Dillon Martin v. State of Indiana (mem. dec.)

FILED MEMORANDUM DECISION Dec 06 2017, 9:16 am

Pursuant to Ind. Appellate Rule 65(D), this CLERK Indiana Supreme Court Memorandum Decision shall not be regarded as Court of Appeals and Tax Court precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office LLC Attorney General of Indiana Brooklyn, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dillon Martin, December 6, 2017

Appellant-Defendant, Court of Appeals Case No. 32A01-1610-CR-2472 v. Appeal from the Hendricks Superior Court. The Honorable Mark A. Smith, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 32D04-1307-FC-91

Darden, Senior Judge

Statement of the Case [1] Dillon Martin appeals the sentence the trial court imposed after revoking his

placement in a work release program. We reverse and remand.

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 1 of 7

Issue [2] Martin presents one issue for our review, which we restate as: whether Martin

was improperly divested of good time credit he earned while in a community

corrections work release program.

Facts and Procedural History [3] On July 26, 2013, the State charged Martin with possession of a narcotic drug 1 as a Class C felony. Pursuant to a plea agreement, Martin pleaded guilty to the

charge on May 20, 2014 and was sentenced to 1,460 days with 730 days

suspended to probation. Martin was to serve his executed time on home

detention. [4] Shortly thereafter on September 12, 2014, the State filed a notice of probation

violation for a failed drug screen in which Martin tested positive for morphine.

He admitted to the violation and was sentenced to 120 days at the Department

of Correction (DOC) with credit for 40 days plus 40 days of good time credit.

Martin was to complete the balance of his original home detention sentence

upon release from the DOC. [5] The State again filed a notice of probation violation on February 25, 2015,

alleging that Martin failed another drug screen by testing positive for marijuana.

Martin admitted to violating the conditions of his home detention, and the

1 Ind. Code § 35-48-4-6 (2006).

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 2 of 7

court sentenced him to 216 days at the DOC with credit for 27 actual days and

27 days of good time credit. [6] On November 9, 2015, the State filed a notice of probation violation alleging

Martin committed an additional criminal offense by unlawfully possessing a

syringe. Additionally, on December 7, 2015, the State filed yet another notice

of probation violation alleging Martin had committed the additional offenses of

possession of paraphernalia, possession of paraphernalia with a prior, and

possession of marijuana. In April 2016, Martin admitted to the violation that

alleged he had committed three new drug offenses, and the court sentenced him

to serve 568 days on work release and terminated his probation as unsuccessful. [7] Subsequently, on September 6, 2016, the work release facility filed documents

with the court notifying it that Martin had violated the rules in numerous

instances and requesting that he be terminated from the work release program

and immediately removed from the facility. The documents reflected that on

May 15, 2016, Martin was written up and sanctioned for possessing tobacco in

the secured area. On July 18, 2016, Martin was written up for disorderly

conduct and was penalized by a loss of 30 days of good time credit. The

following day, Martin was again written up for disorderly conduct and was

sanctioned by a loss of 60 days of good time credit. On August 24, 2016,

Martin was written up and sanctioned for using morphine without a

prescription based upon a failed drug screen. Consequently, he lost an

additional 30 days of good time credit. Finally, on September 2, 2016, as a

result of another failed drug screen, Martin was found to have used codeine and

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 3 of 7

morphine without a prescription. In lieu of sanctions, the work release

department requested that Martin’s work release be revoked. [8] The court held an evidentiary hearing on the State’s notice of work release

violation on September 26, 2016. Martin admitted to the violation, and the

court revoked his work release placement and sentenced him to 568 days in the

DOC with credit for 155 actual days served and 35 days of good time. Martin

now appeals.

Discussion and Decision [9] Martin contends he was wrongly deprived of good time credit when, following

the revocation of his work release placement, he was ordered to serve 568 days

with credit for 155 actual days and only 35 days of good time credit. [10] Some statutory background will be helpful to our discussion. A defendant

placed directly in a local community corrections program is entitled to earn

good time credit. Ind. Code § 35-38-2.6-6(c) (2015). The amount of credit time

earned depends on the class of the offender. See Ind. Code § 35-50-6-3 (2015).

When it comes to dealing with an offender who is found to have violated the

terms of his placement, the legislature has given community corrections

directors four alternatives. The director may (1) change the terms of the

placement; (2) continue the placement; (3) reassign the offender to a different

program; or (4) request that the court revoke the placement and commit the

offender to jail or the DOC for the remainder of his sentence. Ind. Code § 35-

38-2.6-5 (2015).

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 4 of 7 [11] Here, Martin served 155 days on work release. Thus, Martin earned 155 days

of good time credit, and the parties present no disagreement as to the

calculation of Martin’s earned good time credit. However, when Martin

violated the work release rules, the director deducted days from Martin’s earned

good time credit instead of utilizing the four alternatives set forth in Indiana

Code section 35-38-2.6-5. The director’s affidavit in support of the work release

facility’s petition to terminate Martin’s work release placement indicates that

Martin was deprived of 30 days of good time credit on July 18, 2016, 60 days of

good time credit on July 19, 2016, and an additional 30 days of good time

credit on August 24, 2016. This amounts to 120 days of good time credit that

was taken away by the work release director due to Martin’s conduct violations.

This was later reflected in the trial court’s order revoking his work release

placement and ordering him to serve the remainder of his sentence in the DOC.

Martin asserts the director lacked the authority to take away his good time

credit. [12] Although our legislature has provided for the deprivation of good time credit

for offenders directly placed in community corrections programs, the statute

does not expressly give the directors of these programs such authority. Rather,

the statute provides that an offender who, upon direct placement, is in a

community corrections program may be deprived of earned good time credit

“as provided under rules adopted by the department of correction under IC 4-

22-2.” Ind. Code § 35-38-2.6-6(d) (2015). The DOC, as of yet, has not adopted

any rules in this regard. Thus, as our Supreme Court very recently determined,

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 5 of 7

while this provision gives the DOC discretion to promulgate rules related to the

deprivation of earned credit time, including the delegation of such authority to

other entities, for reasons not known to us, the DOC has not done so. Shepard

v. State, No. 84S01-1704-CR-190 (Ind. Oct. 20, 2017) (holding that community

corrections director lacked authority to deprive defendant of earned good time

credit and reversing trial court’s good time credit determination that did not

include good time credit defendant earned while in work release program).

Accordingly, the director of work release in this case was without authority to

deprive Martin of earned credit time. [13] In support of the director’s actions in this case, the State cites Indiana Code

subsection 35-50-6-5(a)(2) and (3) (2015). Subsection (a) provides that an

offender may be deprived of good time credit for a violation of a rule of a penal

facility or a community corrections program. However, a panel of this Court

has previously held that deprivation of earned credit time for offenders in

community corrections programs is governed by Indiana Code section 35-38-

2.6-6(d) (rules adopted by the DOC) and not by Indiana Code chapter 35-50-6

(statutes that establish procedures for release from imprisonment and credit

time). See Campbell v. State, 716 N.E.2d 577 (Ind. Ct. App. 1999) (op. on reh’g).

Conclusion [14] For the reasons stated, we conclude the work release director lacked the

authority to deprive Martin of any earned good time credit. Accordingly, we

reverse the trial court’s good time credit determination and order the trial court

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 6 of 7

on remand to recalculate Martin’s good time credit to include the 120 days he

earned while serving in the work release program. [15] Reversed and remanded with instructions.

Vaidik, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1610-CR-2472 | December 6, 2017 Page 7 of 7