Community Corrections Violations and Credit Time

Can Community Corrections Take Away Credit Time on Violations? 

Recently in Richard Shepard v. State of Indiana, under case number 84S01-1704-CR-00190, the Indiana Supreme Court ruled that the director a Community Corrections program lacked the authority to deprive a defendant’s good time credit.

In 2013, Shepard pleaded guilty to dealing in cocaine as a class B felony and, in exchange, received an 11-year sentence in the DOC with 900 days total credit, including 450 days pre-trial, good-time credit.

In 2015, Shepard petitioned for modification of his placement and the court allowed him to serve the balance of his sentencing in the Vigo County work release program.

On April 20, 2016, the State file a motion to revoke his probation as well as his placement with community corrections citing that on several occasions he did not return to the work release facility as he should have.  Prior to the petition to revoke, each time Shepard did not return as he should, the work release facility deprived him of credit he had earned which totaled 225 days of deprived credit time. After the hearing on the violation, Shepard was sanctioned to serve the balance of his sentence in the DOC but he was not given credit for the 190 days he’s served in work release as he’d be deprived 225 days already.  Shepard appealed the trial court’s decision, which allowed him to be deprived of the credit time and the Court of Appeals upheld that ruling as if taking his credit time away was legitimate.

However, the Supreme Court, after interpreting IC 35-38-2.6-6, determined that the director of the work release facility did not have authority to deprive Shepard of the credit he had earned while in the facility.  Since Shepard had served 190 days in the facility, according to law, he was entitled to an additional 190 days absent any deprivation of credit time.  Shepard did not dispute that he violated, he only disputed that the work release program director lacked the authority to reprimand offenders by taking away credit time.

According to Indiana Code section 35-38-2.6-5, a program direction has the authority to:

  • Change the terms of the offender’s placement;
  • Continue the placement unchanged;
  • Reassign the offender to a different program; or
  • Request that the trial court revoke the offender’s placement.

As you can see from the list above, there is no mention of the director of a community corrections program to deprive an offender of credit they had already earned.

However, I.C. 35-38-2.6-6(d) provides that a person who is placed in a community corrections may be deprived of credit “as provided by the rules adopted by the department of corrections.”  The Supreme Court interpreted this statute to mean that it was within the authority of the department of corrections (DOC) to not only deprive credit but to also delegate the power to deprive credit.  Currently, there is no statute delegating this authority and, therefore, only the DOC was allowed to deprive Shepard of credit he earned while serving his sentence in work release.

According, the community correction program, and anyone affiliated, could not unilaterally deprive Shepard of the credit he’d earned.

The Supreme Court was clear to point out that the DOC, in the future, can promulgate rules in the future that would allow for the director of a community corrections program to deprive credit time but, for Shepard, and anyone currently serving a sentence in a community corrections facility, it’s too late for that.

If you or anyone you know if serving a sentence in a community corrections program and community corrections is trying to take days away from your credit that have already been earned, it is important to contact Banks and Brower, LLC to determine whether that credit time was legally deprived.  Unless the days were deprived at the direction of the DOC, it is not lawful.  For more information, give us a call or send us an email.  We’re available 24/7/365 by calling us at 317.732.1059 or emailing us a info@banksbrower.com.

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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
(317) 870-0019