MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 9:15 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark Buggs, February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2215 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge The Honorable Richard E. Hagenmaier, Commissioner Trial Court Cause No. 49G21-1307-FA-42721
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 1 of 7 Statement of the Case [1] Mark Buggs appeals the trial court’s sentencing order following the revocation
of his placement in a community corrections facility. Buggs raises one issue for
our review, namely, whether the trial court erred when it denied him good time
credit for sixty days he served in the work release program. Buggs contends
that community corrections lacked the authority to deprive him of good time
credit. The State does not dispute Buggs’ contention on appeal. We agree and
reverse and remand with instructions.
Facts and Procedural History [2] On March 3, 2014, Buggs pleaded guilty to dealing in cocaine, as a Class B
felony, and two counts of neglect of a dependent, as Class C felonies. On April
14, the trial court accepted his guilty plea and sentenced him to an aggregate
term of six years, with three years to be served in the Department of Correction
and three years to be served in the Marion County Community Corrections
Program.
[3] On April 14, 2015, the trial court approved Buggs’ placement in a community
transition program. Buggs began his placement in the Marion County
Community Corrections Work Release Program on October 20. On October
27, Buggs was deprived of sixty days of good time credit. 1 On December 15,
1 There is no information in the record to indicate the reason Community Corrections deprived Buggs of sixty days of good time credit.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 2 of 7 the State filed a notice of community corrections violation, which alleged that
Buggs had violated two conditions of his placement because he failed to return
to the residential center after he had been released on an approved pass. The
trial court then issued an order for his arrest, and he was arrested on December
25, 2016. On August 3, 2017, the trial court held a hearing at which Buggs
admitted to both of the violations. The parties then discussed the credit time
that Buggs had been denied, and the following conversation occurred:
THE COURT: So it’s 90, 90 days, so it’s 60 days on the sheet but I think it’s 90 days.
[Community Corrections Team Officer]: He had 30 days deprived while he was in DOC[,] that was on September 16, 2015.
THE COURT: Okay, all right and add 60 at work release.
[Community Corrections Team Officer]: 60 yeah work release.
THE COURT: All right.
Tr. Vol. II at 5. The State did not object or otherwise dispute those statements
made by the Community Corrections Team Officer.
[4] Buggs then asserted that the community corrections program did not have the
authority to take away credit time. In response, the State stated: “I’ve heard of
community corrections being able to take away good time credit[.]” Id. at 6.
On September 7, the trial court held a sentencing hearing. At the start of that
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 3 of 7 hearing, Buggs stated that there were two questions of credit time at issue. The
first was thirty days he was denied while he was at the Department of
Correction.2 The second “is 60 days taken from work release under Marion
County Community Corrections[.]” Id. at 10. The State responded and stated
that Buggs “was given a hearing and opportunity and he admitted to the
violation so his credit time was deprived at work release.” Id. at 11. The trial
court held that community corrections could deny credit time. The trial court
revoked Buggs’ placement in community corrections and gave him credit time
for 881 actual days served plus 791 credit days. In its sentencing order, the trial
court noted that Buggs lost thirty days of credit time while he was in the
Department of Correction and sixty days while he was in the work release
program. This appeal ensued.
Discussion and Decision [5] Buggs contends that the trial court erred when it honored the community
corrections’ deprivation of credit time and withheld sixty days of good time
credit because community corrections did not have the authority to deprive him
of credit time.
[6] We first note that the State contends Buggs has waived this issue on appeal
because he failed to provide an adequate record. Specifically, the State asserts
that “the only documentation [Buggs] has included with respect to the credit
2 Buggs does not appeal the deprivation of those thirty days.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 4 of 7 time calculation on appeal is two one-page documents, one page of which has
no information with respect to who authored it and the second of which was
allegedly authored by someone in community corrections.” Appellee’s Br. at
11-12. Further, the State asserts that “[i]t is unclear whether the deprivations
occurred due to sanctions [Buggs] received while in the D.O.C. or while in
community corrections.” Id. at 12.
