MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 16 2015, 7:30 am
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
Cara Schaefer Wieneke Gregory F. Zoeller
Plainfield, Indiana Attorney General of Indiana
Jonathan R. Sichtermann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harry F. Bolton, October 16, 2015
Appellant-Defendant, Court of Appeals Case No.
84A01-1503-CR-117
v. Appeal from the Vigo Superior
Court 3
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D03-1306-FD-1851
Bailey, Judge.
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Case Summary
[1] Harry F. Bolton (“Bolton”) appeals the trial court’s calculation of credit time
after his probation was revoked and the court ordered the remainder of his
sentence served in the Indiana Department of Correction (“DOC”). He
presents the sole issue of whether he was entitled to credit for time served and
good time credit 1 for days spent in a residential treatment facility as a condition
of probation. We affirm.
Facts and Procedural History
[2] On July 3, 2014, Bolton pleaded guilty to Possession of a Controlled Substance,
as a Class D felony (“Count 1”) and Possession of Paraphernalia, as a Class A
misdemeanor (“Count 2”). He was sentenced to two and one-half years on
Count 1, to be run concurrently with a one-year sentence on Count 2, yielding
an aggregate term of two and one-half years. The trial court ordered 242 days
executed, and Bolton was given credit time for 242 days (121 days credit for
time served and 121 days of good time credit). The remainder of his sentence
was suspended to probation. As a condition of his probation, Bolton was
ordered to reside at Club Soda, a residential treatment facility in Vigo County,
1
“Credit for time served” is “the credit toward the sentence a prisoner receives for time actually served” and
“good time credit” is “the additional credit a prisoner receives for good behavior and educational
attainment.” Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999), reh’g denied.
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“immediately upon a bed becoming available” and to successfully complete its
Sober Living Program. (Tr. 49.)
[3] It is unclear from the record on what date Bolton began living at Club Soda.
However, on August 25, 2014, the State filed a petition to revoke Bolton’s
probation, alleging that on August 21, 2014 he was unsuccessfully discharged
from Club Soda’s program after submitting to a drug screen that tested positive
for amphetamines. A second petition and notice to revoke probation was filed
on September 29, 2014, based on Bolton’s alleged failure to pay probation fees.
Then on December 10, 2014, Bolton was arrested on charges of Dealing in
Methamphetamine, Possession of Chemical Reagents or Precursors with Intent
to Manufacture a Controlled Substance, Maintaining a Common Nuisance,
and Driving While Suspended. On December 16, 2014, the State filed a third
notice of probation violation based on these charges.
[4] Following a probation revocation hearing held January 29, 2015, the trial court
found that the State had proven by a preponderance of the evidence that Bolton
violated the terms of his probation by driving while suspended. On March 5,
2015, a sanctions hearing was held, at the conclusion of which the trial court
ordered that the balance of Bolton’s two and one-half year sentence be served in
the DOC. In addition to the 242 days the court credited Bolton at his original
sentencing, the court credited him 170 more days (eighty-five days credit for
time served from his arrest on December 10, 2014 to March 4, 2015, plus
eighty-five days good time credit). Bolton neither requested nor received credit
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for his time spent at Club Soda. Bolton now appeals the trial court’s calculation
of credit time.
Discussion and Decision
[5] Bolton argues that in addition to the credit time the trial court awarded, he was
entitled to credit for time served and good time credit for the days he spent in
Club Soda as a condition of his probation. In support, Bolton points to Indiana
Code section 35-38-2.5-5, which provides credit time to offenders who are
confined on home detention as a condition of probation. Because his
participation in Club Soda was court-ordered and he was subject to arrest for
failure to comply with the order, Bolton contends that he was “confined on
home detention” when residing at Club Soda.
[6] As an initial matter, the State argues that Bolton waived his request for
additional credit time because Bolton never raised the issue at the sanctions
hearing following his probation revocation. Indeed, Bolton presented no
evidence or argument to the trial court with respect to his time at Club Soda,
even though the proper calculation of credit for time served (in jail) was the
primary focus of the hearing. Nevertheless, “[w]hen a statute mandates credit
time, the trial court does not have discretion in awarding or denying such
credit.” Barker v. State, 994 N.E.2d 306, 314 (Ind. Ct. App. 2013), trans. denied.
Because Bolton now argues he was statutorily-entitled to credit time, we
address Bolton’s argument on the merits.
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[7] Generally a person does not earn credit time while on parole or probation. Ind.
Code § 35-50-6-6(a). 2 As a limited exception to the rule, our statutes provide
that a “person confined on home detention as a condition of probation accrues
one (1) day of credit for each day the person is confined on home detention.”
I.C. § 35-38-2.5-5(e). A person confined on home detention as a condition of
probation may also earn good time credit. I.C. § 35-38-2.5-5(f); Peterink v. State,
982 N.E.2d 1009, 1010 (Ind. 2013). Further, a person confined on home
detention may be deprived of earned credit time if the person violates a
condition of probation. I.C. § 35-38-2.5-5(g). 3 The term “home” for the
purposes of “home detention” as a condition of probation includes a residential
treatment facility. I.C. § 35-38-2.5-2.
[8] A convicted person confined on home detention must remain at his or her
residence, except to engage in certain approved activities: to work or seek work;
to obtain medical, psychiatric, or counseling services; to attend an educational
institution or program or a religious service; or to participate in work release or
restitution. I.C. § 35-38-2.5-6(1); Barker, 994 N.E.2d at 313. An order for home
detention must contain that condition, as well as requirements that the offender:
(a) abide by a schedule prepared by the probation department setting forth the
2
At all times, we refer to the versions of the statutes in effect at the time of Bolton’s conviction and
sentencing on July 3, 2014.
