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 establis hing 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 Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

JAMES FU SCO, ) ) 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– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant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 restat e 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 de pendent child, Class D feloni es, I nd. 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 Fus co to three years on each Count. T he trial court ordered t he 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 de tention began on “October 15, 2009, or as soon thereafter as monitoring equipment is installe d in [Fusco]’s residence.” (Appellant’s App. p. 15). C onditions of Fusco’s sentence included reporting and providing his address and telephone number to his prob ation officer, abstaining from

1 We note that the transcript indicates that Fusco’s sentencing hearing was held on October 25, 2009. However, the CCS indic ates that the hearing was held on October 15, 2009.3

controlled substances and alcohol, pay ing child support, and obeying his home detention rules

. On April 8, 2010, the probation department filed a petition to revoke Fusco’s
p robation , alleging that Fusco had violated his pr obation 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. T he State amended the revocation petition to allege th at Fusco had failed to apprise his probation officer of his address and telephone number from April 8, 2010 to March 18, 2012

. Fusco a dmitted 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 C orrection and he received credit for thirty

five days incarceration on his bench war rant. Fusco now appeals. Additional facts will be provided as necessary.

D ISCUSSION AND DECISION On appeal, Fusco argues that the trial court erred when it sentenced him fo llowing 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 home4

detention under this chapter is computed on the basis of the actual days the person spends on home detention. ” S ubsection (e) provides tha t “ [a] person confined on home detention as a condition of probatio n earns credit for time served.” When read in combination,
t hese subsections afford a defendant a credit against his sentence for actual time served under home detention as a condition of probation

. While t he State agrees that the trial court erred b y not giv ing Fusco credit for time actually served, it asserts that the record does not establish how much time Fusco actually served. T he trial court’s October 15, 2009 Order For Home Detentio n provided that Fusco’s home detention was to begin as soon as monitoring equipment w as 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 1 8 , 201 2

. (Transcript p. 46 ). The State requests and we agree that the matter should be remanded for an evidentiary hearing to establish t he 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 home5

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, t he trial court ’s October 15, 2009 Order For Home Detention provides that “having suspended all of [Fusco’s] sentence, the [c]ourt now order s that as a condition of probation , [Fusco] shall be confine d to h is home for a period of si x month s [...] .” (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,
t he State’s reliance on Cottingham is inap posite and we choose instead to follow
Peter i n k

. Accordingly, on remand, the trial court is also instructed to calculate “good time” credit Fusco may have accumulated during his home detention.6 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 cr edit 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