MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 20 2017, 8:41 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristopher W. Bunting, November 20, 2017 Appellant-Defendant, Court of Appeals Case No. 84A05-1701-CR-97 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Appellee-Plaintiff. John T. Roach, Judge Trial Court Cause Nos. 84D01-1212-FD-3827 84D01-1407-FC-1791
Kirsch, Judge.
[1] Kristopher W. Bunting (“Bunting”) appeals the trial court’s order revoking his
probation and direct placement in community corrections and ordering him to
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 1 of 7 serve the balance of his original sentence. Bunting raises the following issue for
our review: whether the trial court erred in not allocating Bunting good time
credit for time served on work release in a community corrections program.
[2] We reverse and remand with instructions.
Facts and Procedural History [3] On July 9, 2013, Bunting pleaded guilty to Class D felony possession of
methamphetamine and Class A misdemeanor possession of paraphernalia in
cause number 84D01-1212-FD-3827 (“Cause 3827”). The trial court sentenced
Bunting in Cause 3827 to concurrent, but suspended, sentences of two years for
Class D felony possession of methamphetamine and one year for Class A
misdemeanor possession of paraphernalia. Bunting was placed on formal
probation for the remainder of his suspended sentence.
[4] On August 28, 2013, and again on January 21, 2014, the State filed a notice of
probation violation against Bunting. On July 11, 2014, a third notice of
probation violation was filed after Bunting was charged with new crimes in
cause number 84D01-1407-FC-1791 (“Cause 1791”) and for failing to take drug
screens on three occasions. On February 4, 2016, Bunting pleaded guilty to the
third probation violation and the charges in Cause 1791, which included four
counts of Class C felony forgery and one count each of Class D felony theft and
Class D felony fraud. The trial court ordered Bunting to serve the balance of
his previously-suspended sentence in Cause 3827, which was one year and 341
days, and in Cause 1791 ordered Bunting to serve an aggregate seven years for
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 2 of 7 the six counts to which he pleaded guilty, with the sentences in Cause 1791 to
be served concurrently and consecutive to the sentence in Cause 3827 for a total
sentence of eight years and 341 days to be fully executed as a direct
commitment to the Vigo County Work Release Program (“Work Release”).
[5] On February 10, 2016, Bunting began serving his eight-year and 341-day
executed sentence on Work Release. However, on August 18, 2016,
Community Corrections filed a petition to revoke Bunting’s direct placement on
Work Release. The petition stated that Bunting had violated the terms and
conditions of Work Release ten times. As a result of these violations, Bunting
received various sanctions, which involved either a change in the term of his
direct placement or a deprivation of his good time credit totaling 270 days.
Appellant’s App. at 103-04.
[6] A hearing was held on the petition on December 7, 2016, and at the conclusion,
the trial court found that Bunting had violated the terms and conditions of his
direct placement in Work Release. The trial court ordered Bunting to serve the
remainder of his sentence, approximately five years, in the Indiana Department
of Correction. In sentencing Bunting, the trial court gave him credit for 190
actual days served on Work Release and credit for 503 actual days previously-
served in the Vigo County Jail, plus good time credit of 503 days, for a total of
1,196 days credit. Bunting now appeals, challenging the trial court’s allocation
of good time credit related to the time period served on Work Release in a
community corrections program, and claiming that the trial court erred by not
allocating good time credit for the time period that he served on Work Release.
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 3 of 7 Discussion and Decision [7] Bunting does not challenge the revocation of his community corrections
placement, but instead, he contends that the trial court erred when it denied
him credit time for the period he had served in the Work Release program.
Specifically, he argues that neither the trial court nor the community corrections
program director had the authority to deprive him of the credit time he earned
while in direct placement on Work Release. Based on our Supreme Court’s
recent decision in Shepard v. State, No. 84S01-1704-CR-190, 2017 WL 4707482
(Ind. Oct. 20, 2017), we must agree.
[8] Bunting argues that, under Indiana law, only the Department of Correction
(“DOC”) has the authority to deprive defendants serving time as a direct
placement to community corrections of earned credit time,1 and, here, “the trial
court incorporated a community corrections program director’s disciplinary
decision to deprive Bunting of all his good time credit into a final judgment
revoking Bunting’s direct commitment.” Appellant’s Br. at 7. The State
responds that Community Corrections, and not the trial court, deprived him of
the good time credit he earned while on Work Release, as sanctions for his
violations of the program and that “a trial court is allowed to follow the
disciplinary decisions of a local community corrections program in its
1 See Pharr v. State, 2 N.E.3d 10, 12 (Ind. Ct. App. 2013) (trial court exceeded its authority when it deprived defendant of credit time earned while in community corrections because only the DOC has authority to deprive defendants of credit time).
