Supreme Court looks weighs inmate’s good time credit

Statutory interpretation was at the center of a case before the Indiana Supreme Court this week as the justices heard arguments to decide whether an inmate’s good time credit was properly revoked.

During oral arguments before the high court Thursday, Cara Wieneke, counsel for appellant/defendant Richard Shepard, told the justices the Vigo Superior Court had overstepped statutory bounds by revoking Shepard’s good time credit when he was re-assigned to the Department of Correction after various violations of his community corrections placement. Shepard was entitled to credit for 190 days served in the Vigo County Community Corrections program, but various sanctions led to his loss of 225 days of good time credit, essentially zeroing out his credit earned.

But under Indiana statute, particularly Indiana Code section 35-38-2.6-6, there is currently no statutory authority for anyone, whether a trial court judge or community corrections director, to take away good time credit for a direct placement, such as Shepard, in community corrections, Wieneke said. Thus, the trial court was wrong to revoke Shepard’s credit, and the Court of Appeals was wrong to affirm that decision, she said. 

But Henry Flores, counsel for the state, shared a different reading of I.C. 35-38-2.6-6, which holds, “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… .” The DOC has not promulgated any rules, which Wieneke said indicates a lack of authority to revoke credit. But Flores countered, saying the statute’s language is permissive and simply gives the DOC the option of promulgating rules if it so chooses.

The lack of any promulgated rules so far indicates the DOC is satisfied with how local community corrections programs are handling the revocation of credit, Flores said, dismissing Wieneke’s argument that a lack of rules equals a lack of authority. Thus, the trial court was not overstepping its bounds when Shepard’s good time credit was revoked, but rather was restating a decision already made by community corrections and the DOC, he said.

But the justices seemed to struggle with accepting Flores’ argument, with Chief Justice Loretta Rush saying her interpretation of I.C. 35-38-2.6-6 was that good time credit could not be revoked if the DOC did not promulgate rules. Justice Geoffrey Slaughter voiced a similar concern, but Flores repeatedly said the DOC did not need to promulgate any rules because it was satisfied with the other statutory authority in place that currently deals with credit revocation.

Prompted by Slaughter to identify that authority, Flores pointed to I.C. 35-50-6-4, which address inmates in the DOC, and IC 11-11-5, which addresses offenders placed in community corrections or assigned to a community transition program. But Wieneke noted Shepard was a direct placement into community corrections, which is an area governed by I.C. 35-38-2.6-6.

The justices also had some concerns about Wieneke’s argument, with Rush noting the large number of community corrections direct placements who would be impacted by a decision finding no authority to revoke good time credit.

Further, Slaughter and Justice Mark Massa asked if Shepard could truly be considered a direct placement, considering he was initially assigned to the DOC for his felony drug conviction, but was then moved to community corrections after a sentence modification. But Wieneke countered by saying the DOC considered Shepard as a direct placement when it moved him to the county program, so that question was not an issue in the case.

Oral arguments in Richard Shepard v. State of Indiana, 84S01-1704-CR-00190, can be viewed here.