Dillon Martin v. State of Indiana (mem. dec.) ( 2017 )

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.
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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).
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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
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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).
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[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,
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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
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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.
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