[7] But Buggs provided the transcripts from the August 3 and September 7
hearings, which provide information on the issue of credit time. And it is clear
from those transcripts that the State did not dispute the fact that community
corrections deprived Buggs of sixty days of credit time. During the August 3,
2017, hearing, the Community Corrections Team Officer stated that Buggs was
deprived of thirty days while he was in the Department of Correction and sixty
days while he was on work release. And the State responded and stated: “I’ve
heard of community corrections being able to take away good time credit[.]”
Tr. Vol. II at 6. Further, during the September 7 sentencing hearing, Buggs
stated that one of the issues regarding credit time “is 60 days taken from work
release under Marion County Community Corrections[.]” Id. at 10. The State
replied that Buggs “was given a hearing and opportunity and he admitted to the
violation so his credit time was deprived at work release.” Id. at 11. The record
is clear both that Buggs preserved the issue, and the State did not dispute, that
community corrections had deprived Buggs of sixty days of credit time. As
such, Buggs provided an adequate record and we will reach the merits of Buggs’
appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 5 of 7 [8] On the merits, Buggs contends that the trial court erred when it miscalculated
his earned credit time because it honored the deprivation of credit time by
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 9:15 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark Buggs, February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2215 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge The Honorable Richard E. Hagenmaier, Commissioner Trial Court Cause No. 49G21-1307-FA-42721
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 1 of 7 Statement of the Case [1] Mark Buggs appeals the trial court’s sentencing order following the revocation
of his placement in a community corrections facility. Buggs raises one issue for
our review, namely, whether the trial court erred when it denied him good time
credit for sixty days he served in the work release program. Buggs contends
that community corrections lacked the authority to deprive him of good time
credit. The State does not dispute Buggs’ contention on appeal. We agree and
reverse and remand with instructions.
Facts and Procedural History [2] On March 3, 2014, Buggs pleaded guilty to dealing in cocaine, as a Class B
felony, and two counts of neglect of a dependent, as Class C felonies. On April
14, the trial court accepted his guilty plea and sentenced him to an aggregate
term of six years, with three years to be served in the Department of Correction
and three years to be served in the Marion County Community Corrections
Program.
[3] On April 14, 2015, the trial court approved Buggs’ placement in a community
transition program. Buggs began his placement in the Marion County
Community Corrections Work Release Program on October 20. On October
27, Buggs was deprived of sixty days of good time credit. 1 On December 15,
1 There is no information in the record to indicate the reason Community Corrections deprived Buggs of sixty days of good time credit.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 2 of 7 the State filed a notice of community corrections violation, which alleged that
Buggs had violated two conditions of his placement because he failed to return
to the residential center after he had been released on an approved pass. The
trial court then issued an order for his arrest, and he was arrested on December
25, 2016. On August 3, 2017, the trial court held a hearing at which Buggs
admitted to both of the violations. The parties then discussed the credit time
that Buggs had been denied, and the following conversation occurred:
THE COURT: So it’s 90, 90 days, so it’s 60 days on the sheet but I think it’s 90 days.
[Community Corrections Team Officer]: He had 30 days deprived while he was in DOC[,] that was on September 16, 2015.
THE COURT: Okay, all right and add 60 at work release.
[Community Corrections Team Officer]: 60 yeah work release.
THE COURT: All right.
Tr. Vol. II at 5. The State did not object or otherwise dispute those statements
made by the Community Corrections Team Officer.
[4] Buggs then asserted that the community corrections program did not have the
authority to take away credit time. In response, the State stated: “I’ve heard of
community corrections being able to take away good time credit[.]” Id. at 6.
On September 7, the trial court held a sentencing hearing. At the start of that
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 3 of 7 hearing, Buggs stated that there were two questions of credit time at issue. The
first was thirty days he was denied while he was at the Department of
Correction.2 The second “is 60 days taken from work release under Marion
County Community Corrections[.]” Id. at 10. The State responded and stated
that Buggs “was given a hearing and opportunity and he admitted to the
violation so his credit time was deprived at work release.” Id. at 11. The trial
court held that community corrections could deny credit time. The trial court
revoked Buggs’ placement in community corrections and gave him credit time
for 881 actual days served plus 791 credit days. In its sentencing order, the trial
court noted that Buggs lost thirty days of credit time while he was in the
Department of Correction and sixty days while he was in the work release
program. This appeal ensued.
