Arthur B. Greco, Jr. v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be regarded
as precedent or cited before any court except
for the purpose of establishing the defense of Aug 14 2014, 9:36 am
res judicata, collateral estoppel, or the law of
the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS W. VANES GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
MARJORIE LAWYER-SMITH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ARTHUR B. GRECO, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1401-CR-7
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diane Ross Boswell, Judge
Cause No. 45G03-1210-FD-246 & 45G03-1306-FD-119
August 14, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Arthur B. Greco, Jr. (Greco), appeals his sentence following
a conviction for intimidation, a Class D felony, Ind. Code §§ 35-45-2-1(a)(2);
-1(b)(1)(B); and resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-
1(a)(1), in cause number 45G03-1210-FD-246; and escape, a Class D felony, I.C. § 35-
44.1-3-4(B), in cause number 45G03-1306-FD-119.
We affirm.
ISSUE
Greco raises one issue for our review which we restate as: Whether the trial court
abused its discretion by denying him credit for time spent on pre-trial home detention.
FACTS AND PROCEDURAL HISTORY
On October 4, 2012, officers with the Schererville Police Department arrested
Greco on an active warrant out of Porter County. Once at the police station, Greco
threatened to kill an officer and his family in retaliation for the arrest.
On October 10, 2012, the State filed an Information in cause number 45G03-1210-
FD-246, charging Greco with intimidation, a Class D felony, and resisting law
enforcement, a Class A misdemeanor. On November 20, 2012, the trial court authorized
Greco’s release from custody on a court monitoring ankle bracelet. On December 12,
2012, Greco was released and fitted with the ankle bracelet. On June 13, 2013, Greco
removed the bracelet in violation of the trial court’s home detention order. That same
day, the State charged him with escape, a Class D felony, in cause number 45G03-1306-
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FD-119. On August 16, 2013, Greco pled guilty to all charges under both cause numbers
without the benefit of a plea agreement. On December 4, 2013, the trial court sentenced
Greco to three years imprisonment for intimidation with a concurrent term of one year
imprisonment for resisting law enforcement. Greco received two years of imprisonment
for escape, with the sentence to run consecutive to the other charges. The trial court
denied Greco credit for time spent on pre-trial home detention.
Greco now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Greco contends that the trial court abused its discretion by not awarding him credit
for the time he spent on pre-trial electronic monitoring. Because pre-sentence jail time
credit is a matter of statutory right, trial courts generally do not have discretion in
awarding or denying such credit. Molden v. State, 750 N.E.2d 448, 449 (Ind. Ct. App.
2001), reh’g denied. However, those sentencing decisions not mandated by statute are
within the discretion of the trial court and will be reversed only upon a showing of abuse
of that discretion. Id.Under Indiana Code § 35-50-6-4 “[a] person who is not a credit restricted felon
and who is imprisoned for a crime or confined awaiting trial or sentencing is initially
assigned to Class I” for the purposes of assigning credit. In Class I, a person “earns one
(1) day of credit time for each day the person is imprisoned for a crime or confined
awaiting trial or sentencing.” I.C. § 35-50-6-3. In Roberts v. State, 998 N.E.2d 743, 747
(Ind. Ct. App. 2013), we held that “because [t]here is no statute that addressed credit for
time served while on pre-trial home detention, [] we will review the trial court’s decision
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for an abuse of discretion.” Id. In so finding, we relied on Purcell v. State, 721 N.E.2d
220, 224 n.6 (Ind. 1999), wherein our supreme court explained that “a defendant is only
entitled to credit toward a sentence for pre-trial time served in a prison, jail, or other
facility which imposes substantially similar restrictions upon personal liberty.”
Although both parties are in agreement that the credit time for pre-trial home
detention is non-statutory and therefore the grant of the credit was within the trial court’s
discretion, the parties disagree on the trial court’s awareness of its discretion.
Specifically, Greco maintains that the trial court’s denial is based on the court’s
misperception in that it “believed that it had no such discretion, that the issue of credit
was subject only to the statutes.” (Appellant’s Br. p. 3).
During the sentencing hearing, the following colloqui took place:
[TRIAL COURT]: [] I didn’t do his credit days.
[STATE]: He had 50 on the escape charge case and then 29 on the
[i]ntimidation.
[TRIAL COURT]: Okay, 79? Seventy-nine days and 79 days, 158 days’
credit.
[GRECO’S COUNSEL]: And Your Honor, with the - - there was 184 days
that he was on ankle monitoring.
[TRIAL COURT]: He doesn’t get credit for the ankle monitor.
[GRECO’S COUNSEL]: Okay. Okay. He was under confinement, though,
Your Honor, during that time.
[TRIAL COURT]: I understand that. Talk to the legislature about that, []
[GRECO’S COUNSEL]: Okay. Alright.
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(Transcript p. 48). Greco now points to the trial court’s legislature remark to support its
contention that the trial court denied the request for credit based upon its assumption that
it had no authority or discretion whatsoever to award credit for that period of time. We
disagree.
The trial court’s remark merely reinforces that the trial court is aware of the
distinction in sentencing between a sentence mandated by statute and one which is not, as
in the instant case. Moreover, prior to this comment, the trial court had imposed Greco’s
sentence and reviewed his criminal history. During the trial court’s recitation of Greco’s
history, it stated “His history, I don’t know that I’ve ever seen any – any longer than this.
The – he absolutely had held the key to his fate for the last 30 years[.]” (Tr. p. 46). As
such, we conclude that the trial court was within its discretion to deny Greco credit for
time spent on electronic monitoring. Although the trial court did not include its denial of
pre-trial credit in the sentencing order, the court explicitly addressed it while pronouncing
judgment during the sentencing hearing thereby satisfying the requirement that a denial
be “report[ed] in the sentencing judgment.” Robinson v. State, 805 N.E.2d 783, 789 (Ind.
2004).
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
in denying Greco’s request for pre-trial credit time.
Affirmed.
MATHIAS, J. and CRONE, J. concur
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