Brown v. State

MARIO BROWN, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A02-1008-CR-905

COURT OF APPEALS OF INDIANA

April 27, 2011

FOR PUBLICATION

ATTORNEY FOR APPELLANT: 、

VICTORIA L. BAILEY

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANGELA N. SANCHEZ

KARL SCHARNBERG

Deputy Attorneys General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Jeffrey L. Marchal, Judge Pro Tempore

Cause No. 49G06-0812-FC-294447

OPINION-FOR PUBLICATION

BAILEY, Judge

Case Summary¹

Appellant-Defendant Mario Brown ("Brown") appeals the Marion County Court's order following the revocation of his placement in Marion County Community Corrections. We affirm.

Issues

Brown raises one issue for our review, which we restate as the following three issues:

I. Whether Ind. Code § 35-38-2.6-6, as amended, should apply retroactively to his case, thereby making him eligible for credit time² for the period he spent in community corrections;

II. Whether applying I.C. § 35-38-2.6-6 only prospectively denies Brown Equal Protection under the Fourteenth Amendment of the United States Constitution; and

III. Whether the trial court abused its discretion in denying him any credit time for which he was eligible.

Facts and Procedural History

On April 14, 2009, Brown pled guilty to Operating a Motor Vehicle after License Forfeited for Life, as a Class C felony. On May 27, 2009, the trial court imposed a three year sentence, and ordered Brown to serve it in the Marion County Community Corrections Home Detention Electronic Monitoring Program.

During the 2010 legislative session, the Indiana General Assembly amended the statute concerning credit time eligibility for persons serving on home detention in community corrections programs. 2010 Ind. Acts 1217-36. Before amendment, the statute stated:

(a) As used in this subsection, "home" means the actual living area of the temporary or permanent residence of a person. The term does not include a:

(1) hospital;

(2) health care facility;

(3) hospice;

(4) group home;

(5) maternity home;

(6) residential treatment facility;

(7) boarding house; or

(8) public correctional facility.

A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6 unless the person is placed in the person's home.

(b) A person who is placed in a community corrections program under this chapter may be deprived of earned credit time as provided under rules adopted by the department of correction under IC 4-22-2.

I.C. 35-38-2.6-6 (2004).

The statute, amended and effective July 1, 2010, currently states:

(a) As used in this subsection, "home" means the actual living area of the temporary or permanent residence of a person. A person who is placed in community corrections under this chapter is entitled to earn credit time under IC 35-50-6.

(b) A person who is placed in a community corrections program under this chapter may be deprived of earned credit time as provided under rules adopted by the department of correction under IC 4-22-2.

I.C. 35-38-2.6-6.

On July 15, 2010, Marion County Community Corrections filed a Notice of Community Corrections Violation, alleging that Brown failed to comply with the rules and regulations of his placement because he twice tested positive for marijuana. The trial court held a hearing on the alleged violations on July 22, 2010, where Brown admitted to the violations. It then ordered that Brown serve the balance of his original three-year sentence in the Department of Correction ("DOC"). He received credit for the 412 days served in community corrections, but received no credit time for this period.³

On July 29, 2010, Brown filed a Motion for Additional Credit Time, arguing that the Indiana General Assembly intended the amended version of I.C. § 35-38-2.6-6 to apply retroactively, and consequently, he was eligible for (and should receive) credit time in addition to his credit for time served while in community corrections. In his motion, he alsoargued that denying him credit time eligibility violates his right to Equal Protection under the Fourteenth Amendment to the U.S. Constitution. The trial court denied his motion and he now appeals.

Discussion and Decision

Standard of Review

For the purposes of appellate review, we treat the revocation of placement in a community corrections program the same as we do the revocation of probation. Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998). "[P]lacement in a community corrections program is an alternative to commitment to the Department of Correction and made at the sole discretion of the trial court...a defendant is not entitled to serve his sentence in a community corrections program but, as with probation, placement in the program is a 'matter of grace' and a 'conditional liberty that is a favor, not a right.'" Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995). We review a trial court's sentencing decisions for probation violations for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). A court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances. Id.

