Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 1 of 6 

### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Karen Celestino-Horseman Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General Lyubov Gore Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

James Boggess, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff February 9, 2016 Court of Appeals Case No. 49A02-1506-CR-681 Appeal from the Marion Superior Court The Honorable Lisa Borges Trial Court Cause No. 49G04-1308-FB-57570

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 2 of 6 

# Case Summary

[1] James Boggess appeals the trial court’s failure to award him credit for time served as well as good time credit for the ten months he served in pretrial home detention. Based on the facts and circum stances of this case, the trial court did not abuse its discretion in failin g to award Boggess these credits. 

# Facts and Procedural History

[2] Boggess and William Bowser have known each other for fifty years and live a block and a half away from each other on the east side of Indianapolis. On August 1, 2013, the two men were drin king alcohol together when they began to argue about an incident that occurre d between them almost twenty-five years ago. The two men became involved in a fist fight, and Bowser knocked down Boggess, who went home and contacted the police. After the police left, Boggess telephoned his son, Justin, an d told the young man to come to Boggess’ house. Justin an d a friend arrived at Bogge ss’ house armed with two baseball bats and a hammer, and the th ree men drove to Bo wser’s house. Bowser was in his bedroom when he h eard screaming and th e windows of his home being broken. He jumped out a window and ran towards a neighbor’s house. Boggess, Justin, and Justin’s frie nd ran after Bowser, caught him on the neighbor’s porch, and struck Boggess appr oximately thirty times before running off. Bowers sustained several facial fractures and the vision in his eye was permanently impaired.Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 3 of 6 [3] On September 4, 2013, the State charged Boggess with aggravated battery as a class B felony. He was released on bond to electronic monitoring home detention on September 11, 2013. Bogge ss remained on home detention until his trial at the end of June 2014. According to Boggess, “[p]retrial home detention allowed [him] to co ntinue working so he was able to pay the cost of his confinement and was also able to retain private counsel so no public defender was appointed to represent hi m until he was taken into custody and imprisoned.” Appellant’s Br. p. 5-6. 1 A jury convicted Boggess of the charged offense, and Boggess was take n into custody. The tria l court sentenced him to twelve years, ten years executed and tw o years in community corrections. The trial court also suspended two years of the sentence to probation. The trial court awarded Boggess thirty-five days of credit time, which covered the periods from September 5 to Septembe r 11, 2013, when Boggess was released on bond, and June 24 to July 2, 2014, when Boggess was sentenced. The trial court did not award Boggess any credit time for his time spent on pretrial home detention. Boggess appeals the trial cour t’s failure to award him both credit for pretrial time served and good time credit.

1 Boggess cites “App. 132” as support for these facts; however, this page of his appendix contains no such facts.Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 4 of 6 

# Discussion and Decision

[4] At the outset, we note that there is a difference between credit for time served and good time credit. Specifically, credit for time served is th e credit toward the sentence a prisoner receives fo r the time actually served. Purcell v. State , 721 N.E.2d 220, 222 (Ind. 1999). Good time credit is the a dditional credit a prisoner receives for good behavior and educational attainment. Id. Boggess believes that the trial co urt should have awarded him both types of credit.

[5] Under Indiana Code section 35-50-6-4, “[a] person who is not a credit restricted felon and who is imprisoned for a crime or confined awaiting trial or sentencing is initially assigned to Class I” for the pu rposes of assigning cr edit. In Class I, a person “earns one (1) day of credit time for each day the person is imprisoned for a crime or confined awaiting trial or sentencing.” Ind. Code § 35-50-6-3.

[6] Because pre-sentence jail-time credit is a matter of statutory right, trial courts generally do not have discretion in awarding or denying credit. Molden v. State , 750 N.E.2d 448, 449 (Ind. Ct. App. 2001). However, those sentencing decisions not mandated by statute are within the discretion of the trial court and will be reversed only upon a showin g of abuse of that discretion. Id. An abuse of discretion occurs when the trial cour t’s decision is clear ly against the logic and effect of the facts and circumstances before it. Hoglund v. State , 962 N.E.2d 1230, 1237 (Ind. 2012). Because there is no statute that addresses credit for time served while on pretri al home detention, we will review the trial court’s decision for an abuse of discretion. Molden , 750 N.E.2d at 449.Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 5 of 6 [7] In Purcell , 721 N.E.2d at 220, 224 n.6, th e Indiana Supreme Court, while acknowledging that the issue was not dire ctly before it, concluded that a trial court was within its discretion to deny a defendant credit toward his sentence for pretrial time served on home detent ion. The Court explained that absent legislative direction, a defend ant is only entitled to cr edit toward a sentence for pretrial time served in a prison, jail, or other facility that imposes substantially similar restrictions upon personal liberty. Id. ; s ee also Molden , 750 N.E.2d at 451 (concluding that time spent in pretrial home detention is not equivalent to pretrial time served in a pr ison or jail and that pret rial home detainees are not entitled as a matter of law to receive cr edit for time served on home detention toward any eventual sentence).

[8] Here, Boggess has not provided any evid ence that the terms of his home detention imposed restrictions upon his pe rsonal liberty substantially similar to a prison. Rather, according to Bogge ss, the terms of his home detention allowed him to continue working. Appella nt’s Br. p. 5. Because the terms of Boggess’ home detention did not impose substantial restrictions upon his personal liberty, the trial court did not abuse its discretion in failing to award him credit for time serv ed on home detention. 2, 3

2 To the extent Boggess argues that the trial court ab used its discretion in failing to award him good time credit, we note that it is not possible for the trial co urt to award good time credit where there is no credit awarded for time actually served. This is because there is no initial credit on which to base the additional credit. We find no abuse of the trial court’s discretion.
3 Boggess also asks us to “encourage the Indian a Supreme Court to reconsider its decision in State of Indiana v. Purcell , 721 N.E.2d 220, 224, n.6 (1993).” We are bound by the decisions of the Indiana Supreme CourtCourt of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-681 | February 9, 2016 Page 6 of 6 [9] Affirmed.
Bailey, J., and Crone, J., concur.

until the law is either changed by that Court or by legislative enactment. Dragon v. State , 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. granted, then grant of trans. vacated

.