Jordan Allen Temme v. State of Indiana

Evansville, Indiana - Criminal defense lawyer represented defendant Jordan Allen Temme charged with two counts of Level 1 felony rape (Counts 1 and 2) and one count of Level 3 felony criminal confinement.

[5] In June 2016, the State charged Temme under the instant cause, No. 82D03-

1606-F1-3715 (Cause F1-3715), with two counts of Level 1 felony rape (Counts

1 and 2) and one count of Level 3 felony criminal confinement (Count 3). The

next month, the State amended the criminal information and added one count

of Level 6 felony unlawful possession of a syringe (Count 4) and five counts of

Class A misdemeanor possession of a controlled substance (Counts 5-9). The

State amended the information once again in November 2017 by adding one

count each of Class A misdemeanor operating while intoxicated (Count 10),

Class A misdemeanor battery (Count 11), and Class B misdemeanor public

intoxication (Count 12).

[6] Temme remained in jail since June 24, 2016, unable to post bond. In the

meantime, the State filed a separate criminal action against Temme in

September 2017, under cause No. 82D03-1709-F6-5758 (Cause F6-5758), for

attempted obstruction of justice, a Level 6 felony.

1 We conducted a virtual oral argument in this case on September 22, 2020. We thank counsel for their

excellent advocacy and presentations.

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[7] On November 17, 2017, Temme and the State reached an agreement pursuant

to which the State agreed to dismiss Counts 1 through 3 and Temme agreed to

plead guilty to the remaining nine counts under Cause F1-3715 and the one

count in Cause F6-5758. The plea agreement also provided for a total executed

sentence of nine years.

[8] On December 20, 2017, the trial court sentenced Temme and applied credit

time for his pretrial confinement as follows:

Count 4 2.5 years executed 1 day credit

Count 5 1 year executed

Count 6 1 year 180 days

executed

Count 7 1 year suspended

Count 8 1 year suspended

Count 9 1 year suspended

Count 10 1 year time served 180 days credit

Count 11 1 year time served 180 days credit

Count 12 ½ year time served 90 days credit

Cause F6-5758 2.5 years executed 90 days credit

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All terms were ordered to be served consecutively. Thus, Temme received an

aggregate sentence of twelve and one-half years, with three and one-half of

those years suspended (nine executed) and credit for 541 days. With respect to

Cause F1-3715, the trial court expressly indicated that one day of credit time

went toward the felony conviction and 450 days of credit time went toward the

misdemeanor convictions under Counts 10 through 12.

[9] Temme’s credit status and time yet to be served were calculated by the DOC

upon his arrival at the Reception and Diagnostic Center (RDC). The intake

staff incorrectly applied the misdemeanor credit time of 450 days toward his

felony sentences. As a result, he was erroneously released from prison on

October 4, 2018, to the custody of the Vanderburgh County Jail2 to serve his

misdemeanor sentences. He was also released from parole. The jail staff then

applied the same 450 days of credit to the service of his misdemeanor sentences.

Temme was released from jail on July 4, 2019, having served essentially no

time for his felony conviction under F1-3715 (the time he did serve in prison

completed his felony sentence under F6-5758).

[10] On July 25, 2019, three weeks after Temme’s release from jail, the State filed a

Motion Requesting the Court to Re-examine Defendant’s Credit Time. The

trial court held a hearing on the State’s motion on September 6 and October 1,

2019. On the second day of the hearing, Jennifer Farmer, Director of the

2

For part of the time, Temme was placed at the Jefferson County Jail due to overcrowding.

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Sentence Computation and Release Section of the DOC, testified. Farmer

explained the DOC error, which resulted in Temme’s early release, and noted

that the mistake was missed at every level within the DOC. She also

acknowledged that Temme did not contribute to the error and had no conduct

marks against him.

[11] Temme testified that when he checked his projected release date in February

2019 and was told it would be in July 2019, he “knew that wasn’t correct.”

Transcript at 28. He and his sister contacted the jail and the RDC to “get

answers” and were assured the release date was correct. Id. Temme also

contacted his attorney about the matter and then “kinda left it as that.” Id.

Upon his early release in July 2019, Temme moved in with his parents and

immediately returned to work as a pipefitter with his prior employer.