Retroactive Application of the Statute

Brown's principal argument for credit time eligibility is that Indiana Code section 3538-2.6-6 is a remedial statute that the General Assembly intended to apply retroactively.⁴ "The general rule of statutory construction is that unless there are strong and compelling reasons, statutes will not be applied retroactively." State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005). "Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well." Id. The exception to this rule is "remedial statutes," which are "intended to cure a defect or mischief that existed in a prior statute." Id. "Remedial statutes will be applied retroactively to carry out their legislative purpose unless to do so violates a vested or constitutional guaranty." Id.

However, not all remedial statutes are automatically applied retroactively—"[i]t has long been the law in this jurisdiction that although statutes and rules concerning procedural and remedial matters may be made to operate retroactively, it is not the case that they must apply retroactively." Id. (citing State ex rel. Uzelac v. Lake Crim. Ct., 247 Ind. 87, 212 N.E.2d 21, 24 (1965)) (emphasis in original). Retroactive application must also not violate a vested right or constitutional guaranty. Bourbon Mini-Mart, Inc. v. Gast Fuel & Svcs., Inc., 783 N.E.2d 253, 260 (Ind. 2003). Therefore, retroactive application of a statute is appropriate when: (1) the new statute is remedial; (2) a strong and compelling reason exists for applying it retroactively; and (3) retroactive application does not violate a vested right or aconstitutional guaranty. See Walsman v. State, 855 N.E.2d 645, 650 (Ind. Ct. App. 2006).

Thus, the first issue to address is whether the amendment to I.C. § 35-38-2.6-6 is remedial in nature. A statute is remedial when it is "intended to cure a defect or mischief that existed in a prior statute." Pelley, 828 N.E.2d at 919. We have also found statutes to be remedial when they are enacted in response to case law, Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), or are a particular type of law which are inherently remedial. Bourbon Mini-Mart, 783 N.E.2d at 260-61. In deciding whether a statute is remedial, we look to, among other things, the alleged mischief or defect the statute seeks to cure. State ex rel. Indiana State Bd. of Dental Examiners v. Judd, 554 N.E.2d 829, 832 (Ind. Ct. App. 1990). If a statute is remedial, it should be liberally construed to advance the remedy for the mischief for which it was enacted. State ex rel. Griswold v. Blair, 32 Ind. 313, 316 (1869).

Brown particularly directs our attention to Martin v. State, where our supreme court found remedial a statute concerning credit for time served while on home detention as a condition of probation, and applied it retroactively. 774 N.E.2d 43, 45 (Ind. 2002). In that case, while Martin's credit for time served appeal was pending, the General Assembly amended the statute to provide that a person earns credit for time served on home detention as a condition of probation; previously, the law was silent on the matter. Id. at 44. As a result of the statute's past silence, a split in authority emerged in the Indiana Court of Appeals, eventually leading us to encourage the General Assembly to address the issue because, as it stood, the area was laden with contradiction and confusion. Id. at 45. The General Assembly "apparently responded" to the judiciary's request by amending the law, and in light of that response, our supreme court concluded that the General Assembly's amendment was remedial because it cured the prior statute's defect of silence. Id. The Court then applied the statute retroactively to Martin's case to carry out the amendment's legislative purpose. Id.

Despite the similarity in subject matter between Martin and the case here, we find the purpose for the change easily distinguishable from Martin. Prior to July 1, 2010, I.C. § 3538-2.6-6 explicitly excluded those serving out sentences on home detention from receiving credit time; the amendment lifted that restriction. Thus, Brown essentially argues that the "defect" that the General Assembly sought to remedy was its explicit intent, expressed through the statute's language. The General Assembly even took an extra step in the prior statute by defining "home" and listing enumerated exceptions to the term. I.C. § 35-38-2.6-6 (2004). Dissimilar to Martin, the legislature's intent was unambiguous and the judiciary readily interpreted the language: "Ind. Code § 35-38-2.6-6 deprives the offender serving time on home detention of the ability to 'earn credit time under Ind. Code § 35-50-6....