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 4 of 7 sentencing order.” Appellee’s Br. at 15. We agree with the State that the trial
court did not make a sentencing decision to deprive Bunting of good credit time
and that, instead, the trial court recognized the fact that Community
Corrections previously had taken away good time credit based on violations of
the conditions of Work Release and then incorporated that prior loss of good
time credit into its sentencing decision. We, therefore, must answer the
question of whether the community corrections program director had the
authority to deprive Bunting of the good time credit.
[9] Indiana Code section 35-38-2.6-3 authorizes trial courts to “suspend a sentence
and order a person to be placed in a community corrections program as an
alternative to commitment to the department of correction.” Indiana Code
section 35-38-2.6-6(c) provides that a “person who is placed in a community
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 20 2017, 8:41 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristopher W. Bunting, November 20, 2017 Appellant-Defendant, Court of Appeals Case No. 84A05-1701-CR-97 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Appellee-Plaintiff. John T. Roach, Judge Trial Court Cause Nos. 84D01-1212-FD-3827 84D01-1407-FC-1791
Kirsch, Judge.
[1] Kristopher W. Bunting (“Bunting”) appeals the trial court’s order revoking his
probation and direct placement in community corrections and ordering him to
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 1 of 7 serve the balance of his original sentence. Bunting raises the following issue for
our review: whether the trial court erred in not allocating Bunting good time
credit for time served on work release in a community corrections program.
[2] We reverse and remand with instructions.
Facts and Procedural History [3] On July 9, 2013, Bunting pleaded guilty to Class D felony possession of
methamphetamine and Class A misdemeanor possession of paraphernalia in
cause number 84D01-1212-FD-3827 (“Cause 3827”). The trial court sentenced
Bunting in Cause 3827 to concurrent, but suspended, sentences of two years for
Class D felony possession of methamphetamine and one year for Class A
misdemeanor possession of paraphernalia. Bunting was placed on formal
probation for the remainder of his suspended sentence.
[4] On August 28, 2013, and again on January 21, 2014, the State filed a notice of
probation violation against Bunting. On July 11, 2014, a third notice of
probation violation was filed after Bunting was charged with new crimes in
cause number 84D01-1407-FC-1791 (“Cause 1791”) and for failing to take drug
screens on three occasions. On February 4, 2016, Bunting pleaded guilty to the
third probation violation and the charges in Cause 1791, which included four
counts of Class C felony forgery and one count each of Class D felony theft and
Class D felony fraud. The trial court ordered Bunting to serve the balance of
his previously-suspended sentence in Cause 3827, which was one year and 341
days, and in Cause 1791 ordered Bunting to serve an aggregate seven years for
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 2 of 7 the six counts to which he pleaded guilty, with the sentences in Cause 1791 to
be served concurrently and consecutive to the sentence in Cause 3827 for a total
sentence of eight years and 341 days to be fully executed as a direct
commitment to the Vigo County Work Release Program (“Work Release”).
[5] On February 10, 2016, Bunting began serving his eight-year and 341-day
executed sentence on Work Release. However, on August 18, 2016,
Community Corrections filed a petition to revoke Bunting’s direct placement on
Work Release. The petition stated that Bunting had violated the terms and
conditions of Work Release ten times. As a result of these violations, Bunting
received various sanctions, which involved either a change in the term of his
direct placement or a deprivation of his good time credit totaling 270 days.
Appellant’s App. at 103-04.
[6] A hearing was held on the petition on December 7, 2016, and at the conclusion,
the trial court found that Bunting had violated the terms and conditions of his
direct placement in Work Release. The trial court ordered Bunting to serve the
remainder of his sentence, approximately five years, in the Indiana Department
of Correction. In sentencing Bunting, the trial court gave him credit for 190
actual days served on Work Release and credit for 503 actual days previously-
served in the Vigo County Jail, plus good time credit of 503 days, for a total of
1,196 days credit. Bunting now appeals, challenging the trial court’s allocation
of good time credit related to the time period served on Work Release in a
community corrections program, and claiming that the trial court erred by not
allocating good time credit for the time period that he served on Work Release.
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 3 of 7 Discussion and Decision [7] Bunting does not challenge the revocation of his community corrections
placement, but instead, he contends that the trial court erred when it denied
him credit time for the period he had served in the Work Release program.
Specifically, he argues that neither the trial court nor the community corrections
program director had the authority to deprive him of the credit time he earned
while in direct placement on Work Release. Based on our Supreme Court’s
recent decision in Shepard v. State, No. 84S01-1704-CR-190, 2017 WL 4707482
(Ind. Oct. 20, 2017), we must agree.