[12] At the end of the hearing on October 1, 2019, the trial court took the matter

under advisement and gave the parties ten days to submit legal authority, which

they did. Thereafter, on November 11, 2019, the trial court held a pretrial

conference and scheduled a review hearing for January 6, 2020.

[13] On January 3, 2020, Temme filed a Motion to Award Credit Time for Time

Erroneously at Liberty, Motion for Remainder of Executed Sentence to be

Served in Community Corrections, and Motion to Modify Sentence to

Community Corrections. At the hearing on January 6, 2020, the trial court

denied the motions filed by Temme and ordered him back to the DOC to

complete his sentence. The trial court stayed the order pending appeal and

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directed Temme to be monitored by the Vanderburgh County Probation

Department during his release. Temme now appeals, challenging only the

denial of his Motion to Award Credit Time for Time Erroneously at Liberty.

Discussion & Decision

[14] 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.

[15] 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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[16] The Doctrine’s origin can be traced to White v. Pearlman, 42 F.2d 788 (10th Cir.

1930). In that case, the prisoner had been released through no fault of his own

and was “brushed aside” when he attempted to call attention to the mistake. Id.

at 789. The Tenth Circuit held that “where a prisoner is discharged from a

penal institution, without any contributing fault on his part, and without

violation of conditions of parole, [ ] his sentence continues to run while he is at

liberty.” Id.

[17] While courts vary in their interpretation and application of the Doctrine,

adopting courts “generally agree upon the ‘power of the government to

recommit a prisoner who is released or discharged by mistake, where his

sentence would not have expired if he had remained in confinement.’” Vega v.

United States, 493 F.3d 310, 315 (3d Cir. 2007) (quoting Pearlman, 42 F.2d at

789); see also Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984) (“A

ministerial mistake does not necessarily excuse Green from serving the rest of

his sentence.”). “In other words, a mistaken release does not prevent a

government from reincarcerating a prisoner who has time to serve. The

question is whether he should be given credit against his sentence for the time

he was at liberty.” Vega, 493 F.3d at 316.

[18] The prevailing federal common law rule is based on the following reasoning, as

expressed by Judge Posner:

[U]nless interrupted by fault of the prisoner (an escape, for

example) a prison sentence runs continuously from the date on

which the defendant surrenders to begin serving it. The

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government is not permitted to delay the expiration of the

sentence either by postponing the commencement of the sentence

or by releasing the prisoner for a time and then reimprisoning

him. United States v. Melody, 863 F.2d 499, 504 (7th Cir. 1988);

Cox v. United States, [] 551 F.2d [1096,] 1099 [(7th Cir. 1977)];

Shields v. Beto, 370 F.2d 1003, 1006 (5th Cir. 1967); White v.

Pearlman, 42 F.2d 788 (10th Cir. 1930); Ex parte Eley, 9 Okl.Cr.

76, 130 Pac. 821 (App. 1913); In re Strickler, 51 Kan. 700, 33 Pac.

620 (1893). 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 expiation of his debt to society

and his reintegration into the free community. Punishment on

the installment plan is forbidden.

Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994). “[T]he core principle upon

which the doctrine rests [is that] the government is not permitted to delay the

expiration of a prisoner’s sentence.” Winkler, supra, 35 N.C. Cent. L. Rev. at

17.

[19] The Ninth Circuit has explained that under the Doctrine, “a convicted person is

entitled to credit against his sentence for the time he was erroneously at liberty

provided there is a showing of simple or mere negligence on behalf of the

government and provided the delay in execution of sentence was through no

fault of his own.” United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988);

see also Vega, 493 F.3d at 319 (placing burden on the government to avoid

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application of the Doctrine by proving either “(1) that there was no negligence

on the part of the imprisoning sovereign, or (2) that the prisoner obtained or

retained his liberty through his own efforts”). This is essentially the test

advanced by Temme for our adoption.

[20] 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”).

[21] 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). In Grant, the court set out the

background of federal jurisprudence since Pearlman:

Since then, several of our sister circuits have also recognized, at

least to some degree and in some circumstances, a federal

common law right to credit for time erroneously spent at liberty.

See Espinoza v. Sabol, 558 F.3d 83, 88-89 (1st Cir. 2009); Vega v.