3
Effective July 2, 2015, subsection (g) was revised to add the word “good” and now reads: “A person
confined on home detention may be deprived of earned good time credit if the person violates a condition of
probation.” I.C. § 35-38-2.5-5(g) (Supp. 2015).
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times an offender may be absent from home and the locations he or she may go
during scheduled absences; (b) may not commit another crime during the home
detention period; (c) obtain approval before changing his or her residence or
schedule; (d) maintain a working home phone and, if court-ordered, a
monitoring device; (e) pay certain home detention fees in addition to probation
fees; (f) abide by other probation conditions; and (g) provide a DNA sample
under certain conditions. See I.C. §§ 35-38-2.5-6(3)-(9). A person who violates
a home detention order is subject to prosecution for the crime of escape. I.C. §
35-38-2.5-6(2).
[9] Although Bolton is correct that “home” for the purposes of “home detention”
includes a residential treatment facility such as Club Soda, nothing in the record
indicates that Bolton was “confined on home detention” as described in Section
35-38-2.5-6. Critically, the trial court did not enter an order of home detention
setting forth the specific conditions required by statute. See Oswalt v. State, 749
N.E.2d 612, 615 n.6 (Ind. Ct. App. 2001) (observing that where the trial court
ordered Oswalt to complete a substance abuse program as a condition of his
probation, Oswalt was not on home detention because “orders for home
detention must set forth specific conditions in compliance with Ind. Code § 35-
38-2.5-6, and no such order was entered in this case”). 4 Here, the court’s
4
In his reply brief, Bolton attempts to distinguish Oswalt because at the time Oswalt was decided, Indiana
Code section 35-38-2.5-5 did not explicitly provide credit time for an offender confined on home detention as
a condition of probation. Although Oswalt could not have demonstrated a statutory entitlement to credit
time, the case is still instructive on the issue of whether a person placed in treatment for substance abuse
issues as a condition of probation was “confined on home detention” within the meaning of the statute.
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conviction and sentencing order makes no mention of home detention. For
example, on Bolton’s probation referral form – a checklist summarizing the
offender’s probation terms – the space next to “Days Home Detention” was not
checked or filled in; however, the line next to “Counseling at Defendant’s
Expense” was checked and “Club Soda” was written above. (App. 53.)
Moreover, there is no indication that Bolton’s activities were restricted to
certain approved locations and times, as would be consistent with a home
detention order. And Bolton presents no argument on appeal as to what, if any,
restrictions Club Soda’s Sober Living Program entailed.
[10] Bolton urges that if there is insufficient evidence in the record to determine
whether Bolton was “confined on home detention,” the proper remedy is to
remand the case for an evidentiary hearing. In support, he cites Brown v. State,
957 N.E.2d 666, 670-71 (Ind. Ct. App. 2011), in which Brown sought credit for
time served in a residential treatment facility under a pre-conviction diversion
program, 5 as opposed to a probation order. After Brown failed to complete the
program, the trial court entered judgment of conviction and sentenced her to
three years incarceration, but did not award her credit for time she spent in
5
A pre-conviction diversion program is a program designed to provide an adult who has a mental illness
and/or addictive disorder and who has been charged with a non-violent offense an opportunity to receive
community treatment and other services addressing mental health and addiction instead of or in addition to
incarceration. I.C. § 11-12-3.7-4. Under the statutory scheme, an eligible individual pleads guilty to the
charged offense(s), the court stays entry of judgment of conviction while the individual participates in the pre-
conviction program, and all charges are dismissed if the person successfully completes the program. I.C. §
11-12-3.7-11(b). However, if a person fails to complete the program, the court will lift its stay, enter
judgment of conviction, and sentence the individual. Id.
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residential treatment. Id. at 669. On appeal, this Court held there was evidence
that Brown’s pre-conviction diversion program “imposed significant limitations
on [her] personal liberty,” but that there was insufficient evidence to determine
whether the restrictions were “substantially similar to those imposed upon
personal liberty in a prison or jail.” Id. at 672. Accordingly, we remanded for
an evidentiary hearing to determine the extent of the program’s restrictions. Id.
[11] Unlike in Brown, Bolton seeks credit time for time spent on probation, not as
part of a pre-conviction diversion program. Under the statute applicable to this
case, Bolton was only entitled to credit time during his probation if he was
confined on home detention. Yet there is no evidence in the record that Bolton
participated in Club Soda pursuant to a home detention order setting forth the
statutory restrictions. Although Bolton was clearly on probation, he was not
“confined on home detention” at Club Soda. We accordingly decline his
request to remand the case for a factual hearing on the extent of the restrictions,
if any, imposed by Club Soda.
[12] Finally, Bolton argues that if courts may order treatment at a residential facility
without a formal order of home detention, “courts could circumvent the law
and require defendants to serve more than the maximum sentence allowed by
statute . . . .” (Appellant’s Reply Br. 4.) However, the general rule is that
persons on probation do not earn credit time. Bolton fails to acknowledge that
in the absence of a formal detention order or other evidence that his movements
were similarly monitored or restricted, there is no evidence that he was
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“confined on home detention” such that he would qualify for the legislature’s
narrow exception to the general rule.
Conclusion
[13] Although Bolton was on probation, he was not confined to home detention.
Accordingly, the trial court did not err in failing to award Bolton credit time for
days spent in a residential treatment facility as a condition of probation.
[14] Affirmed.
Baker, J., and Mathias, J., concur.
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