Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jul 21 2014, 9:12 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
ALVINO PIZANO GREGORY F. ZOELLER Hobart, Indiana Attorney General of Indiana
KRISTIN GARN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ALVINO PIZANO, ) ) Appellant-Petitioner, ) ) vs. ) No. 33A04-1402-MI-85 ) INDIANA ATTORNEY GENERAL ) GREGORY ZOELLER, et al., ) ) Appellees-Respondents. )
APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Kit Dean Crane, Judge Cause No. 33C02-1211-MI-138
July 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
In 2007, Appellant-Petitioner Alvino Pizano was convicted of Class B felony child
molesting and Class D felony neglect of a dependent. He was sentenced to an aggregate term
of ten years of incarceration in the Department of Correction (“DOC”). On November 20,
2012, Pizano filed an action against Appellees-Respondents Indiana Attorney General
Gregory Zoeller, DOC Commissioner Bruce Lemmons, DOC Director of Education John
Nally, and NCCF1 Superintendent Keith Butts (collectively, the “State”) claiming that he was
entitled to credit time for earning a bachelor’s degree from Ball State University while
incarcerated. On February 7, 2014, the trial court determined that Pizano had been awarded
the credit time to which he was entitled for earning his bachelor’s degree and dismissed
Pizano’s action as moot. On appeal, Pizano contends that the trial court erred in dismissing
his action. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2007, Pizano was convicted of Class B felony child molesting and Class D felony
neglect of a dependent. Pizano v. Zoeller, et al., 33A01-1302-MI-65 *1 (Ind. Ct. App. May
31, 2013) (“Pizano I”). On April 27, 2007, he was sentenced to an aggregate term of ten
years. Id. Pizano was released to parole on May 26, 2010. Id. In April of 2012, the State
issued a notice of parole violation. Id. Pizano was returned to the DOC on May 29, 2012.
Id.
On November 20, 2012, Pizano filed a document entitled “Petition for Writ of Habeas
1 While not clear from the record, it appears that NCCF refers to the New Castle Correctional Facility. See http://www.in.gov/idoc/2406.htm (last visited June 30, 2014).
2 Corpus Relief” with the trial court.2 Appellant’s App. p. 6. In this document, Pizano asserted
that the State had erroneously denied him credit time after he earned a bachelor’s degree
from Ball State University. Pizano I, 33A01-1302-MI-65 *3. The trial court summarily
denied Pizano’s request for relief. Id. at *1. Pizano appealed. On appeal, this court
concluded that the trial court erred in summarily denying Pizano’s request for relief, finding
that a genuine issue of material fact remained as to whether Pizano met his burden of proving
that he had earned a bachelor’s degree during his period of incarceration. Id. at *3. This
court remanded the matter to the trial court for a hearing on whether Pizano had proved that
he earned the degree in question. Id.
On January 16, 2014, Pizano submitted documents to the trial court in support of his
request for relief.3 The trial court scheduled a hearing on Pizano’s request for February 10,
2014. On February 6, 2014, in preparation for the hearing, the DOC reviewed the documents
submitted by Pizano, determined that Pizano had provided sufficient information to
demonstrate that he completed the requirements of the bachelor degree program, and
awarded Pizano credit time for earning said degree. The next day, on February 7, 2014, the
State filed a motion to dismiss the action, claiming that Pizano’s claim was moot as he had
been awarded the credit time to which he was entitled for earning his bachelor’s degree.
After reviewing the State’s motion, the trial court determined that Pizano had been
2 As this court noted in Pizano I, the trial court correctly treated Pizano’s filing as a petition for post- conviction relief rather than a writ for habeas corpus. See Pizano I, 33A01-1302-MI-65 *2 (citing Taylor v. Finnan, 955 N.E.2d 785, 789 (Ind. Ct. App. 2011) (citing to Hawkins v. Jenkins, 268 Ind. 137, 140-41, 374 N.E.2d 496, 498-99 (1978) for the proposition that when a person is not entitled to immediate release, a sentence challenge is properly considered one for post-conviction relief and not habeas corpus)).
3 We note that our review of the instant matter is somewhat hampered by Pizano’s failure to include a
3 awarded all credit time to which he was entitled and dismissed the action as moot. The trial
court then vacated the order setting the February 10, 2014 hearing. This appeal follows.
DISCUSSION AND DECISION
On appeal, Pizano contends that the trial court erred in dismissing his action seeking
an award of credit time. For its part, the State argues that the trial court did not err in
dismissing the action.