United States, 493 F.3d 310, 318 (3d Cir. 2007); Free v. Miles, 333

F.3d 550, 554 (5th Cir. 2003); Dunne v. Keohane, 14 F.3d 335,

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336–37 (7th Cir. 1994); Kiendra v. Hadden, 763 F.2d 69, 72-73 (2d

Cir. 1985); United States v. Croft, 450 F.2d 1094, 1097 (6th Cir.

1971); Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937). In these

cases, the courts, regardless of the precise framework used to

determine a prisoner’s entitlement to credit, universally apply

two principles. First, a prisoner may not receive credit if he had

a role in creating his premature release. Second, a prisoner has a

right to credit if the Government maliciously caused his

premature release.

Fashioning the appropriate approach in a case, like the one at

hand, involving neither of these scenarios has proved more

difficult. Some courts will not award credit unless the

Government acted maliciously. The Fifth Circuit, for example,

has characterized the “sole purpose” of granting credit for time at

liberty as “prevent[ing] the government from abusing its coercive

power to imprison a person by artificially extending the duration

of his sentence through releases and re-incarcerations.” Free, 333

F.3d at 554. Similarly, the Seventh Circuit has described “the

core area of [the common law rule’s] application” as occasions in

which “the government is trying to delay the expiration of the

defendant’s sentence.” Dunne, 14 F.3d at 336-37.

On the other hand, some courts award credit whenever the

Government errs, even if it was merely negligent. Thus, the

Ninth Circuit has promulgated a categorical rule awarding credit

whenever the Government mistakenly releases a prisoner. See

Swope, 91 F.2d at 262 (“The prisoner ... must be deemed to be

serving [his time] from the date he is ordered to serve it ... if,

without his fault, the marshal neglects to place him in the proper

custody.”). Similarly, although the Second, Sixth, and Tenth

Circuits have engaged in a detailed, fact-bound discussion before

awarding credit, each appears to anchor its analysis in a similar

categorical rule. See Kiendra, 763 F.2d at 72-73 (following

Swope); Croft, 450 F.2d at 1099 (same); [Pearlman], 42 F.2d at

789.

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The Third Circuit has formulated its own approach. In Vega,

that court adopted a burden-shifting framework to decide

whether to award credit. Under it, the prisoner bears the initial

burden of “demonstrat[ing] that he has been released despite

having unserved time remaining on his sentence.” Vega, 493

F.3d at 319. If the prisoner does so, the burden then shifts to the

Government, which must “prove either (1) that there was no

negligence on the part of the imprisoning sovereign, or (2) that

the prisoner obtained or retained his liberty through his own

efforts.” Id.

Grant, 862 F.3d at 420 (footnote omitted).

[22] The Vega court indicated that the Doctrine serves “the prisoner’s interest in

serving his sentence in a continuous and timely manner, the need to limit the

arbitrary use of governmental power, and the government’s and society’s

interest in making sure a prisoner pays the debt he owes to society.” Vega, 493

F.3d at 319. The Grant court added to this list: “Awarding credit also

implicates a prisoner’s interest in reintegrating into the community, the

Government’s interest in incentivizing prisoners to self-report any erroneous

release, and society’s general interest in achieving a balance of equities.” Grant,

862 F.3d at 421. The Grant court emphasized that “the award of such relief

must attempt to accommodate all these interests” and faulted the Vega court for

unduly prioritizing one interest, deterring the government from erroneously

releasing prisoners early. Id.

[23] Ultimately, the Grant court balanced the various interests implicated in a

decision to award credit for time erroneously spent at liberty as follows:

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That Grant’s underlying conviction and underlying supervised

probation violation involved nonviolent drug offenses, and that

Grant proactively brought his erroneous release to the

Government’s attention support his plea for credit. But a number

of other interests support the district court’s denial of credit.

Grant seeks ten days of credit for a fifteen-day sentence; he has

paid only one-third of his debt to society. Given that the

magistrate judge allowed Grant to serve this ten-day period “on

weekends or other days” to accommodate his employment

schedule, re-incarceration would (at most) only minimally hinder

Grant’s reintegration into society. Moreover, Grant’s ten days of

additional time in prison is by definition short enough to avoid

the disruption to a prisoner’s life that re-incarceration for a period

of months or years might pose. And finally, the Government’s

promptness in working to correct its mistake upon learning of its

error underscores the lack of any malice on its part.

