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

• Court: Indiana Court of Appeals
• Decided: August 14, 2014
• Docket: 45A03-1401-CR-7
• Status: Unpublished

Opinion

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MEMORANDUM DECISION – NOT FOR PUBLICATION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-

2 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

3 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.

4 (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