MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 21 2015, 6:08 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah K. Smith Gregory F. Zoeller
Sugar Creek Law Attorney General of Indiana
Thorntown, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danney R. Lowery, July 21, 2015
Appellant-Defendant, Court of Appeals Cause No.
06A01-1410-CR-459
v. Appeal from the Boone Superior
Court
Cause No. 06D01-0911-FB-387
State of Indiana,
Appellee-Plaintiff. The Honorable Matthew C. Kincaid,
Judge
Barnes, Judge.
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Case Summary
[1] Danny Lowery appeals the calculation of credit time in connection with the
revocation of his placement in community corrections. We affirm.
Issue
[2] Lowery raises two issues, which we consolidate and restate as whether the trial
court properly calculated his credit time.
Facts
[3] In May 2010, Lowery pled guilty to Class B felony dealing in a controlled
substance. In separate cases, he also pled guilty to Class D felony receiving
stolen property and Class D felony auto theft. With respect to the Class B
felony conviction, on June 29, 2010, the trial court sentenced Lowery to ten
years with five years served on home detention in a community corrections
program and five years suspended to probation. The trial court ordered the
sentence to be served consecutive to his sentences in his other cases. The trial
court found that Lowery was entitled to credit of “78 actual days + 78 good
time credit days (156 total).” App. p. 33.
[4] Lowery began serving his sentence for the Class B felony conviction on July 2,
2012. On January 2, 2013, a notice of violation of the terms of community
correction was filed, Lowery was incarcerated, and he admitted to the violation.
On January 18, 2013, the trial court found that Lowery had violated the terms
of community corrections and returned him to community corrections to
“complete the remainder of his sentence under his prior terms.” Id. at 29. The
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trial court found that Lowery had served 184 days on community corrections
toward the sentence and was entitled to an additional credit for “17 actual days
plus 17 good time credit days served on this violation.” Id.
[5] On June 16, 2014, another notice of violation was filed, and Lowery was again
incarcerated. At the September 30, 2014 hearing, Lowery again admitted to
violating the terms of his placement. The trial court revoked his placement in
community corrections and ordered him to serve the remainder of his sentence
in the Department of Correction. The trial court found that Lowery was
entitled to an additional 513 days of credit for actual days served on home
detention and 106 days for time served in the Boone County Jail plus 106 days
of good time credit. The trial court determined that Lowery still had 726 days
to be served on his sentence. Lowery now appeals.
Analysis
[6] Lowery argues that the trial court erred when it calculated his credit time. He
claims that the trial court erred by not giving him good time credit for the time
he spent on home detention pursuant to amended Indiana Code Section 35-38-
2.6-6, which took effect on July 1, 2010, two days after he was sentenced.
Lowery contends that he was entitled to good time credit for his time served on
home detention under the doctrine of amelioration.
[7] “The doctrine of amelioration is an exception to the general rule that the
sentence in effect at the time a crime is committed is the proper penalty.”
Cottingham v. State, 971 N.E.2d 82, 85 (Ind. 2012). “The doctrine entitles
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defendants who are sentenced after the effective date of a statute providing for a
more lenient sentence to be sentenced pursuant to that statute, as opposed to
the statute in effect at the time the crime was committed.” Id.
[8] Prior to July 1, 2010, Indiana Code Section 35-38-2.6-6 provided that persons
on home detention were not entitled to good time credit. See id. at 84-85.
Effective July 1, 2010, the statute was amended and the statutory language
preventing persons on home detention from earning good time credit was
removed. Lowery was sentenced on June 29, 2010, two days prior to the
amendment.
[9] Our supreme court addressed this same issue in Cottingham and concluded that,
based on the statutory language, the amendment to Indiana Code Section 35-
38-2.6-6 should not be applied retroactively. The court held: “[T]he
amendment to Indiana Code section 35-38-2.6-6 applies to those who are
placed on home detention on or after its effective date. Cottingham was placed
on home detention before the statute’s effective date and so he is not eligible for
good time credit.” Id. at 86.
[10] Like the defendant in Cottingham, Lowery was sentenced to home detention
prior to the statute’s effective date. Although Lowery argues that Cottingham is
distinguishable, we disagree. Cottingham is clear and binding on us. See Horn v.
Hendrickson, 824 N.E.2d 690, 694-95 (Ind. Ct. App. 2005) (holding that
“Supreme court precedent is binding upon us until it is changed either by that
court or by legislative enactment.”). The doctrine of amelioration is
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inapplicable here, and Lowery is not entitled to good time credit for his time
served on home detention.
[11] Alternatively, Lowery argues that he is entitled to good time credit for the home
detention served after he was found, on January 18, 2013, to have violated the
terms of community corrections. Lowery bases his argument on the following
language from Cottingham:
Suppose, however, an offender committed an offense before the
statute’s effective date and was placed on home detention but not until
after the statute’s effective date. This offender is eligible for good time
credit under the rule announced in this case. Accord Arthur v. State, 950
N.E.2d 343, 346 (Ind. Ct. App. 2011) (concluding that offender placed
on home detention on July 30, 2010, after trial court modified
commitment from work release to home detention was entitled to earn
good time credit), trans. denied. In this respect, the “is placed” rule
announced in this case operates as an exception to the general rule that
the credit time statutes applicable in respect of an offense are those in
force on the date the offense was committed. Purcell [v. State], 721
N.E.2d [220,] 222 n. 2 [Ind. 1999].
[12] Cottingham, 971 N.E.2d at 86.
[13] Lowery argues that he was “placed” on home detention on January 18, 2013,
after the effective date of the statutory amendments. However, Lowery was
sentenced to home detention on June 29, 2010. On January 2, 2013, a notice of
violation was filed, Lowery was incarcerated, and he admitted to the violation.
On January 18, 2013, the trial court found that Lowery had violated the terms
of community corrections and returned him to community corrections to
“complete the remainder of his sentence under his prior terms.” App. p. 29.
Lowery’s return to home detention on January 18, 2013, was not a new
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placement or modified commitment. Rather, it was a continuation of his pre-
amendment commitment, and the exception mentioned in Cottingham is
inapplicable. Lowery was not entitled to good time credit for the home
detention served after January 18, 2013.
Conclusion
[14] The trial court properly calculated Lowery’s credit time. We affirm.
[15] Affirmed.
Riley, J., and Bailey, J., concur.
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Danney R. Lowery v. State of Indiana (mem. dec.)
Combined Opinion