Altice, J.
Pursuant to a negotiated plea agreement, Jordan Allen Temme was convicted, under two separate causes, of two Level 6 felonies and eight misdemeanors and was sentenced to an aggregate executed term of nine years. The trial court’s sentencing order allocated credit time between certain counts, with the bulk – 450 days of credit – applied toward three of the misdemeanors under this cause.
Due to an error by the Indiana Department of Correction (DOC) regarding application of Temme’s presentence credit time, he was released from incarceration with about two and one-half years still remaining on his executed sentence. This resulted from Temme’s term of imprisonment being served in prison (for the felony offenses) and the local jail (for the misdemeanor offenses), and the misdemeanor credit time – 450 days – being applied erroneously to each stint of imprisonment.
Within a month of Temme’s erroneous release, the State filed a motion with the trial court to re-examine credit time. Temme never denied that an error occurred, but he asked the court to apply the doctrine of “credit for time erroneously at liberty” (the Doctrine) or, in the alternative, to permit him to serve the remainder of his sentence on work release through community corrections. The trial court denied Temme’s motions and ordered that he serve the remainder of his executed time in prison. The trial court, however, stayed the matter pending appeal. Temme now appeals and asks that, as a matter of first impression in Indiana, we adopt the Doctrine and apply it here, where he was negligently released early by the DOC through no fault of his own.
We affirm.
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Temme asserts that it is “draconian to re-incarcerate a faultless rehabilitated prisoner because of the government’s negligence in delaying the expiration of his sentence.” Appellant’s Brief at 11. Relying on cases from other jurisdictions, Temme urges us to adopt the Doctrine and apply it here because (1) he had clean hands (i.e., was not at fault for his time spent at liberty) and (2) the government was negligent in releasing him early due to the DOC’s miscalculation of credit time.
The Doctrine is an equitable doctrine, pursuant to which “a defendant mistakenly released for a short period of time or with a lesser degree of governmental fault will be granted day-for-day credit.” Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty, 45 Cath. U. L. Rev. 403, 404 (1996). Although there is variability in its application, the Doctrine has strong roots in federal jurisprudence and has been adopted in many states. See generally Andrew T. Winkler, Implicit in the Concept of Erroneous Liberty: The Need to Ensure Proper Sentence Credit in the Fourth Circuit, 35 N.C. Cent. L. Rev. 1, 17 (2012); Danielle E. Wall, Note, A Game of Cat and Mouse-or Government and Prisoner: Granting Relief to an Erroneously Released Prisoner in Vega v. United States, 53 Vill. L. Rev. 385, 400 (2008); Chin, supra, 45 Cath. U. L. Rev. 403.
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The State’s primary argument is that we should refuse to adopt the Doctrine from federal common law because it is barred by statute in Indiana. Specifically, the State asserts that our courts “cannot grant any form of credit against a sentence unless authorized by the General Assembly.” Appellee’s Brief at 14 (citing Hickman v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App. 2017) (“credit time is a statutory right”)). Because Temme was neither imprisoned nor confined following his erroneous early release, the State argues that he could not be accruing time toward his sentence. See Ind. Code § 35-50-6-0.5(1) (definition of “accrued time” as “the amount of time that a person is imprisoned or confined”).
Alternatively, the State suggests that if we adopt the Doctrine in Indiana, we consider the balancing test recently applied by the Fourth Circuit in United States v. Grant, 862 F.3d 417 (4th Cir. 2017).
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Although the balancing approach applied in Grant is appealing, we do not adopt it – or any other test set out above – as common law in this state because the award of credit time is covered by statute, and the type of credit sought in this case is not the type authorized by the General Assembly. Cf. State v. Friedlander, 923 N.W.2d 849, 863 n.12 (Wis. 2019) (“While it might be tempting to pick and choose a case from another jurisdiction to lend support for granting or not granting sentence credit, that exercise is of little value without also considering the facts and law underlying that decision. Instead of turning to other jurisdictions for guidance, we rely upon Wisconsin’s comprehensive sentence credit statutes, [among other things].”). Thus, we cannot look to equity to grant the relief requested by Temme based on the DOC’s simple negligence in releasing him early.
Our rejection of this equitable, common law doctrine does not, however, mean that an erroneously released prisoner in this state can never be entitled to credit for time erroneously at liberty. Federal substantive due process guarantees still remain applicable.
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In this case, Temme has not shown that the government’s actions were anything beyond mere negligence, and he has failed to expound on any substantive due process arguments based on waiver or estoppel. We find particularly notable here that the State discovered and attempted to rectify the DOC’s negligence within three weeks of Temme’s erroneous release. The circumstances of this case simply do not rise to the level of conduct “so affirmatively improper or grossly negligent” by the government as to rise to the level of a due process violation.
We sympathize with Temme’s plight and commend him on his effective reintegration into society. Indeed, by all accounts, Temme has been a hardworking, 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. Accordingly, we conclude that the trial court did not err in denying Temme’s Motion to Award Credit Time for Time Erroneously at Liberty.
Judgment affirmed.
May, J. and Robb, J., concur.