Discussion and Decision [5] Buggs contends that the trial court erred when it honored the community
corrections’ deprivation of credit time and withheld sixty days of good time
credit because community corrections did not have the authority to deprive him
of credit time.
[6] We first note that the State contends Buggs has waived this issue on appeal
because he failed to provide an adequate record. Specifically, the State asserts
that “the only documentation [Buggs] has included with respect to the credit
2 Buggs does not appeal the deprivation of those thirty days.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 4 of 7 time calculation on appeal is two one-page documents, one page of which has
no information with respect to who authored it and the second of which was
allegedly authored by someone in community corrections.” Appellee’s Br. at
11-12. Further, the State asserts that “[i]t is unclear whether the deprivations
occurred due to sanctions [Buggs] received while in the D.O.C. or while in
community corrections.” Id. at 12.
[7] But Buggs provided the transcripts from the August 3 and September 7
hearings, which provide information on the issue of credit time. And it is clear
from those transcripts that the State did not dispute the fact that community
corrections deprived Buggs of sixty days of credit time. During the August 3,
2017, hearing, the Community Corrections Team Officer stated that Buggs was
deprived of thirty days while he was in the Department of Correction and sixty
days while he was on work release. And the State responded and stated: “I’ve
heard of community corrections being able to take away good time credit[.]”
Tr. Vol. II at 6. Further, during the September 7 sentencing hearing, Buggs
stated that one of the issues regarding credit time “is 60 days taken from work
release under Marion County Community Corrections[.]” Id. at 10. The State
replied that Buggs “was given a hearing and opportunity and he admitted to the
violation so his credit time was deprived at work release.” Id. at 11. The record
is clear both that Buggs preserved the issue, and the State did not dispute, that
community corrections had deprived Buggs of sixty days of credit time. As
such, Buggs provided an adequate record and we will reach the merits of Buggs’
appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 5 of 7 [8] On the merits, Buggs contends that the trial court erred when it miscalculated
his earned credit time because it honored the deprivation of credit time by
community corrections and that community corrections lacked the authority to
deprive him of credit time. Credit time is a matter of statutory right, and trial
courts do not have discretion in awarding or denying such credit. Hickman v.
State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017). Whether Buggs is entitled to
additional credit time presents a question of statutory interpretation, which this
court reviews de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).
[9] In support of his contention, Buggs relies on Shepard v. State, 84 N.E.3d 1171,
1174 (Ind. 2017), in which the Indiana Supreme Court held that, absent rules
that expressly pertain to the delegation of good time credit deprivation powers,
the community corrections director lacked authority to deprive the defendant of
any earned good time credit. The State does not dispute this issue on appeal
and concedes that “if the community corrections program did in fact deprive
[Buggs] of 60 days of good time credit that he earned while serving his sentence
in the community corrections program, it was without authority to do so.”
Appellee’s Br. at 13. The State further acknowledges that Buggs “may be
entitled to receive 60 additional days of good credit time,” which “would
amount to 851 days of good time credit as of the time of his community
corrections revocation hearing (881 days of actual time served minus 30 days of
good time credit that the D.O.C. previously deprived [Buggs] of, which [Buggs]
does not challenge.” Appellee’s Br. at 13-14. Our Supreme Court’s opinion in
Shepard requires that Buggs’ earned credit time be recalculated. Accordingly,
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 6 of 7 we reverse the trial court’s determination as to Buggs’ good time credit, and we
remand to the trial court with instructions to reinstate sixty days of good time
credit and to recalculate Buggs’ credit time.
[10] Reversed and remanded with instructions.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2215 | February 16, 2018 Page 7 of 7