Christopher Harding v. State of Indiana , 2015 Ind. App. LEXIS 130 ( 2015 )

Mar 04 2015, 8:09 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Harding, March 4, 2015
Appellant-Defendant, Court of Appeals Case No.
34A05-1410-CR-491
v. Appeal from the Howard Superior
Court.
The Honorable William C. Menges,
State of Indiana, Jr., Judge.
Appellee-Plaintiff. Cause No. 34D01-1204-FA-345
Darden, Senior Judge
Court of Appeals of Indiana | Opinion 34A05-1410-CR-491 | March 4, 2015 Page 1 of 6
Statement of the Case
[1] Christopher Harding appeals the trial court’s calculation of credit for the time
he served prior to the revocation of his probation as well as the sentence
imposed following the revocation. We reverse and remand with instructions.
Issue
Whether the trial court erred in calculating Harding’s credit time
for the time he served prior to the revocation of his probation and
sentencing him following the revocation.
Facts and Procedural History
[2] In April 2012, Harding was charged with drug related offenses and was
incarcerated for 181 days from April 19, 2012 through October 16, 2012. He
pleaded guilty to Class B and D felonies, and on October 17, 2012, the trial
court sentenced him to 5110 days in the Department of Correction with 3285
days executed, including 2555 days in the DOC, followed by 730 days on in-
home detention; as well as 1825 days suspended to probation. Harding was
incarcerated at the DOC from October 17, 2012 until February 12, 2014, which
is a total of 483 days.
[3] On February 12, 2014, the trial court modified Harding’s original sentence.
Specifically, the trial court suspended the incarcerated portion of Harding’s
remaining sentence at the DOC and placed him on supervised probation with
the condition that he successfully complete the Howard County Community
Corrections Re-Entry Program. On April 4, 2014, Harding violated the terms
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and conditions of the Re-Entry Program, and the trial court issued a warrant for
his arrest, directing that he be held without bond.
[4] Harding was arrested on May 30, 2014, and admitted the Re-Entry Program
violation at a July 2, 2014 hearing. That same day, the State filed a motion to
revoke Harding’s probation based on his termination from the Re-Entry
Program. Harding admitted the violation of probation at an October 9, 2014
hearing. Harding was incarcerated 132 days from May 30, 2014, until October
9, 2014.
[5] The trial court revoked Harding’s probation and suspended sentence and
ordered him to serve the remaining balance of his sentence at the DOC which
the court calculated was 3897 days with 264 credit days, for a total remaining
sentence of 3633 days. Harding appeals the award of credit time and sentence.
Discussion and Decision
[6] Harding argues that the trial court erred in calculating the credit time for the
time he served prior to the revocation of his probation. We agree. We review
the trial court’s factual determinations for an abuse of discretion, and legal
conclusions de novo. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App.
2002).
[7] Because credit time is a matter of statutory right, trial courts do not have
discretion in awarding or denying such credit. James v. State, 872 N.E.2d 669,
671 (Ind. Ct. App. 2007). A person who is not a credit restricted felon and who
is imprisoned for a crime or awaiting trial or sentencing is initially assigned to
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Class I. Id. (citing Ind. Code § 35-50-6-4). A person assigned to Class I earns
one day of credit time for each day he is imprisoned for a crime or is confined
awaiting trial or sentencing. Id. (citing Ind. Code § 35-50-6-3). On appeal, it is
the appellant’s burden to show that the trial court erred. Gardner v. State, 678
N.E.2d 398, 401 (Ind. Ct. App. 1997).
[8] We now turn to the calculation of Harding’s credit time. At the outset, it is
helpful to clarify that Harding and the State agree that Harding is entitled to
credit time for: 1) his pretrial incarceration from April 19, 2012 to October 16,
2012, including credit time, which is 362 days; 2) his incarceration in the DOC
from October 17, 2012 through February 12, 2014, including credit time, which
is 966 days; and 3) his incarceration from May 30, 2014 through October 9,
2014, while he was incarcerated before the probation revocation hearing, which
is 264 days, including credit time. This is 1592 days of credit time.
[9] Harding and the State disagree, however, as to whether Harding is entitled to
credit time while he was on probation from February 13, 2014 until his April 4,
2014, violation and from April 4, 2014 until May 30, 2014, while he was
apparently evading an arrest warrant.
[10] As to the period of probation, Indiana Code section 35-50-6-6 provides that a
person does not earn credit time while on probation. Senn v. State, 766 N.E.2d
1190, 1202 (Ind. Ct. App. 2002). Exceptions to this rule include defendants
who are in a work release program and must return to jail when not working or
participating in other sanctioned activities and those confined to home
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detention who must remain at their residences except for work, to obtain
medical care, or to attend an educational program or place or worship. Id. at
1198.
[11] Here, however, the record reveals only that Harding was on probation and was
required to complete a re-entry program as one of the terms and conditions of
this probation. Harding has not alleged or shown that the re-entry program was
so restrictive that it required him to return to jail when not working or be
confined to his home. Harding has not met his burden to show the trial court
erred. See Gardner, 678 N.E.2d at 401.
[12] As for the period from April 4, 2014 through May 30, 2014, when Harding was
apparently evading arrest, we note that there is no credit time for evasion. If
Harding was incarcerated during this time, it was his burden to prove it, and he
has again failed to show that the trial court erred. See id. Harding is entitled to
the previously calculated 1592 days of credit.
[13] The parties also disagree about the balance of executed days to which the 1592
days of credit should be applied. Our review of the evidence reveals that the
trial court initially sentenced Harding to 5110 days in the Department of
Correction with 3285 days to be executed, and 1825 days suspended to
probation. However, after the trial court revoked Harding’s probation at the
October 9, 2014 hearing, the trial court also revoked Harding’s previously
suspended 1825-day probation sentence. The revocation of the suspended
sentence, which was within the trial court’s discretion pursuant to Indiana Code
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1
section 35-38-2-3, conforms to the original 5110-day sentence imposed by the
court. When the 1592 days of credit time are applied to this original sentence,
the State is correct that the balance of Harding’s sentence to be served is 3518
days.
[14] We reverse and remand with instructions for the trial court to award Harding
1592 days of credit time and apply it to Harding’s 5110-day original sentence,
leaving a 3518-day sentence.
Kirsch, J., and May, J., concur.
1
Indiana Code section 35-38-2-3 provides that if the trial court finds that a person has violated a probation
condition, the court may order execution of all or part of the sentence that was suspended at the time of
initial sentencing.
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