Id. at 421-22 (internal citation omitted). The court affirmed the denial of relief

to Grant.

[24] 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.

3

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

3 See Ind. Code Chap. 35-50-6 (containing fourteen sections addressing release from imprisonment and/or

credit time).

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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.

[25] 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.4

Under these constitutional guarantees, an individual is

entitled to relief where the State’s actions “are so affirmatively improper or

grossly negligent that it would be unequivocally inconsistent with ‘fundamental

principles of liberty and justice’ to require a legal sentence to be served in its

aftermath.” See Martinez, 837 F.2d at 864 (failure to order the execution of

sentence for over seven years was not found to be so affirmatively wrong or

grossly negligent that fundamental fairness was violated); see also Vega, 493 F.3d

at 316 (noting that federal substantive due process challenges to government

action present “the threshold question [of] whether the behavior of the

governmental officer is so egregious, so outrageous, that it may fairly be said to

4 Decisions relying upon due process are distinct from the Doctrine and grant “absolute discharge, rather

than day-for-day credit, as a remedy for delay in commencing or continuing a sentence.” Chin, supra, 45

Cath. U. L. Rev. at 418. “These cases hold that the government has waived jurisdiction, or is estopped from

reincarcerating the defendant based on misconduct going beyond mere negligence.” Id.; see also Vega, 493

F.3d at 317(“We are … unable to conclude that credit for time spent at liberty is among those ‘fundamental

principles of liberty and justice which lie at the base of all our civil and political institutions.’”) (quoting

Powell v. Alabama, 287 U.S. 45, 67 (1932)).

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shock the contemporary conscience.”) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 847 n. 8, (1998)).

[26] 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.

[27] 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.5

5 Temme does not appeal the denial of his motions to modify sentence and to serve the remainder of his

sentence in community corrections. Therefore, we do not review these ruling. We observe, however, that

had the court ordered Temme to serve his time through community corrections rather than simply staying

execution of his sentence pending appeal, he could have been accruing time toward his sentence. Of course,

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[28] Court of Appeals of Indiana | Opinion 20A-CR-275 | October 20, 2020 Page 1 of 16

ATTORNEY FOR APPELLANT

Terry A. White

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jordan Allen Temme,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 20, 2020

Court of Appeals Case No.

20A-CR-275

Appeal from the Vanderburgh

Superior Court

The Honorable Robert J. Pigman,

Judge

Trial Court Cause No.

82D03-1606-F1-3715

Altice, Judge.

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Case Summary

[1] 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.

[2] 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.

[3] 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

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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.

[4] We affirm.1

Facts & Procedural History

[5] In June 2016, the State charged Temme under the instant cause, No. 82D03-

1606-F1-3715 (Cause F1-3715), with two counts of Level 1 felony rape (Counts

1 and 2) and one count of Level 3 felony criminal confinement (Count 3). The

next month, the State amended the criminal information and added one count

of Level 6 felony unlawful possession of a syringe (Count 4) and five counts of

Class A misdemeanor possession of a controlled substance (Counts 5-9). The

State amended the information once again in November 2017 by adding one

count each of Class A misdemeanor operating while intoxicated (Count 10),

Class A misdemeanor battery (Count 11), and Class B misdemeanor public

intoxication (Count 12).

[6] Temme remained in jail since June 24, 2016, unable to post bond. In the

meantime, the State filed a separate criminal action against Temme in

September 2017, under cause No. 82D03-1709-F6-5758 (Cause F6-5758), for

attempted obstruction of justice, a Level 6 felony.

1 We conducted a virtual oral argument in this case on September 22, 2020. We thank counsel for their

excellent advocacy and presentations.

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[7] On November 17, 2017, Temme and the State reached an agreement pursuant

to which the State agreed to dismiss Counts 1 through 3 and Temme agreed to

plead guilty to the remaining nine counts under Cause F1-3715 and the one

count in Cause F6-5758. The plea agreement also provided for a total executed

sentence of nine years.

