MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                   Aug 16 2018, 8:58 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey W. Elftman                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dion Jones,                                              August 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-542
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause Nos.
                                                         34D01-1105-FA-439
                                                         34D01-1407-F4-561
                                                         34D01-1408-F5-636



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                  Page 1 of 10
[1]   The Howard Superior Court ordered the release of Dion Jones (“Jones”) from

      prison on supervised probation on the condition that he complete a re-entry

      court program. As a condition of his admission into the re-entry program, Jones

      agreed to waive his right to any credit for time spent in custody while in the

      program. The trial court terminated Jones from the re-entry program for

      violating its rules. When the court revoked Jones’s probation three months

      later, it awarded Jones credit for the three months he spent in prison from the

      date of his termination from the re-entry program, but not for the earlier period

      Jones spent in prison awaiting the court’s decision to terminate him from the re-

      entry program.


[2]   On appeal, Jones argues that he had a statutory right to credit for the time he

      spent in custody before his termination from the re-entry program, and that his

      agreement to waive his right to this credit time should not be enforceable

      because he did not derive a substantial benefit from being permitted into the re-

      entry program. We hold that the waiver was valid and affirm the trial court’s

      sentencing order.


                                   Facts and Procedural History
[3]   On February 23, 2016, Jones—then serving an aggregate sentence of twelve

      years in the Department of Correction for three separate drug-related

      offenses1—filed a petition to modify his sentence. On April 5, 2016, the trial



      1
       On April 22, 2015, Jones pleaded guilty under Cause No. 34D01-1407-F4-561 to Dealing in Cocaine, a
      Level 4 felony, for which he was sentenced to ten years in prison. Appellant’s App. pp. 121, 125. The same

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                  Page 2 of 10
      court approved Jones’s release from prison into a community transition

      program and ordered the balance of Jones’s sentences suspended to probation.

      As a condition of Jones’s release from prison on supervised probation, Jones

      was ordered to successfully complete the Howard County Re-entry Court

      Program (“the Re-entry Program”). Upon his admission into the Re-entry

      Program, Jones executed an agreement, filed with the court on April 27, 2016,

      in which he agreed to comply with the program’s terms and conditions. This

      agreement contained the following provision:


               Participant agrees to waive his right to earn credit time for any
               time spent in jail or otherwise confined to which he would
               otherwise be entitles [sic] pursuant to Indiana law during
               participation in the Reentry Program.


      Appellant’s App. p. 154. On June 15, 2016, the trial court found that Jones had

      violated the terms and conditions of the Re-entry Program, held him in indirect

      contempt, and ordered him taken into custody. The record is unclear if Jones

      ever was taken into custody in 2016.


[4]   On August 21, 2017, Jones was again held in indirect contempt for violating a

      term of the Re-entry Program and was again ordered taken into custody. On

      August 23, Howard County Community Corrections filed notice of its intent to




      day, Jones was convicted under Cause No. 34D01-1408-F5-636 to Possession of Cocaine, a Level 5 felony,
      and sentenced to three years in prison. Id. at 123. These two sentences were to run concurrently to each other
      and consecutively to a sentence of two years under Cause No. 34D01-1105-FA-00439, which was for an
      older conviction for Class A felony Dealing in Cocaine. Id. at 120.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                    Page 3 of 10
      terminate Jones from the Re-Entry Program for lying to his case manager about

      where he was living and violating the rules of the program, which required

      Jones to keep his case manager apprised of his current address. The court held

      an evidentiary hearing on the matter on September 27, 2017, and on November

      14, the court found that the State had proved by a preponderance of the

      evidence that Jones had lied about where he was living and ordered Jones’s

      termination from the Re-entry Program.

[5]   Later that day, the State filed a petition to revoke Jones’s suspended sentence

      and probation for failing to complete the Re-entry Program, which the court

      had required as a condition of Jones’s suspended sentence. On February 13,

      2018, the court revoked Jones’s probation and ordered the balance of his

      sentence to be served in the Department of Correction. The court awarded

      Jones credit time for the ninety-one days he had spent incarcerated since his

      termination from the Re-Entry Program on November 14, 2017. However, the

      court denied his counsel’s request for credit for the time Jones time spent in

      custody between August 23, 2017 and his termination from the Re-Entry

      Program on November 14, finding that Jones was not entitled to credit time

      until after his termination from the program. Jones now appeals.


                                          Standard of Review
[6]   In general, imposing sanctions for probation violation lies within the trial

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

      discretion. Hickman v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017) (citing

      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)). A trial court abuses its
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018   Page 4 of 10
      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

      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. Id.

      (citing Purdue v. State, 51 N.E.3d 432, 436 (Ind. Ct. App. 2016)).


