Dustten Hitch v. State of Indiana (mem. dec.)

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