[8] On December 20, 2017, the trial court sentenced Temme and applied credit

time for his pretrial confinement as follows:

Count 4 2.5 years executed 1 day credit

Count 5 1 year executed

Count 6 1 year 180 days

executed

Count 7 1 year suspended

Count 8 1 year suspended

Count 9 1 year suspended

Count 10 1 year time served 180 days credit

Count 11 1 year time served 180 days credit

Count 12 ½ year time served 90 days credit

Cause F6-5758 2.5 years executed 90 days credit

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All terms were ordered to be served consecutively. Thus, Temme received an

aggregate sentence of twelve and one-half years, with three and one-half of

those years suspended (nine executed) and credit for 541 days. With respect to

Cause F1-3715, the trial court expressly indicated that one day of credit time

went toward the felony conviction and 450 days of credit time went toward the

misdemeanor convictions under Counts 10 through 12.

[9] Temme’s credit status and time yet to be served were calculated by the DOC

upon his arrival at the Reception and Diagnostic Center (RDC). The intake

staff incorrectly applied the misdemeanor credit time of 450 days toward his

felony sentences. As a result, he was erroneously released from prison on

October 4, 2018, to the custody of the Vanderburgh County Jail2 to serve his

misdemeanor sentences. He was also released from parole. The jail staff then

applied the same 450 days of credit to the service of his misdemeanor sentences.

Temme was released from jail on July 4, 2019, having served essentially no

time for his felony conviction under F1-3715 (the time he did serve in prison

completed his felony sentence under F6-5758).

[10] On July 25, 2019, three weeks after Temme’s release from jail, the State filed a

Motion Requesting the Court to Re-examine Defendant’s Credit Time. The

trial court held a hearing on the State’s motion on September 6 and October 1,

2019. On the second day of the hearing, Jennifer Farmer, Director of the

2

For part of the time, Temme was placed at the Jefferson County Jail due to overcrowding.

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Sentence Computation and Release Section of the DOC, testified. Farmer

explained the DOC error, which resulted in Temme’s early release, and noted

that the mistake was missed at every level within the DOC. She also

acknowledged that Temme did not contribute to the error and had no conduct

marks against him.

[11] Temme testified that when he checked his projected release date in February

2019 and was told it would be in July 2019, he “knew that wasn’t correct.”

Transcript at 28. He and his sister contacted the jail and the RDC to “get

answers” and were assured the release date was correct. Id. Temme also

contacted his attorney about the matter and then “kinda left it as that.” Id.

Upon his early release in July 2019, Temme moved in with his parents and

immediately returned to work as a pipefitter with his prior employer.

[12] At the end of the hearing on October 1, 2019, the trial court took the matter

under advisement and gave the parties ten days to submit legal authority, which

they did. Thereafter, on November 11, 2019, the trial court held a pretrial

conference and scheduled a review hearing for January 6, 2020.

[13] On January 3, 2020, Temme filed a Motion to Award Credit Time for Time

Erroneously at Liberty, Motion for Remainder of Executed Sentence to be

Served in Community Corrections, and Motion to Modify Sentence to

Community Corrections. At the hearing on January 6, 2020, the trial court

denied the motions filed by Temme and ordered him back to the DOC to

complete his sentence. The trial court stayed the order pending appeal and

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directed Temme to be monitored by the Vanderburgh County Probation

Department during his release. Temme now appeals, challenging only the

denial of his Motion to Award Credit Time for Time Erroneously at Liberty.

Discussion & Decision

[14] 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.

[15] 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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[16] The Doctrine’s origin can be traced to White v. Pearlman, 42 F.2d 788 (10th Cir.

1930). In that case, the prisoner had been released through no fault of his own

and was “brushed aside” when he attempted to call attention to the mistake. Id.

at 789. The Tenth Circuit held that “where a prisoner is discharged from a

penal institution, without any contributing fault on his part, and without

violation of conditions of parole, [ ] his sentence continues to run while he is at

liberty.” Id.

[17] While courts vary in their interpretation and application of the Doctrine,

adopting courts “generally agree upon the ‘power of the government to

recommit a prisoner who is released or discharged by mistake, where his

sentence would not have expired if he had remained in confinement.’” Vega v.

United States, 493 F.3d 310, 315 (3d Cir. 2007) (quoting Pearlman, 42 F.2d at

789); see also Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984) (“A

ministerial mistake does not necessarily excuse Green from serving the rest of

his sentence.”). “In other words, a mistaken release does not prevent a

government from reincarcerating a prisoner who has time to serve. The

question is whether he should be given credit against his sentence for the time

he was at liberty.” Vega, 493 F.3d at 316.

