Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019 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.

ATTORNEY FOR APPELLANT

Michael P. DeArmitt

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dustten Hitch,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 23, 2019

Court of Appeals Case No.

19A-CR-776

Appeal from the Bartholomew 

Superior Court

The Honorable James D. Worton, 

Judge

Trial Court Cause No.

03D01-1605-F6-2820

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019 Page 2 of 6

STATEMENT OF THE CASE

[1] Appellant-Defendant, Dustten Hitch (Hitch), appeals the trial court’s denial of 

his motion for jail time credit.

[2] We affirm.

ISSUE

[3] Hitch presents one issue for our review, which we restate as: Whether the trial 

court erred when it denied Hitch’s motion for jail time credit.

FACTS AND PROCEDURAL HISTORY

[4] On May 17, 2016, the State filed an Information, charging Hitch with Count I, 

possession of methamphetamine, a Level 6 felony; and Count II, unlawful 

possession of a syringe, a Level 6 felony. Hitch pled guilty to Count I and was 

sentenced to two years suspended to probation. As a condition of his 

probation, Hitch was placed on community corrections and was ordered to 

comply with the specific programs recommended by community corrections, 

which could consist of “work release/residential placement, day reporting, 

home detention, electronic monitoring, counseling or educational programs.” 

(Appellant’s App. Vol. II, p. 60). 

[5] On August 22, 2017, Hitch violated his probation by using marijuana and 

failing to report his living situation to community corrections. On December 

13, 2017, after a verified petition to revoke probation was filed, a fact-finding 

hearing was conducted at which Hitch admitted to the violation. The trial 
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court returned him to probation under the same terms and conditions originally 

ordered. On January 2, 2018, he violated his probation a second time by failing 

to comply with the rules and regulations of the work release program. Again, a 

verified petition to revoke probation was filed and Hitch admitted to the 

violation. As before, the trial court ordered Hitch returned to probation under 

the same terms and conditions as originally imposed. On February 27, 2018, 

Hitch violated his probation again when he failed to return to the work release 

program and by bringing contraband into the work release program when he 

did return. On March 28, 2018, after a fact-finding hearing was conducted on 

the verified petition to revoke probation, the trial court ordered Hitch to seek 

inpatient treatment at the Wheeler Mission and to return to probation. 

[6] On October 26, 2018, Hitch violated his probation a fourth time when he failed 

to complete the recommended treatment. On January 9, 2019, at the factfinding hearing, Hitch testified that he had been placed on “house arrest” since 

the previous October. (Transcript p. 29). Robin Winters (Winters), Hitch’s 

probation officer, testified that Hitch was placed on electronic monitoring on 

October 26, 2018, but due to equipment issues, Hitch had only been monitored 

for a few weeks. Before imposing its sentence, the trial court solicited 

recommendations as to Hitch’s credit time. The State entered into evidence a 

“[c]redit [d]ays [r]eport” which determined that Hitch was entitled to 233 days 

of credit. (Appellant’s App. Vol. II, p. 119). The report also noted that Hitch 

had been placed on “[d]ay [r]eporting with electronic monitoring” since 

October 26, 2018. (Appellant’s App. Vol. II, p. 119). At the conclusion of the 
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hearing, and after Hitch admitted to the violation, the trial court revoked the 

balance of Hitch’s remaining two years to the Bartholomew County Jail, while 

giving him credit for 233 days. 

[7] On January 28, 2019, Hitch filed a motion for jail time credit, in which he 

argued that he was entitled to an additional 75 days of credit for the time he 

was being “monitored electronically.” (Appellant’s App. Vol. II, p. 126). The 

State responded that because Hitch was on electronic monitoring as a condition 

of probation, he was not entitled to the additional credit time. On February 15, 

2019, the trial court denied Hitch’s motion for jail time credit. 

[8] Hitch now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[9] Hitch contends that the trial court erred when it refused to grant him an accrued 

75 days as credit time towards his sentence. While not disputing that he was on 

electronic monitoring from October 26, 2018 to January 9, 2019, Hitch 

maintains that during this time he “was essentially on home detention and/or 

was confined.” (Appellant’s Br. p. 7). Because credit time is a matter of 

statutory right, trial courts do not have discretion in awarding or denying such 

credit. Harding v. State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). The 

burden is on the appellant to show the trial court erred.

[10] Generally, a defendant sentenced to probation does not earn credit time. Ind.

Code § 35-50-6-6; see also Harding, 27 N.E.3d at 332. Exceptions to this rule 

include defendants who are in a work release program and must return to jail 
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when not working or participating in other sanctioned activities and those 

confined to home detention who must remain at their residences except for 

work, to obtain medical care, or to attend an educational program or place of 

worship. Id. “Daily reporting probation, by contrast, affording a probationer 

nearly the same degree of freedom of movement, autonomy, and privacy as 

living at liberty,” does not involve “the type of freedom restrictions that deserve 

credit time.” Hickman v. State, 81 N.E.3d 1083, 1086 (Ind. Ct. App. 2017). As 

such, electronic monitoring is more akin to daily reporting probation as the 

probationer is not limited to a particular location or confined. Instead, 

electronic monitoring programs use GPS tracking to monitor an offender’s 

whereabouts without restricting him to certain locales. See Electronic Monitoring 

Program, http://www.in.gov./idoc/3513.htm (last visited Oct. 9, 2019).

[11] At the time of sentencing, Hitch was placed on community corrections for a 

period of two years and ordered to comply with the specific programs 

recommended by community corrections, “which may include work 

release/residential placement, day reporting, home detention, electronic 

monitoring, counseling or educational programs.” (Appellant’s App. Vol. II, p. 

61). As home detention, day reporting, and electronic monitoring are indicated 

as being separate placement options, it can be inferred that Bartholomew 

County community corrections program utilizes them as independent and 

distinct placement alternatives. 

[12] During the dispositional hearing on his fourth probation violation, Hitch 

testified, without any accompanying details, that he had been placed on “house 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-776 | October 23, 2019 Page 6 of 6

arrest” since October. (Tr. p. 29). However, Winters advised the trial court 

that Hitch was “on electronic monitoring.” (Tr. p. 32). She clarified that he 

was placed on electronic monitoring “for only a few weeks, due to equipment 

issues.” (Tr. p. 32). During the proceeding, the State, without any objection 

from Hitch, entered Hitch’s “[c]redit [d]ays [r]eport” into evidence which noted 

that Hitch “was on [d]ay [r]eporting with electronic monitoring: 10/26/18 –

current.” (Appellant’s App. Vol. II, p. 119). Likewise, Hitch’s motion for jail 

time credit affirmed that he was “monitored electronically” awaiting 

disposition. (Appellant’s App. Vol. II, p. 126). 

[13] Despite Hitch’s assertion that he was on home detention and not on day 

reporting with electronic monitoring, the only evidence he points to in support 

of his argument is a dictionary definition of confinement. He fails to provide 

any details indicating a restrictive lifestyle which confined him to his home, nor 

does he cite to any legal authority awarding credit time to a probationer on day 

reporting with electronic monitoring. Because Hitch failed to carry his burden 

of proof, we cannot conclude that the trial court erred in not giving him credit 

time for the days on day reporting with electronic monitoring. 

CONCLUSION

[14] Based on the foregoing, we conclude that the trial court properly denied Hitch’s 

motion for jail time credit.

[15] Affirmed.

[16] Vaidik, C. J. and Bradford, J. concur