dissenting.
I respectfully dissent. On April 28, 1994, the trial court sentenced Davis to 3 years executed for Operating a Vehicle and 1 year executed for Possession of Marijuana with the sentences to be consecutive to one another pursuant to a plea agreement. An Abstract of Judgment was prepared sentencing Davis to the Indiana Department of Correction. (R. 99). The court then went on to say that it had "no objection to Mr. Davis being allowed to serve the executed portion of this sentence in either work release or home detention subject to availability and eligibility of those programs." (R. 54-55). The Judgment of Sentence of the Court, pursuant to the plea agreement, was an executed sentence subject to the Allen County Community Corrections' acceptance of Davis for placement in work release or home detention as an alternative to the Indiana Department of Correction. On the same date, the court accepted the recommendation for placement as a conditional release and ordered "(the receiving authority" to return the "defendant to custody upon a violation of the conditional release." (R. 96).
I agree with the trial court judge who stated in his order of August 17, 1995, denying the defendant's Motion for Hearing on Revocation of Placement:
Home detention officers were free to return him to custody without judicial permission. The Defendant had bargained for an executed sentence. He was not free to dictate the manner of supervision.
This case can be distinguished from Million v. State, 646 N.E.2d 998 (Ind.Ct.App.1995) where the court relinquished its judicial authority. The defendant was sentenced to the custody of the receiving authority. In our case, Davis was sentenced to an executed term according to his own plea agreement. Davis was not sentenced to a community corrections program and thus the court made no "placement" pursuant to LC. 35-88-2.6-3. *1009The court has merely accepted the recommendation of the Allen County Community Corrections Office to allow Davis to serve his executed sentence in detention at home. Had the Community Corrections Officer failed to accept Davis into their home detention program, Davis would have served his executed sentence at the Indiana Department of Correction. The judge, contrary to the case of Million, has not exercised discretion but indeed has followed the plea agreement. There is no prejudice to Davis since he has failed to follow the terms of his agreement.
I would affirm the decision of the trial court.