I. Dismissal of an Action as Moot
The long-standing rule in Indiana courts has been that a case is deemed moot when no effective relief can be rendered to the parties before the court. When the concrete controversy at issue in a case “has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved,” the case will be dismissed. Dunn v. State (1904), 163 Ind. 317, 321, 71 N.E. 890, 894. While Article III of the United States Constitution limits the jurisdiction of federal courts to actual cases and controversies, the Indiana Constitution does not contain any similar restraint. Thus, although moot cases are usually dismissed, Indiana courts have long recognized that a case may be decided on its merits under an exception to the general rule when the case involves questions of “great public interest.” See, e.g., Indiana Educ. Employment Relations Bd. v. Mill Creek Classroom Teachers Ass’n (1983), Ind., 456 N.E.2d 709, 711-12; State ex rel. Smitherman v. Davis (1958), 238 Ind. 563, 151 N.E.2d 495; State ex rel. Gregory v. Boyd (1909), 172 Ind. 196, 87 N.E. 140. Cases found to fall within the public interest exception typically contain issues likely to recur.
Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). A further exception may be applicable
“where leaving the judgment undisturbed might lead to negative collateral consequences.”
Roark v. Roark, 551 N.E.2d 865, 867 (Ind. Ct. App. 1990).
Pizano does not argue on appeal that either of the above-stated exceptions are
applicable to the instant matter. This matter involves issues unique to Pizano that are not
copy of his petition for relief as well as copies of the supporting documents in his appendix on appeal. 4 likely to reoccur as he is no longer incarcerated, and Pizano has not identified any potential
negative collateral consequences. As such, the trial court’s dismissal of the action as moot is
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jul 21 2014, 9:12 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
ALVINO PIZANO GREGORY F. ZOELLER Hobart, Indiana Attorney General of Indiana
KRISTIN GARN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ALVINO PIZANO, ) ) Appellant-Petitioner, ) ) vs. ) No. 33A04-1402-MI-85 ) INDIANA ATTORNEY GENERAL ) GREGORY ZOELLER, et al., ) ) Appellees-Respondents. )
APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Kit Dean Crane, Judge Cause No. 33C02-1211-MI-138
July 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
In 2007, Appellant-Petitioner Alvino Pizano was convicted of Class B felony child
molesting and Class D felony neglect of a dependent. He was sentenced to an aggregate term
of ten years of incarceration in the Department of Correction (“DOC”). On November 20,
2012, Pizano filed an action against Appellees-Respondents Indiana Attorney General
Gregory Zoeller, DOC Commissioner Bruce Lemmons, DOC Director of Education John
Nally, and NCCF1 Superintendent Keith Butts (collectively, the “State”) claiming that he was
entitled to credit time for earning a bachelor’s degree from Ball State University while
incarcerated. On February 7, 2014, the trial court determined that Pizano had been awarded
the credit time to which he was entitled for earning his bachelor’s degree and dismissed
Pizano’s action as moot. On appeal, Pizano contends that the trial court erred in dismissing
his action. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2007, Pizano was convicted of Class B felony child molesting and Class D felony
neglect of a dependent. Pizano v. Zoeller, et al., 33A01-1302-MI-65 *1 (Ind. Ct. App. May
31, 2013) (“Pizano I”). On April 27, 2007, he was sentenced to an aggregate term of ten
years. Id. Pizano was released to parole on May 26, 2010. Id. In April of 2012, the State
issued a notice of parole violation. Id. Pizano was returned to the DOC on May 29, 2012.
Id.
On November 20, 2012, Pizano filed a document entitled “Petition for Writ of Habeas
1 While not clear from the record, it appears that NCCF refers to the New Castle Correctional Facility. See http://www.in.gov/idoc/2406.htm (last visited June 30, 2014).
2 Corpus Relief” with the trial court.2 Appellant’s App. p. 6. In this document, Pizano asserted
that the State had erroneously denied him credit time after he earned a bachelor’s degree
from Ball State University. Pizano I, 33A01-1302-MI-65 *3. The trial court summarily
denied Pizano’s request for relief. Id. at *1. Pizano appealed. On appeal, this court
concluded that the trial court erred in summarily denying Pizano’s request for relief, finding
that a genuine issue of material fact remained as to whether Pizano met his burden of proving
that he had earned a bachelor’s degree during his period of incarceration. Id. at *3. This
court remanded the matter to the trial court for a hearing on whether Pizano had proved that
he earned the degree in question. Id.
On January 16, 2014, Pizano submitted documents to the trial court in support of his
request for relief.3 The trial court scheduled a hearing on Pizano’s request for February 10,
2014. On February 6, 2014, in preparation for the hearing, the DOC reviewed the documents
submitted by Pizano, determined that Pizano had provided sufficient information to
demonstrate that he completed the requirements of the bachelor degree program, and
awarded Pizano credit time for earning said degree. The next day, on February 7, 2014, the
State filed a motion to dismiss the action, claiming that Pizano’s claim was moot as he had
been awarded the credit time to which he was entitled for earning his bachelor’s degree.
