Troy Thurman 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 Jul 18 2013, 9:48 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM A. GRAY GREGORY F. ZOELLER
Jeffersonville, Indiana Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TROY THURMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 22A04-1208-CR-438
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Susan L. Orth, Judge
Cause No. 22D01-0504-FA-266
July 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Troy Thurman appeals the trial court’s refusal to award credit for time served1 and
good time credit2 for the time he spent in an inpatient forensic diversion program as a
condition of probation. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On January 19, 2006, Thurman received an eight-year sentence, with seven years
suspended to probation. On May 21, 2010, the State petitioned to revoke Thurman’s
probation. After hearing evidence, the court found Thurman violated probation and
continued him on probation with an order that he complete a forensic diversion program.
Thurman completed the ninety-day in-patient portion of the program but not the out-patient
portion. On June 18, 2012, the State filed another petition to revoke Thurman’s probation.
The trial court revoked Thurman’s probation and ordered him to serve the remainder of his
sentence incarcerated. Thurman requested the trial court grant him 90 days of credit for time
spent in the residential portion of the forensic diversion program and 90 days of good time
credit for those same days, but the court denied both.
DISCUSSION AND DECISION
Thurman asserts the court erred in its calculation of the amount of credit time due to
him. Whether credit time against a sentence is available following revocation of probation is
controlled by a patchwork of overlapping statutes found in various titles of Indiana Code.
1
“Credit for time served” is “the credit toward the sentence a prisoner receives for time actually served.”
Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999), reh’g denied.
2
“Good time credit” is “the additional credit a prisoner receives for good behavior and educational
attainment.” Purcell, 721 N.E.2d at 222.
2
When faced with a question of statutory interpretation, our review is de novo. In re M.W.,
913 N.E.2d 784, 786 (Ind. Ct. App. 2009). Our goal is to determine and give effect to the
legislature’s intent. Maroney v. State, 849 N.E.2d 745, 748 (Ind. Ct. App. 2006). To do so,
we must read statutes in harmony with related statutes. St. Margaret Mercy Healthcare Ctrs.,
Inc. v. Poland, 828 N.E.2d 396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the
legislature intended statutory language to be applied in a logical manner consistent with the
statute’s underlying policy and goals, B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct. App.
2003), and thus we may not read a statute so narrowly as to exclude instances fairly covered
or in a manner that disregards legislative intent. Id. Neither may criminal statutes “be
enlarged by construction, implication, or intendment beyond the fair meaning of the language
used.” Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000), trans. denied.
A trial court may order completion of a forensic diversion program as a condition of
probation or when staying the executed portion of a sentence. Ind. Code § 11-12-3.7-12. If a
defendant does not complete a forensic diversion program ordered by a court, then the court
may:
(1) Revoke the person’s probation.
(2) Order all or a portion of the person’s suspended sentence to be executed.
(3) Modify the person’s sentence.
(4) Order the person to serve all or a portion of the person’s suspended
sentence in:
(A) a work release program established by the department under IC 11-10-
8 or IC 11-10-10; or
(B) a county work release program under IC 11-12-5.
Id. Neither that statute, nor any other in that chapter, explicitly states whether credit for time
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served is to be awarded for time spent in a forensic diversion program. See generally Ind.
Code ch. 11-12-3.7; see also Brown v. State, 957 N.E.2d 666, 671 (Ind. Ct. App. 2011)
(noting that chapter “does not specifically refer to the application of credit for time served or
credit time”).
We therefore turn to the statutes that address whether credit time is to be awarded
during probation. Ind. Code chapter 35-50-6 contains statutes dealing with “Release From
Imprisonment and Credit Time,” and Section 6(a) thereof states: “A person imprisoned for a
crime earns credit time irrespective of the degree of security to which he is assigned. Except
as set forth under IC 35-38-2.5-5, a person does not earn credit time while on parole or
probation.” Ind. Code § 35-50-6-6(a). The statutory exception mentioned in Section 6(a)
provides: “A person confined on home detention as a condition of probation earns credit for
time served.” Ind. Code § 35-38-2.5-5(e). Our Indiana Supreme Court recently held those
two statutes permitted probationers on home detention to earn both credit for time served and
good time credit. Peterink v. State, 982 N.E.2d 1009, 1010 (Ind. 2013) (trial court acted
“[c]ontrary to statutory authority” when it ordered probationer “would not receive good time
credit for her term of home detention”). Thus, Thurman is entitled to both credit for time
served and good time credit for probation days spent “confined on home detention,” Ind.
Code § 35-38-2.5-5.
