Asylee not entitled to state credit for time served under federal authority, COA rules

A would-be asylee convicted of a state sex crime was not entitled to credit for time he served in a county jail at the request of the federal government pending his state sentencing, the Indiana Court of Appeals has ruled.

In Reynaldo Ernesto Alvarez v. State of Indiana, 19A-CR-1906, Reynaldo Alvarez was charged in October 2018 with two counts of Level 3 felony rape. At the time, Alvarez, a citizen of El Salvador seeking political asylum in the United States, was under a U.S. Immigration and Customs Enforcement “hold.”

Alvarez was arrested on Oct. 9, 2018, and posted bond Oct. 27. But before his December 2018 pretrial conference, he was placed in federal custody and taken to Illinois.

Alvarez was transported back to Indiana on the state’s request for a Jan. 8, 2019, pretrial hearing. At the hearing, he was remanded to the Hamilton County Jail “pursuant to a hold by the Department of Homeland Security, to remain in the Hamilton County jail on that hold until further request from the Department of Homeland Security.”

Alvarez pleaded guilty to one count of Level 6 felony sexual battery on May 17, 2019. He was sentenced one month later to 2 ½ years in the Indiana Department of Correction, with no credit for the time served in jail from January 2019 to his sentencing. Instead, he was given credit for the time served prior to posting bond.

After the denial of his motion to correct error, Alvarez appealed, claiming a sentencing error on the issue of credit time. But the Court of Appeals disagreed, with Judge Terry Crone relying on Sweeney v. State, 704 N.E.2d 86, 109 (Ind. 1998), cert. denied (1999).

“… (A)s in this case, the defendant in Sweeney was being detained at the behest of federal authorities when he was brought back to Indiana to face pending criminal charges,” Crone wrote Wednesday. “The trial court determined that because the defendant was incarcerated for other reasons by federal authorities, he was not entitled to credit for the time served in Indiana against his Indiana sentence. Our supreme court affirmed that decision… .”

Similarly, Crone continued, the Sweeney court relied on Smith v. State, 165 Ind. App. 37, 330 N.E.2d 384, 388 (Ind. Ct. App. 1975), where, like here, the defendant was incarcerated in federal prison while out on bail for a state charge. The Smith defendant likewise was not entitled to credit, Crone said.

“As with the defendants in Sweeney and Smith, Alvarez’s pretrial confinement in the Hamilton County Jail was not a result of the criminal charges for which the trial court here was imposing sentence,” the appellate judge wrote. “In other words, Alvarez was not subject to pretrial/presentence confinement based upon the Indiana charges for which he had already posted bond and been released.

“Rather, Alvarez was in custody with the permission and on behalf of the federal authorities who transported him to Indiana to face the current charges,” he continued. “Accordingly, Alvarez was not entitled to credit for the time served after he was returned to Indiana awaiting conviction and sentencing.”

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