[8] Bunting argues that, under Indiana law, only the Department of Correction
(“DOC”) has the authority to deprive defendants serving time as a direct
placement to community corrections of earned credit time,1 and, here, “the trial
court incorporated a community corrections program director’s disciplinary
decision to deprive Bunting of all his good time credit into a final judgment
revoking Bunting’s direct commitment.” Appellant’s Br. at 7. The State
responds that Community Corrections, and not the trial court, deprived him of
the good time credit he earned while on Work Release, as sanctions for his
violations of the program and that “a trial court is allowed to follow the
disciplinary decisions of a local community corrections program in its
1 See Pharr v. State, 2 N.E.3d 10, 12 (Ind. Ct. App. 2013) (trial court exceeded its authority when it deprived defendant of credit time earned while in community corrections because only the DOC has authority to deprive defendants of credit time).
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 4 of 7 sentencing order.” Appellee’s Br. at 15. We agree with the State that the trial
court did not make a sentencing decision to deprive Bunting of good credit time
and that, instead, the trial court recognized the fact that Community
Corrections previously had taken away good time credit based on violations of
the conditions of Work Release and then incorporated that prior loss of good
time credit into its sentencing decision. We, therefore, must answer the
question of whether the community corrections program director had the
authority to deprive Bunting of the good time credit.
[9] Indiana Code section 35-38-2.6-3 authorizes trial courts to “suspend a sentence
and order a person to be placed in a community corrections program as an
alternative to commitment to the department of correction.” Indiana Code
section 35-38-2.6-6(c) provides that a “person who is placed in a community
corrections program under this chapter is entitled to earn good credit time
under” Indiana Code sections 35-50-6-3 and 35-50-6-3.3. But a person who is
placed in a community corrections program “may be deprived of earned credit
time as provided under the rules adopted by the department of correction under
[Indiana Code chapter] 4-22-2.” Ind. Code § 35-38-2.6-6(d) (emphasis added).
However, the DOC has not promulgated any such rules.
[10] Bunting relies on Indiana Code section 35-38-2.6-6(d) for his contention that
only the DOC has the authority to deprive a defendant of good time credit.
Our Supreme Court recently agreed in its Shepard v. State decision and held that,
absent a DOC rule, a community corrections program may not deprive an
offender of earned credit time. Shepard, 2017 WL 4707482, at *3. In that case,
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 5 of 7 Shepard’s direct placement in a community corrections facility was revoked for
failure to abide by the program’s terms, and the trial court ordered him to serve
the remainder of his sentence in DOC. Id. at *1. The trial court determined
that Shepard was not entitled to any good time credit for his time served in the
program because the community corrections director had deprived Shepard of
more good time credit days than he was entitled to receive. Id. Shepard
appealed, arguing that the trial court erred in denying him good time credit for
days served in community corrections, and a panel of this court rejected
Bunting’s argument, holding that the community corrections program did not
lack the authority to revoke Shepard’s good time credit. Shepard v. State, 68
N.E.3d 1103, 1106 (Ind. Ct. App. 2017), trans. granted. This court observed that
“[r]equiring the trial court to ignore the program’s deprivation of Shepard’s
credit time for his violations of the rules would have effectively nullified the
program’s disciplinary actions.” Id.
[11] On transfer, our Supreme Court observed that, in Indiana Code section 35-38-
2.6-5, our legislature listed several actions a program director is authorized to
take in instances when offenders violate terms of their placement in the
program, which include: (1) changing the terms of the placement; (2)
continuing the placement; (3) reassigning the offender to a different program; or
(4) requesting that the trial court revoke the offender’s placement. Shepard,
2017 WL 4707482, at *3. The list does not include depriving an offender of
good time credit. The Shepard Court then looked to the plain language of
Indiana Code section 35-38-2.6-6(d) and concluded that the statute gave DOC
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 6 of 7 “discretion to promulgate rules related to the deprivation of earned credit time,
including the delegation of such authority to other entities.” Id. However, in
the absence of any DOC rule delegating such authority to a community
corrections program director, the Court held that “only the [DOC] is
empowered to deprive an offender directly placed into a community corrections
program of earned credit time.” Id. The Court thus held that the community
corrections director lacked authority to deprive Shepard of the good time credit
he earned while serving in the program. Id.
[12] We, therefore, likewise hold that the community corrections program director
in the present case lacked the authority to deprive Bunting of any good time
credit. Accordingly, we reverse the trial court’s good time credit determination
and remand with instructions to re-calculate Bunting’s earned credit time to
include the days he earned while serving on Work Release.
[13] Reversed and remanded with instructions.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A05-1701-CR-97 | November 20, 2017 Page 7 of 7