[18] The prevailing federal common law rule is based on the following reasoning, as

expressed by Judge Posner:

[U]nless interrupted by fault of the prisoner (an escape, for

example) a prison sentence runs continuously from the date on

which the defendant surrenders to begin serving it. The

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government is not permitted to delay the expiration of the

sentence either by postponing the commencement of the sentence

or by releasing the prisoner for a time and then reimprisoning

him. United States v. Melody, 863 F.2d 499, 504 (7th Cir. 1988);

Cox v. United States, [] 551 F.2d [1096,] 1099 [(7th Cir. 1977)];

Shields v. Beto, 370 F.2d 1003, 1006 (5th Cir. 1967); White v.

Pearlman, 42 F.2d 788 (10th Cir. 1930); Ex parte Eley, 9 Okl.Cr.

76, 130 Pac. 821 (App. 1913); In re Strickler, 51 Kan. 700, 33 Pac.

620 (1893). 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 expiation of his debt to society

and his reintegration into the free community. Punishment on

the installment plan is forbidden.

Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994). “[T]he core principle upon

which the doctrine rests [is that] the government is not permitted to delay the

expiration of a prisoner’s sentence.” Winkler, supra, 35 N.C. Cent. L. Rev. at

17.

[19] The Ninth Circuit has explained that under the Doctrine, “a convicted person is

entitled to credit against his sentence for the time he was erroneously at liberty

provided there is a showing of simple or mere negligence on behalf of the

government and provided the delay in execution of sentence was through no

fault of his own.” United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988);

see also Vega, 493 F.3d at 319 (placing burden on the government to avoid

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application of the Doctrine by proving either “(1) that there was no negligence

on the part of the imprisoning sovereign, or (2) that the prisoner obtained or

retained his liberty through his own efforts”). This is essentially the test

advanced by Temme for our adoption.

[20] 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”).

[21] 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). In Grant, the court set out the

background of federal jurisprudence since Pearlman:

Since then, several of our sister circuits have also recognized, at

least to some degree and in some circumstances, a federal

common law right to credit for time erroneously spent at liberty.

See Espinoza v. Sabol, 558 F.3d 83, 88-89 (1st Cir. 2009); Vega v.

United States, 493 F.3d 310, 318 (3d Cir. 2007); Free v. Miles, 333

F.3d 550, 554 (5th Cir. 2003); Dunne v. Keohane, 14 F.3d 335,

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336–37 (7th Cir. 1994); Kiendra v. Hadden, 763 F.2d 69, 72-73 (2d

Cir. 1985); United States v. Croft, 450 F.2d 1094, 1097 (6th Cir.

1971); Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937). In these

cases, the courts, regardless of the precise framework used to

determine a prisoner’s entitlement to credit, universally apply

two principles. First, a prisoner may not receive credit if he had

a role in creating his premature release. Second, a prisoner has a

right to credit if the Government maliciously caused his

premature release.

Fashioning the appropriate approach in a case, like the one at

hand, involving neither of these scenarios has proved more

difficult. Some courts will not award credit unless the

Government acted maliciously. The Fifth Circuit, for example,

has characterized the “sole purpose” of granting credit for time at

liberty as “prevent[ing] the government from abusing its coercive

power to imprison a person by artificially extending the duration

of his sentence through releases and re-incarcerations.” Free, 333

F.3d at 554. Similarly, the Seventh Circuit has described “the

core area of [the common law rule’s] application” as occasions in

which “the government is trying to delay the expiration of the

defendant’s sentence.” Dunne, 14 F.3d at 336-37.

On the other hand, some courts award credit whenever the

Government errs, even if it was merely negligent. Thus, the

Ninth Circuit has promulgated a categorical rule awarding credit

whenever the Government mistakenly releases a prisoner. See

Swope, 91 F.2d at 262 (“The prisoner ... must be deemed to be

serving [his time] from the date he is ordered to serve it ... if,

without his fault, the marshal neglects to place him in the proper

custody.”). Similarly, although the Second, Sixth, and Tenth

Circuits have engaged in a detailed, fact-bound discussion before

awarding credit, each appears to anchor its analysis in a similar

categorical rule. See Kiendra, 763 F.2d at 72-73 (following

Swope); Croft, 450 F.2d at 1099 (same); [Pearlman], 42 F.2d at

789.