                                        Discussion and Decision
[7]   On appeal, Jones argues that he had a statutory right to credit for the time he

      spent in custody before his termination from the Re-entry Program and argues

      that it was not within the trial court’s discretion to deny him this credit time.2

      Further, while Jones acknowledges that he agreed to waive his right to credit

      for time spent in custody while participating in the program, Jones attacks the

      validity of this waiver, which he argues should be unenforceable because he did

      not derive a substantial benefit from his participation in the Re-entry Program.


[8]   The State contests Jones’s claim that he enjoyed a statutory entitlement to

      credit time, citing Perry v. State, 13 N.E.3d 909, 911–12 (Ind. Ct. App. 2014),




      2
        At his sentencing, Jones’s counsel argued only that Jones should be entitled to credit for the period he spent
      in custody between August 23, 2017, and his termination from the Re-entry Program on November 14, 2017.
      Tr. pp. 61–62. On appeal, Jones also argues that he was entitled to credit for any time he may have spent in
      custody following his first violation of the Re-entry Program’s rules in 2016. While the trial court did order
      Jones taken into custody on June 15, 2016, the record is silent as to how much (if any) time Jones spent in
      custody for this first violation of the Re-entry Program’s rules. As Jones did not raise the argument that he
      was entitled to credit for any other period below, it is waived on appeal. See Smylie v. State, 823 N.E.2d 679,
      689 (Ind. 2005) (noting that a claim is generally considered forfeit if it is not objected to at trial). However,
      waiver notwithstanding, if any such period of incarceration existed, it would have been during his
      participation in the Re-entry Program. Therefore, the analysis for this indeterminate period and the period
      from August 23, 2017, to November 14 is the same, and whether Jones was entitled to credit time for either
      period turns on the validity of the waiver.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                      Page 5 of 10
      where we held that Indiana Code section 35-50-6-3, which provides a right to

      credit for time spent in confinement while “awaiting trial or sentencing,” did

      not entitle the defendant to credit for time spent on electronic monitoring

      during his participation in a drug court program. Perry, 13 N.E.3d at 911–12.

      (citing Meadows v. State, 2 N.E.3d 788, 792–94 (Ind. Ct. App. 2014)). The State

      argues that because Jones, like the defendant in Perry, is seeking credit for time

      spent during his participation in a program, he was not “awaiting trial or

      sentencing” when he was incarcerated for violating the Re-entry Program’s

      rules. Appellee’s Br. at 9. Emphasizing that the Re-entry Program in his case

      was a probation program rather than a pre-conviction deferral program like the

      drug court program in Perry, the defendant argues that “the statutes governing

      right to credit time should apply.” Appellant’s Br. at 11. However, we need not

      resolve the dispute about whether a statutory right to credit time existed

      because we conclude that Jones’s waiver was valid.


[9]   Arguing that his waiver should be held unenforceable, Jones cites to but

      attempts to distinguish House v. State, 901 N.E.2d 598 (Ind. Ct. App. 2009). In

      House, the defendant appealed the denial of credit for the time he spent on work

      release and in custody as sanctions for violating the rules of his drug court

      program. Id. at 600–601. The defendant in House executed an agreement when

      he entered the drug court program in which he agreed to waive his right to

      credit time. Id. at 599. In holding that the House defendant’s credit time waiver

      was valid, we cited Creech v. State, 887 N.E.2d 73 (Ind. 2008), where our

      supreme court held that a defendant could waive their right to direct appeal in a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018   Page 6 of 10
       plea agreement, which was justified on the ground that such a waiver could be

       of “substantial benefit to both the defendant and society.” House, 901 N.E.2d at

       600 (citing Creech, 887 N.E.2d at 75); see also United States v. Hare, 269 F.3d 859,

