MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 23 2019, 10:20 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustten Hitch,                                           October 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-776
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1605-F6-2820



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019                 Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dustten Hitch (Hitch), appeals the trial court’s denial of

      his motion for jail time credit.


[2]   We affirm.


                                                    ISSUE
[3]   Hitch presents one issue for our review, which we restate as: Whether the trial

      court erred when it denied Hitch’s motion for jail time credit.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 17, 2016, the State filed an Information, charging Hitch with Count I,

      possession of methamphetamine, a Level 6 felony; and Count II, unlawful

      possession of a syringe, a Level 6 felony. Hitch pled guilty to Count I and was

      sentenced to two years suspended to probation. As a condition of his

      probation, Hitch was placed on community corrections and was ordered to

      comply with the specific programs recommended by community corrections,

      which could consist of “work release/residential placement, day reporting,

      home detention, electronic monitoring, counseling or educational programs.”

      (Appellant’s App. Vol. II, p. 60).


[5]   On August 22, 2017, Hitch violated his probation by using marijuana and

      failing to report his living situation to community corrections. On December

      13, 2017, after a verified petition to revoke probation was filed, a fact-finding

      hearing was conducted at which Hitch admitted to the violation. The trial

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019   Page 2 of 6
      court returned him to probation under the same terms and conditions originally

      ordered. On January 2, 2018, he violated his probation a second time by failing

      to comply with the rules and regulations of the work release program. Again, a

      verified petition to revoke probation was filed and Hitch admitted to the

      violation. As before, the trial court ordered Hitch returned to probation under

      the same terms and conditions as originally imposed. On February 27, 2018,

      Hitch violated his probation again when he failed to return to the work release

      program and by bringing contraband into the work release program when he

      did return. On March 28, 2018, after a fact-finding hearing was conducted on

      the verified petition to revoke probation, the trial court ordered Hitch to seek

      inpatient treatment at the Wheeler Mission and to return to probation.


[6]   On October 26, 2018, Hitch violated his probation a fourth time when he failed

      to complete the recommended treatment. On January 9, 2019, at the fact-

      finding hearing, Hitch testified that he had been placed on “house arrest” since

      the previous October. (Transcript p. 29). Robin Winters (Winters), Hitch’s

      probation officer, testified that Hitch was placed on electronic monitoring on

      October 26, 2018, but due to equipment issues, Hitch had only been monitored

      for a few weeks. Before imposing its sentence, the trial court solicited

      recommendations as to Hitch’s credit time. The State entered into evidence a

      “[c]redit [d]ays [r]eport” which determined that Hitch was entitled to 233 days

      of credit. (Appellant’s App. Vol. II, p. 119). The report also noted that Hitch

      had been placed on “[d]ay [r]eporting with electronic monitoring” since

      October 26, 2018. (Appellant’s App. Vol. II, p. 119). At the conclusion of the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019   Page 3 of 6
       hearing, and after Hitch admitted to the violation, the trial court revoked the

       balance of Hitch’s remaining two years to the Bartholomew County Jail, while

       giving him credit for 233 days.


[7]    On January 28, 2019, Hitch filed a motion for jail time credit, in which he

       argued that he was entitled to an additional 75 days of credit for the time he

       was being “monitored electronically.” (Appellant’s App. Vol. II, p. 126). The

       State responded that because Hitch was on electronic monitoring as a condition

       of probation, he was not entitled to the additional credit time. On February 15,

       2019, the trial court denied Hitch’s motion for jail time credit.


[8]    Hitch now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[9]    Hitch contends that the trial court erred when it refused to grant him an accrued

       75 days as credit time towards his sentence. While not disputing that he was on

       electronic monitoring from October 26, 2018 to January 9, 2019, Hitch

       maintains that during this time he “was essentially on home detention and/or

       was confined.” (Appellant’s Br. p. 7). 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). The

       burden is on the appellant to show the trial court erred.


[10]   Generally, a defendant sentenced to probation does not earn credit time. Ind.

       Code § 35-50-6-6; see also Harding, 27 N.E.3d at 332. Exceptions to this rule

       include defendants who are in a work release program and must return to jail
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019   Page 4 of 6
       when not working or participating in other sanctioned activities and those

       confined to home detention who must remain at their residences except for

       work, to obtain medical care, or to attend an educational program or place of

       worship. Id. “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.” Hickman v. State, 81 N.E.3d 1083, 1086 (Ind. Ct. App. 2017). As

       such, electronic monitoring is more akin to daily reporting probation as the

       probationer is not limited to a particular location or confined. Instead,

       electronic monitoring programs use GPS tracking to monitor an offender’s

       whereabouts without restricting him to certain locales. See Electronic Monitoring

       Program, http://www.in.gov./idoc/3513.htm (last visited Oct. 9, 2019).


[11]   At the time of sentencing, Hitch was placed on community corrections for a

       period of two years and ordered to comply with the specific programs

       recommended by community corrections, “which may include work

       release/residential placement, day reporting, home detention, electronic

       monitoring, counseling or educational programs.” (Appellant’s App. Vol. II, p.

       61). As home detention, day reporting, and electronic monitoring are indicated

       as being separate placement options, it can be inferred that Bartholomew

       County community corrections program utilizes them as independent and

       distinct placement alternatives.


[12]   During the dispositional hearing on his fourth probation violation, Hitch

       testified, without any accompanying details, that he had been placed on “house

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019   Page 5 of 6
       arrest” since October. (Tr. p. 29). However, Winters advised the trial court

       that Hitch was “on electronic monitoring.” (Tr. p. 32). She clarified that he

       was placed on electronic monitoring “for only a few weeks, due to equipment

       issues.” (Tr. p. 32). During the proceeding, the State, without any objection

       from Hitch, entered Hitch’s “[c]redit [d]ays [r]eport” into evidence which noted

       that Hitch “was on [d]ay [r]eporting with electronic monitoring: 10/26/18 –

       current.” (Appellant’s App. Vol. II, p. 119). Likewise, Hitch’s motion for jail

       time credit affirmed that he was “monitored electronically” awaiting

       disposition. (Appellant’s App. Vol. II, p. 126).


[13]   Despite Hitch’s assertion that he was on home detention and not on day

       reporting with electronic monitoring, the only evidence he points to in support

       of his argument is a dictionary definition of confinement. He fails to provide

       any details indicating a restrictive lifestyle which confined him to his home, nor

       does he cite to any legal authority awarding credit time to a probationer on day

       reporting with electronic monitoring. Because Hitch failed to carry his burden

       of proof, we cannot conclude that the trial court erred in not giving him credit

       time for the days on day reporting with electronic monitoring.


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that the trial court properly denied Hitch’s

       motion for jail time credit.


[15]   Affirmed.


[16]   Vaidik, C. J. and Bradford, J. concur
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019   Page 6 of 6
