

               If a defendant is admitted to bail under this chapter after he has
               commenced to serve his sentence, and . . . the judgment from
               which the appeal was taken is affirmed, the defendant shall have
               credit on his term of sentence for the time he served before being
               admitted to bail. During the time any defendant is released from
               custody under this chapter, the judgment of conviction shall be stayed.


       (Emphasis added.)


[14]   As our supreme court has recognized: “Neither the United States Constitution

       nor the Indiana Constitution confers a constitutional right to bond pending

       appeal.” Tyson v. State, 593 N.E.2d 175, 177 (Ind. 1992). Rather, “the right to

       bail pending appeal is . . . a matter of legislative grace.” Willis v. State, 492

       N.E.2d 45, 46 (Ind. Ct. App. 1986). As such, “the authority of the courts to

       grant such bail is limited to the authority granted by statute.” Id. And Indiana

       Code Section 35-33-9-1 plainly grants to the trial court the discretion necessary

       to consider a defendant’s petition for bail on appeal. Id. at 47.


[15]   But bail on appeal is also provided for under Indiana Appellate Rule 18. In

       relevant part, that Rule states:


               No appeal bond shall be necessary to prosecute an appeal . . . .
               Enforcement of a Final Judgment . . . shall be stayed during
               appeal upon the giving of a bond . . . . The trial court . . . shall
               have jurisdiction to fix and approve the bond . . . and order a stay
               prior to or pending an appeal. After the trial court . . . decides
               the issue of a stay, the Court on Appeal may reconsider the issue

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015       Page 10 of 16
               at any time upon a showing, by certified copies, of the trial
               court’s action. The Court on Appeal may grant or deny the stay
               and set or modify the bond . . . . This rule creates no right to a
               stay where precluded by law.


       Ind. Appellate Rule 18. As our supreme court has explained:

               Although Ind. Code § 35-33-9-1 assigns the question of bail
               pending appeal to the discretion of the trial court, our appellate
               rules contemplate a role for the appellate courts as well. . . . As
               our Court of Appeals has observed, it would be unconstitutional
               to repose in the trial court the exclusive power to determine
               whether a petitioner should be let to bail pending appeal.
               Willis[,] 492 N.E.2d 45.

                                                       ***

               Although appellate courts do not consider requests for [an
               appeal] bond de novo, neither are they limited to reviewing trial
               court decisions for abuse of discretion. Willis, 492 N.E.2d at 48.
               Because the appellate court is authorized to grant and fix bond, it
               must be able to examine those factors which are pertinent to the
               decision whether to grant bond pending appeal. The appellate
               court must give the trial court appropriate deference, however, on
               those issues which the trial court is in the best position to judge.


       Tyson, 593 N.E.2d at 177-78 (emphasis and footnote omitted).


[16]   The essence of Ryan’s argument on appeal is that the conditions of his appeal

       bond were so above-and-beyond those authorized by Indiana Code Chapter 35-

       33-9 that he is entitled to credit time for the time he spent under those




       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015     Page 11 of 16
       conditions.7 But we cannot agree with Ryan’s premise that he is entitled to

       credit time if the conditions of his release are onerous enough. Where the

       award or denial of credit time is plainly directed by statute, trial courts generally

       do not have discretion in awarding or denying such credit. Molden v. State, 750

       N.E.2d 448, 449 (Ind. Ct. App. 2001). “However, those sentencing decisions

       not mandated by statute are within the discretion of the trial court and will be

       reversed only upon a showing of abuse of that discretion.” Id.


[17]   We read Indiana Code Section 35-33-9-5(c) and Appellate Rule 18 to prohibit

       an award of credit time for the time a defendant is released from custody on an

       appeal bond. Again, Section 35-33-9-5(c) directs “the judgment of conviction

       shall be stayed” while a defendant is “released from custody under this

       chapter.” And Appellate Rule 18 likewise provides for a stay from the

       judgment being appealed. It follows from these mandates to stay the judgment

       of conviction that the issuing court shall likewise stay—and the defendant shall




       7
         The State characterizes Ryan’s argument on appeal as invited error. We cannot agree with this
       characterization. Ryan received a stay of the judgment of his conviction when he invited the court to treat
       him like a bailee. But nothing in that request invited the court to impose, as Ryan alleges happened,
       conditions above and beyond those authorized under Indiana Code Chapter 35-33-9. And our supreme court
       has limited the “factors . . . pertinent” to issuing an appeal bond as follows:
                The consideration of a petition for bond pending appeal starts with the presumption that
                the convicted defendant is guilty, the opposite of the starting point when considering bail
                pending trial. The petitioner bears the burden of demonstrating that there are compelling
                reasons to allow a guilty defendant to remain free pending appeal of his conviction. In
                hearing such petitions, the [reviewing] court should examine three factors: (1) the
                probability of reversible error at trial, (2) the risk of flight, and (3) the potential
                dangerousness of the defendant.
       Tyson, 593 N.E.2d at 178 (citation omitted); see also Anderson v. State, 181 Ind. App. 628, 631, 393 N.E.2d
       238, 240-41 (1979) (reviewing the amount set by the trial court for bail on appeal).