After reviewing the State’s motion, the trial court determined that Pizano had been
2 As this court noted in Pizano I, the trial court correctly treated Pizano’s filing as a petition for post- conviction relief rather than a writ for habeas corpus. See Pizano I, 33A01-1302-MI-65 *2 (citing Taylor v. Finnan, 955 N.E.2d 785, 789 (Ind. Ct. App. 2011) (citing to Hawkins v. Jenkins, 268 Ind. 137, 140-41, 374 N.E.2d 496, 498-99 (1978) for the proposition that when a person is not entitled to immediate release, a sentence challenge is properly considered one for post-conviction relief and not habeas corpus)).
3 We note that our review of the instant matter is somewhat hampered by Pizano’s failure to include a
3 awarded all credit time to which he was entitled and dismissed the action as moot. The trial
court then vacated the order setting the February 10, 2014 hearing. This appeal follows.
DISCUSSION AND DECISION
On appeal, Pizano contends that the trial court erred in dismissing his action seeking
an award of credit time. For its part, the State argues that the trial court did not err in
dismissing the action.
I. Dismissal of an Action as Moot
The long-standing rule in Indiana courts has been that a case is deemed moot when no effective relief can be rendered to the parties before the court. When the concrete controversy at issue in a case “has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved,” the case will be dismissed. Dunn v. State (1904), 163 Ind. 317, 321, 71 N.E. 890, 894. While Article III of the United States Constitution limits the jurisdiction of federal courts to actual cases and controversies, the Indiana Constitution does not contain any similar restraint. Thus, although moot cases are usually dismissed, Indiana courts have long recognized that a case may be decided on its merits under an exception to the general rule when the case involves questions of “great public interest.” See, e.g., Indiana Educ. Employment Relations Bd. v. Mill Creek Classroom Teachers Ass’n (1983), Ind., 456 N.E.2d 709, 711-12; State ex rel. Smitherman v. Davis (1958), 238 Ind. 563, 151 N.E.2d 495; State ex rel. Gregory v. Boyd (1909), 172 Ind. 196, 87 N.E. 140. Cases found to fall within the public interest exception typically contain issues likely to recur.
Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). A further exception may be applicable
“where leaving the judgment undisturbed might lead to negative collateral consequences.”
Roark v. Roark, 551 N.E.2d 865, 867 (Ind. Ct. App. 1990).
Pizano does not argue on appeal that either of the above-stated exceptions are
applicable to the instant matter. This matter involves issues unique to Pizano that are not
copy of his petition for relief as well as copies of the supporting documents in his appendix on appeal. 4 likely to reoccur as he is no longer incarcerated, and Pizano has not identified any potential
negative collateral consequences. As such, the trial court’s dismissal of the action as moot is
proper if the issues raised have been disposed of in a manner so as to render further
proceedings unnecessary. See Matter of Lawrance, 579 N.E.2d at 37.
II. Whether Dismissal of Pizano’s Action was Appropriate
It is important to note that Pizano does not challenge the amount of credit time that he
was ultimately awarded for completion of his bachelor’s degree. Instead, Pizano seems to
argue that he should be given credit for the number of days he remained incarcerated after the
initial denial of his request for credit time and that the trial court erroneously disobeyed an
order from this court that it conduct a hearing on the matter. We disagree.
In claiming that the trial court erred in dismissing his action, Pizano argues that he
should have had 496 days subtracted from his maximum parole release date because of the
State’s initial denial of his request for credit time. Pizano, however, does not cite to any
relevant authority in support of this claim. Pizano has also failed to establish on appeal that
the initial denial of credit time was improper. Review of the record demonstrates that Pizano
filed additional exhibits relating to his request for credit time on January 16, 2014. The State
reviewed these documents, determined that Pizano had met his burden of proving that he had
earned his bachelor’s degree, and awarded Pizano the applicable credit time within one
month of Pizano’s additional filing.
In light of the State’s seemingly quick action after reviewing the additional documents
filed by Pizano, it is reasonable to assume that the additional documents filed by Pizano
5 contained the necessary documentation proving that Pizano had earned his bachelor’s degree,
and that these documents were not included in the documents filed at the time of his initial
request. Furthermore, because the State has awarded Pizano credit time for earning his
degree and Pizano has since been released from incarceration, the trial court properly
determined that the matter was moot as Pizano had been granted all possible relief.4 The trial
court did not err in vacating the scheduled hearing and dismissing the action as moot.
Pizano also argues that the trial court erred by failing to conduct a hearing in the
instant matter pursuant to this court’s opinion in Pizano I. A reading of Pizano I indicates
that this court remanded the matter to the trial court for a hearing during which the court
should determine whether Pizano had met his burden of proving that he had earned his
bachelor’s degree. See Pizano I, 33A01-1302-MI-65 *3. Because the State determined that
Pizano had met this burden and accordingly awarded him credit time before the scheduled
hearing, we agree with the trial court’s determination that it was no longer necessary to
conduct a hearing on this question.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
4 Furthermore, we note that even if it were determined that Pizano was erroneously denied credit time following his initial request, Pizano points to no authority that would support his claim that he should be entitled to financial compensation from the State as a result of the denial of credit time.