Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
                                                             FILED
                                                           Jan 29 2013, 9:04 am
of establishing the defense of res
judicata, collateral estoppel, or the law                         CLERK
                                                                of the supreme court,
of the case.                                                    court of appeals and
                                                                       tax court




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

RUDY J. SMITH                                     GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RUDY J. SMITH,                                    )
                                                  )
        Appellant-Petitioner,                     )
                                                  )
               vs.                                )       No. 53A04-1202-PC-280
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Respondent.                      )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                          The Honorable Kenneth G. Todd, Judge
                             Cause No. 53C03-1010-PC-2680


                                       January 29, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

          Rudy Smith appeals the denial of his petition for post-conviction relief. We

affirm.

                                            Issue

          Smith raises three issues, which we consolidate and restate as whether the post-

conviction court properly denied his request for credit time.

                                            Facts

          In 2005, Smith was sentenced to eight years, with one year executed and seven

years suspended, for Class B felony dealing in cocaine and Class D felony resisting law

enforcement. Smith was also sentenced to five years probation. At sentencing, Smith

was credited for the sixteen days he was in jail awaiting trial and the 182 days he was on

pretrial home detention. Smith was required to serve 150 additional days of home

detention to fulfill his original executed sentence. Prior to the 2005 sentencing, Smith

began a substance abuse program as a condition of probation.           Smith successfully

completed this program in 2006.

          On March 21, 2009, while on probation following his home detention, Smith was

alleged to have violated probation by committing the new offense of dealing in cocaine.

On September 2, 2009, Smith admitted to the alleged violation and was ordered to serve

five years of his previously suspended sentence.

          On September 22, 2011, Smith filed an amended petition for post-conviction relief

asserting that he was entitled to credit time for time served on house arrest in 2005 and

2006 and for his 2006 completion of a substance abuse program. On January 20, 2012,

                                              2
after a hearing, the post-conviction court denied the petition, concluding that Smith had

already been credited for all of the time served on home detention and that he was not

statutorily entitled to credit time for the substance abuse program he completed in 2006.

Smith now appeals.

                                        Analysis

      Smith argues that he was improperly denied credit for time served on home

detention and for his completion of a substance abuse program.            Generally, the

completion of the direct appeal process closes the door to a criminal defendant’s claims

of error in conviction or sentencing. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009).

However, defendants whose appeals have been rejected are allowed to raise a narrow set

of claims through a petition for post-conviction relief. Id. (citing Ind. Post-Conviction

Rule 1(1)). A post-conviction court must make findings of fact and conclusions of law

on all issues presented in the petition. Id. (citing P-C.R. 1(6)). The findings must be

supported by the facts, and the conclusions must be supported by the law. Id. “Our

review on appeal is limited to these findings and conclusions.” Id.

      The petitioner bears the burden of proof, and an unsuccessful petitioner appeals

from a negative judgment. Id. A petitioner appealing from a negative judgment must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite to that reached by the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion and the post-conviction court has reached the

opposite conclusion. Id.

                                            3
        Smith argues that the denial of credit for his time served on home detention in

2005 and 2006 is clearly erroneous.1 Smith relies on Purcell v. State, 721 N.E.2d 220,

223-24 (Ind. 1999), Dishroon v. State, 722 N.E.2d 385, 388-89 (Ind. Ct. App. 2000),

superseded by statute, and Stith v. State, 766 N.E.2d 1266, 1268 (Ind. Ct. App. 2002),

which held in various contexts that an individual is entitled to credit toward his or her

sentence for time served on home detention. These cases are distinguishable, however,

because unlike Purcell, Dishroon, and Stith, Smith received credit for the time he served

on home detention in 2005 and 2006 toward his original one-year executed sentence.

Nothing in these cases stands for the proposition that time served on home detention

should be credited toward a defendant’s original sentence and then again toward the

sentence imposed following a violation of probation. Smith has not established that the

post-conviction court’s denial of additional credit time was clearly erroneous.

        Smith also asserts that he was entitled to 180 days of additional credit time for

successfully completing a substance abuse program in 2006. Indiana Code Section 35-

50-6-3.3(b)(3)(B) allows a person to earn credit time if, “while confined by the

department of correction,” the person is in credit Class I, demonstrates a pattern

consistent with rehabilitation, and successfully completes the requirements to obtain a

1
  To the extent the prosecutor generally agreed that Smith was entitled to credit for the time served on
home detention at the post-conviction relief hearing, we do not believe the prosecutor intended to concede
that Smith was entitled to credit toward his original sentence and to credit toward the sentence imposed
following his violation of probation for the same time served on home detention. Similarly, we do not
believe that the post-conviction court’s observation during the hearing that there might be less of a
question regarding the credit for home detention was an oral pronouncement of its ruling where it went on
to state, “I’ll take a look at it and I’ll issue an order.” Tr. p. 7. The post-conviction court properly
considered the arguments made at the hearing in light of the credit time Smith actually received for his
home detention when it denied his petition.


                                                    4
certificate of completion of a substance abuse program approved by the department of

correction. At the hearing, Smith acknowledged that he was on home detention and not

in the department of correction when he completed the program. As such, we cannot

conclude that he was “confined by the department of correction” when he completed the

program. Ind. Code § 35-50-6-3.3(b).

      To the extent he relies on Rodgers v. State, 705 N.E.2d 1039, 1042 (Ind. Ct. App.

1999), for the proposition “an inmate earns the right to credit time under the education

credit statute when the inmate successfully completes the requirements for the degree as

long as the inmate has, until that point, demonstrated a pattern consistent with

rehabilitation.” Rodgers, however, is distinguishable for a variety of reasons. First, the

statutes at issue in Rodgers have been amended, and Smith provides no analysis of those

changes. Second, Rodgers earned the credit time while in a regional corrections work

release program, not while on home detention. Finally, nothing in Rodgers suggests that

a person should be able to “bank” credit time to be used toward some future probation

revocation.   To the contrary, the court observed that Rodgers’s “entitlement to the

education credit time accrued immediately upon his completion of the degree.” Rodgers,

705 N.E.2d at 1043. Accordingly, Smith has not shown that the post-conviction court

erroneously denied him credit for his 2006 completion of a substance abuse program

while on home detention.

                                       Conclusion

      Smith has not established that the post-conviction court improperly denied his

petition. We affirm.

                                            5
      Affirmed.

BAKER, J., and RILEY, J., concur.




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