Thurman was not assigned to home detention, but to “90 days actual residential
treatment.”3 (App. at 75.) “Home,” for the purposes of Indiana Code chapter 35-38-2.5
3
The trial court “utilized pre-printed forms with boxes to be checked and blanks to be filled,” Smith v. State,
4
“includes a hospital, health care facility, hospice, group home, maternity home, residential
treatment facility, and boarding house.” Ind. Code § 35-38-2.5-2 (emphasis added). Thus,
Thurman was “home” during the ninety days he spent in residential treatment.
The remaining question, then, is whether Thurman was “confined” in that facility. Cf.
Brown, 957 N.E.2d at 674 (ordering trial court to hear evidence to determine whether pre-
conviction diversion program at YWCA was sufficiently restrictive of Brown’s personal
liberties to entitle her to credit for time spent there). Thurman asserts the “restrictions on his
freedom [were] nearly identical to prison.” (Appellant’s Br. at 4.) The Court Order that
placed Thurman in the treatment program provided:
Defendant must successfully complete Forensic Diversion Program – 90 day
actual residential treatment followed by 9 months aftercare as recommended
(to include work release and/or halfway house). Clark County Community
Corrections Staff have authority to grant up to an 8 hour funeral furlough.
Further, they have the authority to remove the Defendant from the residential
component of the Forensic Diversion Program immediately for cause &
remand him to the custody of the Clark County Sheriff temporarily for up to 3
days, or if necessary, permanently, pending his re-appearance in his Court of
jurisdiction.
(App. at 83.)
Thurman’s probation officer testified as follows regarding that program:
Q Now, on the Centerstone Forensic Diversion Program, as best as you
621 N.E.2d 325, 325 n.1 (Ind. 1993), but did not check the box for “Home Incarceration [I.C. 35-38-2.5].”
(App. at 74) (brackets in original). However, that form listed “Home Incarceration” as a subset of
“Community Corrections,” (id.), and the court was ordering probation, not direct placement in community
corrections. Thus, we decline to hold the trial court’s failure to check that box is determinative of whether
Thurman was placed on home detention. See, e.g., Smith, 610 N.E.2d 265, 271 (Ind. Ct. App. 1993)
(probation order indicating six months of home detention, without setting forth the specific conditions of home
detention as required by Ind. Code § 35-38-2.5-6, was order for home detention, but required remand for court
to enter modified order meeting statutory requirements), summarily aff’d Smith, 621 N.E.2d at 326.
5
recall, did [Thurman] complete the, uh, lock down portion of that program, the
ninety day program?
A He did.
Q And that’s in-patient, they’re not free to leave during that ninety days, is
that correct?
A That’s correct.
Q Now, he did subsequently violate, uh, after the ninety day in-patient?
A That’s correct.
(Tr. at 11.)
That evidence demonstrates Thurman was not free to leave the ninety-day residential
portion of the program without receiving permission from the community corrections
department and, even then, he was entitled to leave only for eight hours for a funeral. In
addition, Community Corrections staff had authority to remove him from the residential
treatment program and place him in jail until he could appear before the court. Those
provisions made Thurman’s diversion program sufficiently restrictive of his personal liberties
to be similar to home detention, and Thurman is entitled to receive credit for the time he
spent there. Cf. Oswalt v. State, 749 N.E.2d 612, 615 (Ind. Ct. App. 2001) (denying credit
for probationer’s time in treatment because “there is no evidence that the court monitored or
restricted Oswalt’s movements”).
“A person’s term of confinement on home detention . . . is computed on the basis of
the actual days the person spends on home detention.” Ind. Code § 35-38-2.5-5(d). As the
record indicates Thurman spent ninety days in residential treatment, that is the number of
days the court should use when calculating the credit due to Thurman.
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CONCLUSION
Because of the restrictive nature of the program and the court’s order placing
Thurman in that program, Thurman was entitled to earn credit for time served and good time
credit for days he spent in the locked-down portion of the residential treatment program.
Accordingly, we reverse and remand with instructions to modify the time remaining on
Thurman’s sentence.4
Reversed and remanded.
ROBB, C.J., and PYLE, J., concur.
4
As we must reverse and remand for the court to recalculate the amount of credit for time spent and good time
credit earned by Thurman, we note the court also ruled: “I am gonna give you credit for time served of one of
the ninety days [in-home detention], but not the others, in that they were not successfully completed.” (Tr. at
22-23.) That decision appears to violate Ind. Code § 35-38-2.5-5(d), as Thurman should, at the least, receive
credit for time served for “the actual days,” id., that he spent on home detention. Accordingly, on remand, the
trial court should also reconsider how many days credit Thurman should receive for any other days he actually
served on home detention.
7