Crone, J.
Case Summary
Twenty-two-month-old J.S. died shortly after he was babysat by his mother’s live-in boyfriend, Nathan K. Barker. Early in the afternoon, Barker had called J.S.’s mother (“Mother”) at work and told her that J.S. had fallen off the couch. He said that he had called for an ambulance and that the paramedics had said that the child was fine. In fact, he had never called for help. Later that night, Mother called 911, and by the next morning J.S. was on life support. J.S. died later that day, and an autopsy showed that he had suffered massive brain injuries as well as injuries to his abdomen, eyes, mouth, shoulder, thigh, buttocks, and penis.
The State charged Barker with class A felony neglect of a dependent causing death, class A felony battery causing death, and class D felony neglect of a dependent. Barker agreed to plead guilty to class A felony neglect of a dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and to cap the executed portion of his sentence at forty years. The court sentenced Barker to forty-five years, with forty years executed and the remainder suspended to probation, with 120 days to be served on home detention.
Barker now appeals, claiming that the trial court abused its discretion in designating aggravating and mitigating factors and in imposing a term that exceeded the forty-year cap on the executed portion of his sentence. He also claims that his sentence is inappropriate in light of the nature of the offense and his character. Finding that the imposition of 120 days of home detention causes the executed portion of Barker’s sentence to exceed the forty-year cap, we remand for a new sentencing order on that issue. In all other respects, we affirm his sentence.
….
II. Home Detention
“If [a] court accepts a plea agreement, it shall be bound by its terms.” Ind. Code § 35-35-3-3(e). Barker contends that the trial court violated the plea agreement’s forty-year cap on his executed sentence by ordering 120 days of home detention in addition to his forty-year executed sentence. “An ‘executed sentence’ is one that is actually served in a correctional facility, or other alternative correctional program, such as work release or home detention as opposed to a suspended sentence or sentence of probation.” Hildebrandt v. State, 770 N.E.2d 355, 360 (Ind. Ct. App. 2002), trans. denied. A person on home detention must remain at his residence except to engage in certain court-approved activities: to work or seek work, to obtain medical, psychiatric or counseling services, to attend an educational institution or program or a religious service, or to participate in work release or restitution. Ind. Code § 35-38-2.5-6(1); Reed v. State, 844 N.E.2d 223, 225 (Ind. Ct. App. 2006). A person who violates home detention is subject to prosecution for the crime of escape. Ind. Code § 35-38-2.5-6(2); Ind. Code § 35-44.1-3-4 (2012). Our statutes make it clear that home detention may be imposed as part of a community corrections program or as a condition of a person’s probation. Compare Ind. Code § 35-38-2.6-4.5 (where court imposes home detention as part of community corrections program) with Ind. Code § 35-38-2.5-5(a) (“as a condition of probation a court may order an offender confined to the offender’s home for a period of home detention”). In either case, the detainee is entitled to earn credit time. See Ind. Code § 35-38-2.6-6(a) (“A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6.”); Ind. Code § 35-38-2.5-5(e) (“A person confined on home detention as a condition of probation earns credit for time served”). [Footnote omitted.]
Here, Barker concedes that the trial court sentenced him to home detention as a condition of his probation. Notwithstanding, he argues that because a detainee is now entitled to receive credit for time served on home detention, home detention must be considered executed time rather than time suspended to probation. We agree.
To say that the case law has been murky on the issue of credit time for home detainees would be an understatement. Home detention may be imposed prior to trial, as a direct placement in a community corrections program, or as part of probation. In Capes v. State, our supreme court held that the defendant’s in-home detention prior to trial constituted confinement sufficient to qualify him for credit time. 634 N.E.2d 1334, 1335 (Ind. 1994), overruled by Franklin v. State, 685 N.E.2d 1062 (Ind. 1997). In Franklin, our supreme court held that an amendment to the post-conviction home detention statute evinced legislative intent that credit time could no longer be awarded to pretrial detainees. 685 N.E.2d at 1063-64. In Purcell v. State, our supreme court held that the trial court erred in failing to give the defendant 690 days’ credit for the time that he actually served on home detention pursuant to a direct placement in a community corrections program. 721 N.E.2d 220, 223-24 (Ind. 1999). Purcell overruled Franklin, but only as to Franklin’s holding that the applicable statute prohibited a defendant serving a direct home detention placement as part of community corrections from earning credit for time served. Id. In a footnote, the Purcell court emphasized that it had revisited the question of credit time for pretrial home detainees and concluded that a trial court is within its discretion to deny a defendant credit toward his sentence for pretrial home detention time served. Id. at 224 n.6.
The case most procedurally similar to Barker’s is Antcliff v. State, in which another panel of this Court addressed the issue of whether the trial court exceeded a six-year cap on the executed sentence contained in the defendant’s plea agreement when it ordered that he serve six years in the Department of Correction (“DOC”), followed by home detention as a condition of his probation. 688 N.E.2d 166, 168 (Ind. Ct. App. 1997). In concluding that Antcliff’s home detention did not amount to confinement in the sense of imprisonment or executed time, the Court relied on the fact that at that time, a person placed on home detention as part of his probation was not statutorily entitled to credit time. Id. In 2001, the legislature responded by amending Indiana Code Section 35-38-2.5-5 by adding subsection (e), specifically entitling the detainee serving home detention as part of his probation to earn credit for time served. When a statute mandates credit time, the trial court does not have discretion in awarding or denying such credit. Lewis v. State, 898 N.E.2d 1286, 1290 (Ind. Ct. App. 2009), trans. denied. [Footnote omitted.] Whether home detention is imposed via a direct placement in a community corrections program or as a condition of probation, its accompanying statutory requirement that the detainee receive credit time militates toward counting it as part of the executed portion of his sentence. This position is further buttressed by the statute’s provision concerning a noncompliant detainee’s exposure to prosecution for felony escape, the very nature of which connotes confinement from which the errant detainee has fled. Ind. Code § 35-38-2.5-6(2). See Ind. Code § 35-44.1-3-4 (2012) (defining felony escape as intentionally fleeing from lawful detention or knowingly or intentionally violating a home detention order). See also Ind. Code § 35-38-2.5-13 (describing misdemeanor unauthorized absence from home detention as the offender leaving or remaining outside his home without permission or traveling to unauthorized location).
Based on the foregoing, we conclude that Barker’s 120-day home detention was part of his executed sentence and that by ordering it in addition to his forty-year commitment to the DOC, the trial court exceeded the forty-year cap on the executed portion of his sentence. Consequently, we remand for a new sentencing order that does not violate the forty-year cap outlined in Barker’s plea agreement.
….
Based on the foregoing, we remand for a sentencing order that does not exceed the forty-year cap on the executed portion of Barker’s sentence. In all other respects, we affirm his sentence.
Remanded.
BARNES, J., and PYLE, J., concur.