       861 (7th Cir. 2001) (noting that avoiding appeals can save the State

       considerable time and expense, and that defendants may value the State’s

       concessions in exchange for this benefit more than the right to appeal). In

       House, we reasoned that the defendant likewise gained substantial benefits by

       being allowed to participate in a drug court program, the successful completion

       of which would result in his conviction and sentence being set aside. 901

       N.E.2d at 601. We further held that this substantial benefit justified the

       defendant’s waiver of his right to credit time. Id.3


[10]   Jones argues that because his Re-entry Program was not a pre-conviction

       deferral program like the drug court program discussed in House, his

       participation in it did not provide substantial benefits, and his waiver should

       therefore be held invalid. In further support of his argument that such deferral

       programs do not provide special benefits which uniquely justify foregoing credit




       3
         The defendant in House also argued that he did not understand the waiver provision when he signed the
       drug court program’s participation agreement containing it. 901 N.E.2d at 600. Noting that the defendant did
       not claim to have been coerced or misled into signing the agreement, we held that the signed agreement was
       sufficient to establish that the waiver was knowing and voluntary. Id. at 601 & n.2. In the instant case, Jones
       likewise does not assert that he was coerced or misled into signing the Re-entry Program participation
       agreement. He does make the ambiguous statement that his decision to “waive his rights was not a bargained
       for exchange between himself and the State of Indiana with a hope of deferral upon completion, but a plea to
       the court to receive some lessening of supervision which resulted in the requirement he waive his right to
       credit time.” Appellant’s Br. at 11. If this was intended to suggest that Jones did not understand the waiver
       when he executed the Re-entry Program participation agreement, we conclude that such an argument fails
       for the same reasons as the defendant’s voluntariness argument in House.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                    Page 7 of 10
       time, he cites Perry and Meadows, supra. In those cases, we held that various

       statutes did not grant the defendants a right to credit for time spent on

       electronic monitoring while participating in their respective drug court

       programs, noting some of the benefits and drawbacks of deferral programs to

       explain the policy supporting this holding. See Perry, 13 N.E.3d at 911–12

       (noting that not receiving credit for time on electronic monitoring is one of the

       negative consequences for failing to successfully complete a drug court

       program); Meadows, 2 N.E.3d at 792–94 (noting that deferral programs provide

       “an opportunity for those qualified to avoid conviction and sentence, but only if

       they comply with the conditions of the program.”).4 Jones’s reliance on these

       cases is misplaced.


[11]   While Perry and Meadows both discussed the differences between deferral

       programs and post-conviction programs, neither case involved a waiver, and

       both cases analyzed the separate question of whether a statutory right to credit

       time existed in the first place. Perry, 13 N.E.3d at 911–12; Meadows, 2 N.E.3d at

       792–94. House also discussed the benefits of deferral programs and held that

       these benefits justified allowing a defendant to waive their right to credit time,




       4
         These cases also considered the distinction between deferral programs and post-conviction programs
       relevant because certain statutes, by their terms, do not apply to deferral programs. For example, in Meadows,
       we held that Indiana Code section 35-38-2.6-6(a), which provides that a person “placed in a community
       corrections program under this chapter is entitled to earn credit time,” only applied to people placed in such
       programs following conviction, not people entering them as a condition of deferral, because the entire
       chapter “applies to the sentencing of a convicted person.” 2 N.E.3d at 792 (citing I.C. § 35-38-2.6-1(a))
       (emphasis in original).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018                    Page 8 of 10
       but it did not discuss other kinds of programs or support the negative inference

       that Jones tries to establish, namely, that post-conviction programs do not offer

       substantial benefits. See House, 901 N.E.2d at 600–601.


[12]   Jones points out that unlike with pre-conviction deferral programs, his

       successful completion of the Re-entry Program would not prevent him from

       having a criminal conviction on his record or from having to serve the

       remainder of his sentence on probation. While this is true, and pre-conviction

       deferral programs do certainly offer substantial benefits, it does not follow that

       Jones did not receive substantial benefits by being allowed to participate in the

       Re-entry Program. Contingent upon his completion of the Re-entry Program,

       the trial court granted Jones the opportunity to serve his sentence on probation,

       leave prison, and reintegrate into society. In exchange for these benefits, Jones

       agreed to waive his right to credit for time spent in custody during his

       participation in the program. Requiring participants in probation programs to

       waive their rights to credit time can also create a disincentive for violating the

       program’s terms, beyond revocation of probation only, and should help deter

       defendants from entering into such programs without a commitment to

       following their rules because they have nothing to lose.


[13]   “The grant of probation or conditional release is a favor granted by the State,

       not a right to which a criminal defendant is entitled.” Parker v. State, 676 N.E.2d

       1083, 1085 (Ind. Ct. App. 1997) (quoting Menifee v. State, 600 N.E.2d 967, 969

       (Ind. Ct. App. 1992), decision clarified on denial of reh’g, 605 N.E.2d 1207 (Ind. Ct.

       App. 1993)). Jones had no right to release on probation, and it was within the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018   Page 9 of 10
       trial court’s discretion to grant Jones probation on the condition that he

       complete the Re-entry Program. Jones derived substantial benefits from his

       participation in the Re-entry Program, and there is no evidence that his

       agreement in exchange to waive his right to credit time was unknowing or

       involuntary. Thus, we hold that the wavier was valid.


                                                 Conclusion
[14]   We conclude that Jones expressly waived any rights he may have had to credit

       for time he spent in prison awaiting the trial court’s decision to terminate him

       from the Re-entry Program. We further conclude that this waiver was valid,

       and that the trial court’s decision to deny Jones this credit time was

       consequently within its discretion. We therefore affirm the trial court’s

       sentencing order.


[15]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-542 | August 16, 2018   Page 10 of 10
