Dustten Hitch v. State of Indiana (mem. dec.) ( 2019 )

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.
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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
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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
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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
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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
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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
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