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The Third Circuit has formulated its own approach. In Vega,

that court adopted a burden-shifting framework to decide

whether to award credit. Under it, the prisoner bears the initial

burden of “demonstrat[ing] that he has been released despite

having unserved time remaining on his sentence.” Vega, 493

F.3d at 319. If the prisoner does so, the burden then shifts to the

Government, which must “prove either (1) that there was no

negligence on the part of the imprisoning sovereign, or (2) that

the prisoner obtained or retained his liberty through his own

efforts.” Id.

Grant, 862 F.3d at 420 (footnote omitted).

[22] The Vega court indicated that the Doctrine serves “the prisoner’s interest in

serving his sentence in a continuous and timely manner, the need to limit the

arbitrary use of governmental power, and the government’s and society’s

interest in making sure a prisoner pays the debt he owes to society.” Vega, 493

F.3d at 319. The Grant court added to this list: “Awarding credit also

implicates a prisoner’s interest in reintegrating into the community, the

Government’s interest in incentivizing prisoners to self-report any erroneous

release, and society’s general interest in achieving a balance of equities.” Grant,

862 F.3d at 421. The Grant court emphasized that “the award of such relief

must attempt to accommodate all these interests” and faulted the Vega court for

unduly prioritizing one interest, deterring the government from erroneously

releasing prisoners early. Id.

[23] Ultimately, the Grant court balanced the various interests implicated in a

decision to award credit for time erroneously spent at liberty as follows:

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That Grant’s underlying conviction and underlying supervised

probation violation involved nonviolent drug offenses, and that

Grant proactively brought his erroneous release to the

Government’s attention support his plea for credit. But a number

of other interests support the district court’s denial of credit.

Grant seeks ten days of credit for a fifteen-day sentence; he has

paid only one-third of his debt to society. Given that the

magistrate judge allowed Grant to serve this ten-day period “on

weekends or other days” to accommodate his employment

schedule, re-incarceration would (at most) only minimally hinder

Grant’s reintegration into society. Moreover, Grant’s ten days of

additional time in prison is by definition short enough to avoid

the disruption to a prisoner’s life that re-incarceration for a period

of months or years might pose. And finally, the Government’s

promptness in working to correct its mistake upon learning of its

error underscores the lack of any malice on its part.

Id. at 421-22 (internal citation omitted). The court affirmed the denial of relief

to Grant.

[24] 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.

3

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

3 See Ind. Code Chap. 35-50-6 (containing fourteen sections addressing release from imprisonment and/or

credit time).

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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.

[25] 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.4

Under these constitutional guarantees, an individual is

entitled to relief where the State’s actions “are so affirmatively improper or

grossly negligent that it would be unequivocally inconsistent with ‘fundamental

principles of liberty and justice’ to require a legal sentence to be served in its

aftermath.” See Martinez, 837 F.2d at 864 (failure to order the execution of

sentence for over seven years was not found to be so affirmatively wrong or

grossly negligent that fundamental fairness was violated); see also Vega, 493 F.3d

at 316 (noting that federal substantive due process challenges to government

action present “the threshold question [of] whether the behavior of the

governmental officer is so egregious, so outrageous, that it may fairly be said to

4 Decisions relying upon due process are distinct from the Doctrine and grant “absolute discharge, rather

than day-for-day credit, as a remedy for delay in commencing or continuing a sentence.” Chin, supra, 45

Cath. U. L. Rev. at 418. “These cases hold that the government has waived jurisdiction, or is estopped from

reincarcerating the defendant based on misconduct going beyond mere negligence.” Id.; see also Vega, 493

F.3d at 317(“We are … unable to conclude that credit for time spent at liberty is among those ‘fundamental

principles of liberty and justice which lie at the base of all our civil and political institutions.’”) (quoting

Powell v. Alabama, 287 U.S. 45, 67 (1932)).

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shock the contemporary conscience.”) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 847 n. 8, (1998)).

[26] 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.

[27] 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.5

5 Temme does not appeal the denial of his motions to modify sentence and to serve the remainder of his

sentence in community corrections. Therefore, we do not review these ruling. We observe, however, that

had the court ordered Temme to serve his time through community corrections rather than simply staying

execution of his sentence pending appeal, he could have been accruing time toward his sentence. Of course,

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Judgment affirmed.