Randall Earl Myers v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 31 2020, 10:25 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Thomas J. Flynn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randall Earl Myers, January 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1736
v. Appeal from the Vermillion Circuit
Court
State of Indiana, The Honorable Jill D. Wesch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
83C01-1812-F6-191
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020 Page 1 of 6
Case Summary
[1] Randall Earl Myers (“Myers”) challenges as inadequate the credit time applied
to his four-year sentence for Attempted Battery, as a Level 6 felony. 1 He
presents the sole issue of whether he was denied credit time earned during a
month of pre-sentence incarceration in the county jail and a five week
placement in Truman House. We remand for further proceedings relative to
credit time.
Facts and Procedural History
[2] On December 4, 2018, Myers “swung at Officer Brian Sum [of the Clinton
Police Department] in a rude, insolent, or angry manner with a closed fist.”
(Tr. Vol. II, pg. 9.) He was charged with Attempted Battery, Disorderly
Conduct, and Public Intoxication.
[3] On March 5, 2019, Myers pled guilty to Attempted Battery and admitted his
status as a habitual offender. Myers was at that time a pretrial detainee in the
Vermillion County Jail, but he had been accepted into The Truman House, a
twelve-step/behavior modification program. The trial court observed that
Myers had been incarcerated from December 2, 2018 to March 5, 2019 and was
entitled to seventy-nine “actual days” of credit time. Id. at 6. The trial court
ordered Myers to remain in the Truman House program pending a status
1
Ind. Code §§ 35-42-2-1, 35-41-5-1.
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hearing and admonished him that his leaving the program would result in
immediate incarceration.
[4] On June 6, 2019, Myers appeared for a sentencing hearing. He advised the trial
court that he had resided at Truman House for approximately five weeks, he
left because he could not pass a drug screen, he was discharged from the
program, and he had been incarcerated in jail for approximately one month.
The trial court imposed upon Myers a two-year sentence of imprisonment,
enhanced by two years due to his status as a habitual offender. Myers was
credited with eighty days accrued time and eighty days good time credit. He
now appeals.
Discussion and Decision
[5] Myers claims that he was erroneously denied credit time for the days he spent
at Truman House and in jail prior to his sentencing.
[6] “Accrued time” is the amount of time that a person is imprisoned or confined.
I.C. § 35-50-6-0.5(1). “Credit time” is the sum of a person’s accrued time, good
time credit, and educational credit. Id. at (2). Indiana Code Section 35-50-6-4
provides that a person who is not a credit-restricted felon and is imprisoned
awaiting trial for a Level 6 felony is initially assigned to a Class A credit time
assignment. Indiana Code Section 35-50-6-3.1(b) provides that a person
assigned to Class A “earns one day of good time credit for each day the person
is imprisoned for a crime or confined awaiting trial or sentencing.” Because
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1736 | January 31, 2020 Page 3 of 6
credit time is a matter of statutory right, when a trial court finds that a person
has a statutory entitlement, the court has no discretion in awarding it. Hickman
v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017).
[7] One is “imprisoned” when he is confined in a penal facility, but “confinement”
is without a statutory definition for credit time purposes. Id. at 1086.
Substantial control that is less than incarceration can constitute confinement in
the sense of imprisonment. Id. (citing Capes v. State, 634 N.E.2d 1334, 1335
(Ind. 1994)). Not every halfway house is a penal facility. Id. Factors for
consideration include: (1) whether the placement was requested by the person
as a condition of probation or was otherwise voluntary; (2) the degree of
freedom of movement enjoyed by the person; (3) the degree of direct
supervision over the placement exercised by the Department of Correction, a
court, or another state actor; and (4) the degree of autonomy and privacy
enjoyed by the person in conducting his everyday life. Id.
[8] When Myers appeared for sentencing, counsel asked him “how long have you
been incarcerated – do you remember when you started” and Myers replied that
he had been incarcerated “approximately a month,” beginning May 17th and he
clarified that he had been “incarcerated previously under this cause.” (Tr. Vol.
II, pg. 19.) Additionally, Myers estimated that he had stayed at Truman House
for five weeks. Truman House was willing to accept Myers back into its
program; he testified that he “would remain in jail until a bed came up.” Id. at
26.
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[9] The State presented argument assuming that Myers was entitled to seventy-nine
days accrued time and seventy-nine days good time credit, that which had been
calculated at the March 5, 2019 hearing:
I show that he owes in this case a total of 1,302 days and because
that is enhanced by an habitual offender enhancement what he is
sentenced to, if he’s sentenced to the 1,302, he would have 651
actual days to serve, which would be served in the DOC because
it would be more than 366 actual.2
Id. at 27. Despite Myers’s uncontroverted claim that he had been incarcerated a
second time, his entitlement to credit time accrued after the March 5, 2019
hearing was not addressed. Nor was a determination made as to whether
Myers had been confined, within the statutory credit time context, at Truman
House. In the Abstract of Judgment, the trial court simply awarded Myers
eighty days accrued time and eighty days good time credit. Because it appears
from the record before us that Myers is entitled to additional credit time, we
remand for further proceedings.
2
365 days x 4 = 1,460. 1,460 less 79 days accrued time is 1,381. 1,381 less 79 days good time credit is 1,302,
the amount attributed to Myers by the State.
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Conclusion
[10] We remand for a determination of credit time due Myers, if any, based upon his
second incarceration awaiting trial in this cause and his placement in Truman
House.
[11] Remanded.
Kirsch, J., and Mathias, J., concur.
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