James Fusco v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 12, 2012
• Docket: 54A01-1204-CR-182
• Status: Unpublished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 res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

ERIC P. BABBS Deputy Attorney General

FILED Indianapolis, Indiana

Dec 12 2012, 9:26 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court

JAMES FUSCO, ) ) Appellant-Defendant, ) ) vs. ) No. 54A01-1204-CR-182 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MONTGOMERY SUPERIOR COURT The Honorable David A. Ault, Judge Cause No. 54D01-0701-FD-5

December 12, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, James Fusco (Fusco), appeals his sentence following the

trial court’s revocation of his probation.

We reverse and remand.

ISSUE

Fusco raises one issue on appeal, which we restate as: Whether the trial court

erred by not crediting him for time served on home detention.

FACTS AND PROCEDURAL HISTORY

On January 4, 2007, the State filed an Information charging Fusco with Counts I-

III, nonsupport of a dependent child, Class D felonies, Ind. Code § 35-46-1-5(a). On

August 20, 2009, Fusco pled guilty to all Counts pursuant to a plea agreement. On

October 15, 2009,1 the trial court accepted the plea agreement and sentenced Fusco to

three years on each Count. The trial court ordered the sentences to run concurrently and

suspended to probation, except for six months that the trial court ordered Fusco to serve

on “electronically-monitored home detention with West Central Community

Corrections.” (Appellant’s App. p. 13). Fusco’s home detention began on “October 15,

2009, or as soon thereafter as monitoring equipment is installed in [Fusco]’s residence.”

(Appellant’s App. p. 15). Conditions of Fusco’s sentence included reporting and

providing his address and telephone number to his probation officer, abstaining from

1 We note that the transcript indicates that Fusco’s sentencing hearing was held on October 25, 2009. However, the CCS indicates that the hearing was held on October 15, 2009.

2 controlled substances and alcohol, paying child support, and obeying his home detention

rules.

On April 8, 2010, the probation department filed a petition to revoke Fusco’s

probation, alleging that Fusco had violated his probation by testing positive for

marijuana, failing to pay child support, and violating the home detention rules. That

same day, the trial court issued a bench warrant for Fusco’s arrest. On March 18, 2012,

Fusco was apprehended in Marion County, Indiana. On April 19, 2012, the trial court

held an evidentiary hearing. The State amended the revocation petition to allege that

Fusco had failed to apprise his probation officer of his address and telephone number

from April 8, 2010 to March 18, 2012. Fusco admitted to the violation of his probation

and the trial court revoked his probation. The trial court ordered Fusco’s suspended

sentence to be served at the Department of Correction and he received credit for thirty-

five days incarceration on his bench warrant.

Fusco now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Fusco argues that the trial court erred when it sentenced him following

his probation revocation without according him credit for the number of days he served

on home detention. The State agrees that the trial court erred by not giving Fusco credit

for time actually served. In support, both parties cite I.C. § 35-38-2.5-5, which addresses

credit for time served when home detention is imposed as a condition of probation.

Subsection (d) of the statute provides that “[a] person’s term of confinement on home

3 detention under this chapter is computed on the basis of the actual days the person spends

on home detention.” Subsection (e) provides that “[a] person confined on home detention

as a condition of probation earns credit for time served.” When read in combination,

these subsections afford a defendant a credit against his sentence for actual time served

under home detention as a condition of probation.

While the State agrees that the trial court erred by not giving Fusco credit for time

actually served, it asserts that the record does not establish how much time Fusco actually

served. The trial court’s October 15, 2009 Order For Home Detention provided that

Fusco’s home detention was to begin as soon as monitoring equipment was installed at

his home; however, the record before us does not indicate when Fusco’s detention

actually began. Although Fusco told the trial court that he was “released from house

arrest,” on either March 29 or April 29, 2010, his whereabouts were unknown from April

8, 2010 to March 18, 2012. (Transcript p. 46). The State requests and we agree that the

matter should be remanded for an evidentiary hearing to establish the length of Fusco’s

home detention. Consequently, we find that the trial court erred by not taking into

account Fusco’s actual time served under home detention and remand for an evidentiary

hearing.

Fusco also argues that he is entitled to “good time” credit against his sentence.

Fusco cites Peterink v. State, 971 N.E.2d 735, 737-38 (Ind. Ct. App. 2012), trans.

pending, to argue that he should also receive “good time” credit for time served on home

4 detention. The Peterink court held that the credit referred to in I.C. § 35-38-2.5-5(e)

encompasses “good time” credit as well as actual time under home detention. Id. at 38.

The State argues that under Cottingham v. State, 971 N.E.2d 82 (Ind. 2012), Fusco

is not entitled to “good time” credit because the version of I.C. § 35-38-2.6-6 in effect at

the time of Fusco’s offense specifically excluded individuals placed on home detention

with community corrections from receiving “good time” credit. See I.C. § 35-38-2.6-6

(West 2004). In 2010, I.C. § 35-38-2.6-6 was amended to afford “good time” credit to

those on home detention. See P.L. 105-2010, Sec. 14, effective July 1, 2010. In

Cottingham, the supreme court held that I.C. § 35-38-2.6-6 did not apply retroactively to

those offenders sentenced prior to the 2010 amendment. Id. at 86.

I.C. § 35-38-2.6-6 applies to those who serve home detention as a result of direct

placement in a community corrections program, rather than those who serve home

detention as a condition of probation. See Brown v. State, 957 N.E.2d 666, 671 (Ind. Ct.

App. 2011). Here, the trial court’s October 15, 2009 Order For Home Detention provides

that “having suspended all of [Fusco’s] sentence, the [c]ourt now orders that as a

condition of probation, [Fusco] shall be confined to his home for a period of six months

[…].” (Appellant’s App. p. 15). By referencing “condition of probation, the trial court

sentenced Fusco under I.C. § 35-38-2.5-5, rather than I.C. § 35-38-2.6-6. Consequently,

the State’s reliance on Cottingham is inapposite and we choose instead to follow

Peterink. Accordingly, on remand, the trial court is also instructed to calculate “good

time” credit Fusco may have accumulated during his home detention.

5 CONCLUSION

Based upon the foregoing, we conclude that the trial court erred in failing to credit

Fusco’s time on home detention against his sentence. We therefore reverse that portion

of the trial court’s order determining credit time and remand with instructions to calculate

the actual time and good time credit as a result of Fusco’s home detention and to credit

such time against his sentence.

Reversed and remanded with instructions.

BAKER, J. and BARNES, J. concur