James Boggess v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 9, 2016
• Docket: 49A02-1506-CR-681
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Feb 09 2016, 8:27 am 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 Karen Celestino-Horseman Gregory F. Zoeller Indianapolis, Indiana Attorney General

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Boggess, February 9, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-681 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges Appellee-Plaintiff Trial Court Cause No. 49G04-1308-FB-57570

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 1 of 6 Case Summary [1] James Boggess appeals the trial court’s failure to award him credit for time

served as well as good time credit for the ten months he served in pretrial home

detention. Based on the facts and circumstances of this case, the trial court did

not abuse its discretion in failing to award Boggess these credits.

Facts and Procedural History [2] Boggess and William Bowser have known each other for fifty years and live a

block and a half away from each other on the east side of Indianapolis. On

August 1, 2013, the two men were drinking alcohol together when they began

to argue about an incident that occurred between them almost twenty-five years

ago. The two men became involved in a fist fight, and Bowser knocked down

Boggess, who went home and contacted the police. After the police left,

Boggess telephoned his son, Justin, and told the young man to come to

Boggess’ house. Justin and a friend arrived at Boggess’ house armed with two

baseball bats and a hammer, and the three men drove to Bowser’s house.

Bowser was in his bedroom when he heard screaming and the windows of his

home being broken. He jumped out a window and ran towards a neighbor’s

house. Boggess, Justin, and Justin’s friend ran after Bowser, caught him on the

neighbor’s porch, and struck Boggess approximately thirty times before running

off. Bowers sustained several facial fractures and the vision in his eye was

permanently impaired.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 2 of 6 [3] On September 4, 2013, the State charged Boggess with aggravated battery as a

class B felony. He was released on bond to electronic monitoring home

detention on September 11, 2013. Boggess remained on home detention until

his trial at the end of June 2014. According to Boggess, “[p]retrial home

detention allowed [him] to continue working so he was able to pay the cost of

his confinement and was also able to retain private counsel so no public

defender was appointed to represent him until he was taken into custody and

imprisoned.” Appellant’s Br. p. 5-6.1 A jury convicted Boggess of the charged

offense, and Boggess was taken into custody. The trial court sentenced him to

twelve years, ten years executed and two years in community corrections. The

trial court also suspended two years of the sentence to probation. The trial

court awarded Boggess thirty-five days of credit time, which covered the

periods from September 5 to September 11, 2013, when Boggess was released

on bond, and June 24 to July 2, 2014, when Boggess was sentenced. The trial

court did not award Boggess any credit time for his time spent on pretrial home

detention. Boggess appeals the trial court’s failure to award him both credit for

pretrial time served and good time credit.

1 Boggess cites “App. 132” as support for these facts; however, this page of his appendix contains no such facts.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 3 of 6 Discussion and Decision [4] At the outset, we note that there is a difference between credit for time served

and good time credit. Specifically, credit for time served is the credit toward the

sentence a prisoner receives for the time actually served. Purcell v. State, 721

N.E.2d 220, 222 (Ind. 1999). Good time credit is the additional credit a

prisoner receives for good behavior and educational attainment. Id. Boggess

believes that the trial court should have awarded him both types of credit.

[5] Under Indiana Code section 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.” Ind. Code § 35-50-6-3.

[6] Because pre-sentence jail-time credit is a matter of statutory right, trial courts

generally do not have discretion in awarding or denying credit. Molden v. State,

750 N.E.2d 448, 449 (Ind. Ct. App. 2001). 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. An abuse

of discretion occurs when the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before it. Hoglund v. State, 962 N.E.2d

1230, 1237 (Ind. 2012). Because there is no statute that addresses credit for

time served while on pretrial home detention, we will review the trial court’s

decision for an abuse of discretion. Molden, 750 N.E.2d at 449.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 4 of 6 [7] In Purcell, 721 N.E.2d at 220, 224 n.6, the Indiana Supreme Court, while

acknowledging that the issue was not directly before it, concluded that a trial

court was within its discretion to deny a defendant credit toward his sentence

for pretrial time served on home detention. The Court explained that absent

legislative direction, a defendant is only entitled to credit toward a sentence for

pretrial time served in a prison, jail, or other facility that imposes substantially

similar restrictions upon personal liberty. Id.; see also Molden, 750 N.E.2d at 451

(concluding that time spent in pretrial home detention is not equivalent to

pretrial time served in a prison or jail and that pretrial home detainees are not

entitled as a matter of law to receive credit for time served on home detention

toward any eventual sentence).

[8] Here, Boggess has not provided any evidence that the terms of his home

detention imposed restrictions upon his personal liberty substantially similar to

a prison. Rather, according to Boggess, the terms of his home detention

allowed him to continue working. Appellant’s Br. p. 5. Because the terms of

Boggess’ home detention did not impose substantial restrictions upon his

personal liberty, the trial court did not abuse its discretion in failing to award

him credit for time served on home detention.2, 3

2 To the extent Boggess argues that the trial court abused its discretion in failing to award him good time credit, we note that it is not possible for the trial court to award good time credit where there is no credit awarded for time actually served. This is because there is no initial credit on which to base the additional credit. We find no abuse of the trial court’s discretion. 3 Boggess also asks us to “encourage the Indiana Supreme Court to reconsider its decision in State of Indiana v. Purcell, 721 N.E.2d 220, 224, n.6 (1993).” We are bound by the decisions of the Indiana Supreme Court

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 5 of 6 [9] Affirmed.

Bailey, J., and Crone, J., concur.

until the law is either changed by that Court or by legislative enactment. Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. granted, then grant of trans. vacated.

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