COA affirms reincarceration of man erroneously released years early

A man who was erroneously released from prison more than two years early must return to the Department of Correction after the Indiana Court of Appeals declined to adopt a doctrine that would award him credit for the time he was free.

The issue raised in Jordan Allen Temme v. State of Indiana, 20A-CR-275, was one of first impression, according to Judge Robert Altice’s Tuesday opinion.

Jordan Temme had been in jail since June 2016, when he was charged with various felonies and misdemeanors. He was ultimately convicted under two causes of two Level 6 felony charges and eight misdemeanors and was sentenced to an aggregate of nine years executed in the Department of Correction.

During his December 2017 sentencing, the Vanderburgh Superior Court applied 541 days of pretrial credit time to Temme’s sentence. Of those days, 450 were designated for his three misdemeanor convictions under one cause, F1-3715.

However, intake staff at the DOC incorrectly applied those 450 days to Temme’s felony sentences, resulting in his release on Oct. 4, 2018, to the Vanderburgh County Jail, where he would serve his misdemeanor sentences. Upon Temme’s transfer, the jail staff applied the 450 days of credit time to his misdemeanor sentences.

“Temme was released from jail on July 4, 2019, having served essentially no time for his felony conviction under F1-3715,” Altice wrote, noting the time Temme served in the DOC completed only his felony sentence under the second cause.

The state discovered the error within a month and asked the trial court to re-examine Temme’s credit time. The DOC acknowledged the credit time mistake was missed at all levels, while Temme testified that his sister had been assured while he was still incarcerated that his projected July 2019 release date was accurate.

Following his release, Temme moved in with his parents and immediately returned to work. Once the state moved to reincarcerate him, he filed three motions: one to award credit time for time erroneously at liberty, one for the remainder of his executed sentence to be served in community corrections and one to modify his sentence to community corrections.

All of his motions were denied and Temme was ordered back to the DOC in January 2020, though his reincarceration was stayed pending appeal. At the Court of Appeals, he challenged only the denial of his motion for credit time for time erroneously at liberty, a federal doctrine he urged to the COA to adopt.

Altice quoted retired 7th Circuit Court of Appeals Judge Richard Posner to explain the doctrine of credit for time erroneously at liberty: “So, for example, if the sentence is five years and the defendant begins to serve it on July 1, 1990, the government cannot, by releasing him between January 1, 1992, and December 31, 1992, postpone the expiration of his sentence from June 30, 1995, to June 30, 1996 – cannot in fact postpone it a day beyond June 30, 1995. The sentence expires on schedule even though the defendant will have served four years rather than five. The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiration of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden.”

Though other states have adopted the doctrine, the state of Indiana in this case said doing so would go against state statute — specifically, Indiana Code § 35-50-6-0.5(1), which defines “accrued time” as “the amount of time that a person is imprisoned or confined.” The COA agreed, also finding no due process violation in the DOC’s error.

“We sympathize with Temme’s plight and commend him on his effective reintegration into society,” Altice wrote. “Indeed, by all accounts, Temme has been a hard-working, law-abiding citizen since his release from incarceration some fifteen months ago.

“The DOC’s inadvertent and quickly-discovered error in this case, however, does not operate under the law of this state to cancel any part of Temme’s punishment for the crimes for which he was justly convicted and sentenced,” the judge continued. “Accordingly, we conclude that the trial court did not err in denying Temme’s Motion to Award Credit Time for Time Erroneously at Liberty.”