Mark Buggs v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 9:15 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Buggs, February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2215 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge The Honorable Richard E. Hagenmaier, Commissioner Trial Court Cause No. 49G21-1307-FA-42721

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 1 of 7

Statement of the Case [1] Mark Buggs appeals the trial court’s sentencing order following the revocation

of his placement in a community corrections facility. Buggs raises one issue for

our review, namely, whether the trial court erred when it denied him good time

credit for sixty days he served in the work release program. Buggs contends

that community corrections lacked the authority to deprive him of good time

credit. The State does not dispute Buggs’ contention on appeal. We agree and

reverse and remand with instructions.

Facts and Procedural History [2] On March 3, 2014, Buggs pleaded guilty to dealing in cocaine, as a Class B

felony, and two counts of neglect of a dependent, as Class C felonies. On April

14, the trial court accepted his guilty plea and sentenced him to an aggregate

term of six years, with three years to be served in the Department of Correction

and three years to be served in the Marion County Community Corrections

Program. [3] On April 14, 2015, the trial court approved Buggs’ placement in a community

transition program. Buggs began his placement in the Marion County

Community Corrections Work Release Program on October 20. On October

27, Buggs was deprived of sixty days of good time credit. 1 On December 15,

1 There is no information in the record to indicate the reason Community Corrections deprived Buggs of sixty days of good time credit.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 2 of 7

the State filed a notice of community corrections violation, which alleged that

Buggs had violated two conditions of his placement because he failed to return

to the residential center after he had been released on an approved pass. The

trial court then issued an order for his arrest, and he was arrested on December

25, 2016. On August 3, 2017, the trial court held a hearing at which Buggs

admitted to both of the violations. The parties then discussed the credit time

that Buggs had been denied, and the following conversation occurred:

THE COURT: So it’s 90, 90 days, so it’s 60 days on the sheet but I think it’s 90 days.

[Community Corrections Team Officer]: He had 30 days deprived while he was in DOC[,] that was on September 16, 2015.

THE COURT: Okay, all right and add 60 at work release.

[Community Corrections Team Officer]: 60 yeah work release.

THE COURT: All right.

Tr. Vol. II at 5. The State did not object or otherwise dispute those statements

made by the Community Corrections Team Officer. [4] Buggs then asserted that the community corrections program did not have the

authority to take away credit time. In response, the State stated: “I’ve heard of

community corrections being able to take away good time credit[.]” Id. at 6.

On September 7, the trial court held a sentencing hearing. At the start of that

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 3 of 7

hearing, Buggs stated that there were two questions of credit time at issue. The

first was thirty days he was denied while he was at the Department of

Correction.2 The second “is 60 days taken from work release under Marion

County Community Corrections[.]” Id. at 10. The State responded and stated

that Buggs “was given a hearing and opportunity and he admitted to the

violation so his credit time was deprived at work release.” Id. at 11. The trial

court held that community corrections could deny credit time. The trial court

revoked Buggs’ placement in community corrections and gave him credit time

for 881 actual days served plus 791 credit days. In its sentencing order, the trial

court noted that Buggs lost thirty days of credit time while he was in the

Department of Correction and sixty days while he was in the work release

program. This appeal ensued.

Discussion and Decision [5] Buggs contends that the trial court erred when it honored the community

corrections’ deprivation of credit time and withheld sixty days of good time

credit because community corrections did not have the authority to deprive him

of credit time. [6] We first note that the State contends Buggs has waived this issue on appeal

because he failed to provide an adequate record. Specifically, the State asserts

that “the only documentation [Buggs] has included with respect to the credit

2 Buggs does not appeal the deprivation of those thirty days.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 4 of 7

time calculation on appeal is two one-page documents, one page of which has

no information with respect to who authored it and the second of which was

allegedly authored by someone in community corrections.” Appellee’s Br. at

11-12. Further, the State asserts that “[i]t is unclear whether the deprivations

occurred due to sanctions [Buggs] received while in the D.O.C. or while in

community corrections.” Id. at 12. [7] But Buggs provided the transcripts from the August 3 and September 7

hearings, which provide information on the issue of credit time. And it is clear

from those transcripts that the State did not dispute the fact that community

corrections deprived Buggs of sixty days of credit time. During the August 3,

2017, hearing, the Community Corrections Team Officer stated that Buggs was

deprived of thirty days while he was in the Department of Correction and sixty

days while he was on work release. And the State responded and stated: “I’ve

heard of community corrections being able to take away good time credit[.]”

Tr. Vol. II at 6. Further, during the September 7 sentencing hearing, Buggs

stated that one of the issues regarding credit time “is 60 days taken from work

release under Marion County Community Corrections[.]” Id. at 10. The State

replied that Buggs “was given a hearing and opportunity and he admitted to the

violation so his credit time was deprived at work release.” Id. at 11. The record

is clear both that Buggs preserved the issue, and the State did not dispute, that

community corrections had deprived Buggs of sixty days of credit time. As

such, Buggs provided an adequate record and we will reach the merits of Buggs’

appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 5 of 7 [8] On the merits, Buggs contends that the trial court erred when it miscalculated

his earned credit time because it honored the deprivation of credit time by

community corrections and that community corrections lacked the authority to

deprive him of credit time. Credit time is a matter of statutory right, and trial

courts do not have discretion in awarding or denying such credit. Hickman v.

State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017). Whether Buggs is entitled to

additional credit time presents a question of statutory interpretation, which this

court reviews de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016). [9] In support of his contention, Buggs relies on Shepard v. State, 84 N.E.3d 1171,

1174 (Ind. 2017), in which the Indiana Supreme Court held that, absent rules

that expressly pertain to the delegation of good time credit deprivation powers,

the community corrections director lacked authority to deprive the defendant of

any earned good time credit. The State does not dispute this issue on appeal

and concedes that “if the community corrections program did in fact deprive

[Buggs] of 60 days of good time credit that he earned while serving his sentence

in the community corrections program, it was without authority to do so.”

Appellee’s Br. at 13. The State further acknowledges that Buggs “may be

entitled to receive 60 additional days of good credit time,” which “would

amount to 851 days of good time credit as of the time of his community

corrections revocation hearing (881 days of actual time served minus 30 days of

good time credit that the D.O.C. previously deprived [Buggs] of, which [Buggs]

does not challenge.” Appellee’s Br. at 13-14. Our Supreme Court’s opinion in

Shepard requires that Buggs’ earned credit time be recalculated. Accordingly,

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 6 of 7

we reverse the trial court’s determination as to Buggs’ good time credit, and we

remand to the trial court with instructions to reinstate sixty days of good time

credit and to recalculate Buggs’ credit time. [10] Reversed and remanded with instructions.

Mathias, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 7 of 7