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                           Page 12 of 16
       not earn credit time toward—the defendant’s sentence during his release on an

       appeal bond. Thus, the trial court here had no discretion in denying Ryan’s

       motion for credit time—the court was required to simply apply the mandate of

       Indiana Code Section 35-33-9-5(c). See Molden, 750 N.E.2d at 449.


[18]   This is not to say that Ryan was without a remedy to be relieved of the

       potentially unreasonable conditions of his appeal bond. But his remedy was to

       request immediate review of the trial court’s imposition of those conditions.

       Indeed, within two weeks of his release, Ryan did request the trial court to

       reconsider the condition that he submit to random drug and alcohol screens,

       and the trial court agreed to remove that condition. Ryan could have also

       requested appellate review: the trial court’s judgment on the appeal bond was,

       by way of Appellate Rule 18, immediately reviewable by the court on appeal.


[19]   In this respect, Ryan is not unlike a pretrial bailee. Indiana’s appellate courts

       have long recognized that a judgment on pretrial bail is immediately

       appealable. See, e.g., Bozovichar v. State, 230 Ind. 358, 363, 103 N.E.2d 680, 682

       (1952), overruled on other grounds, Fry v. State, 990 N.E.2d 429 (Ind. 2013). And

       waiting until after the defendant is convicted and sentenced to appeal the

       judgment on pretrial bail renders any questions regarding the propriety of that

       judgment moot and, therefore, typically not subject to review. See, e.g., Partlow

       v. State, 453 N.E.2d 259, 274 (Ind. 1983).


[20]   Similarly, Ryan cannot sit idly by until the conditions of his release expire and

       then have this court review those conditions through a request for credit time.


       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 13 of 16
       If Ryan believed the conditions of his release were unreasonable, he could—as

       he did—ask the trial court to reconsider some or all of those conditions. Or he

       could have requested this court to review those conditions. App. R. 18. But,

       upon the revocation of his appeal bond following the certification of our

       supreme court’s opinion in Ryan I, any complaints Ryan had about the trial

       court’s judgment on his appeal bond were rendered moot. See Alleyn v. State,

       427 N.E.2d 1095, 1100 (Ind. 1981). Thus, it is not proper for Ryan to have

       endured the conditions of his release and waited until his direct appeal was at

       an end only then to request credit time based on the conditions of his release.

       Cf. id. (holding that the relief requested on appeal—a new trial for of an

       allegedly erroneous appeal-bond judgment—was “not proper for the type of

       error alleged”).


[21]   And we have rejected arguments similar to Ryan’s in the context of pretrial bail.

       In particular, we have stated:


               when [the defendant] was released [pretrial] on his own
               recognizance and placed in home detention, he accepted the
               conditions that he now asserts to be the same as those generally
               applying to post-sentence home detainees. However, he chose
               conditional liberty rather than to remain in jail—in which case he
               would have earned more credit time.


       Lewis v. State, 898 N.E.2d 1286, 1290 (Ind. Ct. App. 2009) (emphasis added),

       trans. denied. Likewise, when Ryan was released from incarceration on his

       appeal bond and not ordered to register as a sex offender, he accepted

       conditions that he now asserts to be the same as those generally applying to

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015      Page 14 of 16
       post-incarceration defendants who receive credit time. But, unlike those

       defendants, Ryan chose conditional liberty rather than to remain in jail or to

       register as a sex offender.8


[22]   Finally, we are not persuaded by Ryan’s argument that the denial of his request

       for credit time will deter defendants from exercising their statutory right to

       petition the trial court for an appeal bond. To the contrary, to accept Ryan’s

       argument would only discourage trial courts from exercising their discretion to

       grant defendants appeal bonds with conditions attached. And because Ryan

       had multiple avenues of review available to him regarding the conditions of his

       release, we reject his arguments that a denial of his request for credit time

       implicates due process or is fundamentally unfair.


[23]   In sum, we hold that Indiana Code Section 35-33-9-5(c) and Appellate Rule 18

       prohibit an award of credit time for the time a defendant is released on an

       appeal bond, regardless of the conditions of the defendant’s release. Cf. Kindred

       v. State, 172 Ind. App. 645, 648-49, 362 N.E.2d 168, 170-71 (1977) (holding that

       the defendant had the right to surrender himself while released on his appeal

       bond in order to accrue credit time). We also hold that, insofar as Ryan’s

       arguments require this court to review the conditions of his release on his

       appeal bond, Ryan’s challenge is untimely. Ryan could have sought, but chose

       not to seek, immediate review of the conditions of his release pursuant to



       8
         For the same reasons we rejected the defendant’s Equal Protection and Equal Privileges and Immunities
       arguments in Lewis, we reject Ryan’s arguments here. Lewis, 898 N.E.2d at 1290-91.

       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015                      Page 15 of 16
       Appellate Rule 18. Having forfeited that remedy, Ryan’s challenge to the

       conditions of his release is now moot. Thus, we affirm the trial court’s denial of

       Ryan’s motion for credit time.


[24]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1501-CR-2 | August 26, 2015   Page 16 of 16
