Brad S. Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 17, 2018
• Docket: 90A04-1711-CR-2670
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 17 2018, 9:10 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeremy K. Nix Curtis T. Hill, Jr. Huntington, Indiana Attorney General of Indiana

Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brad S. Brown, April 17, 2018 Appellant-Defendant, Court of Appeals Case No. 90A04-1711-CR-2670 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff. Kiracofe, Judge Trial Court Cause No. 90C01-1708-PC-5 90C01-1205-FD-34

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 1 of 6 Statement of the Case [1] Brad S. Brown appeals the post-conviction court’s denial of his petition for post-

conviction relief. He presents a single dispositive issue for our review, namely,

whether the post-conviction court erred when it summarily dismissed his

petition. We reverse and remand for further proceedings.

Facts and Procedural History [2] In April 2013, a jury found Brown guilty of two counts of robbery, one as a

Class B felony and the other as a Class C felony, and domestic battery, as a

Class D felony. The trial court entered judgment of conviction accordingly and

sentenced Brown to an aggregate term of twelve years in the Department of

Correction (“DOC”).

[3] On July 31, 2017, Brown filed a motion for additional credit time based on his

educational achievements, as well as having “successfully completed the hours

required for career, technical[,] and vocational education programs in his jobs

and in career development training.” Appellant’s App. Vol. II at 5. Attached

to his motion, Brown submitted the affidavit of “D. Walter-Cook”1 who stated

that Brown had “successfully completed the hours for department of labor

apprenticeships not offered at his current facility.” Id. at 6. On August 7, the

1 The affidavit does not state who Walter-Cook is or whether he is affiliated with the prison where Brown is incarcerated.

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 2 of 6 post-conviction court issued an order stating that Brown’s motion would be

treated as a petition for post-conviction relief.

[4] On September 21, the State filed its response to Brown’s post-conviction

petition and moved for summary disposition. In that response, the State alleged

that Brown was not entitled to additional credit time in that “Brown’s petition

request[ed] credit for an office management program that is not offered at his

current facility, meaning that this program is not approved by the Department

of Correction for inmates at his location.” Id. at 15. And the State submitted

the affidavit of Jennifer Farmer, the Program Director of the DOC’s Sentence

Computation/Release Unit. Farmer’s affidavit states in relevant part as

follows:

5. The following is a list of programs for which Brad Brown has already received credit time on his current sentence, as well as a statement of time applied:

a. Substance Abuse 2, 3.1, 3.2, and 3.3, 180 days applied.

b. PEN Career Development Training, 90 days applied.

6. In total Brad Brown has received 270 days of credit time for the successful completion of classes offered at his facility. This represents all of the time for which Brad Brown was eligible to receive credit, and has submitted for approval.

7. Any High School Diploma and Associates Degree possessed by Brad Brown was not earned while he was incarcerated with

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 3 of 6 the IDOC, making him ineligible for credit time for these attainments.

8. A limited number of vocational courses are offered at [his facility] and other low security facilities due to the relatively short period of incarceration for these offenders, and due to the availability of work release programs.

9. The office management class that Brad Brown mentions in his petition is not offered, and is therefore not approved by IDOC at his present facility. . . . This means that Brad Brown is ineligible to receive credit time for the office management class despite any alleged work or training he may have completed in connection with his past or present employment as kitchen trustee, sanitation worker, re-entry computer clerk, and tutor/lay advocate on the Disciplinary Hearing Board.

10. Furthermore, Brad Brown was either not enrolled in, or had not completed, any other vocational class or apprenticeships that would make him eligible to receive credit time for any alleged work or training he may have completed in connection with his past or present employment as kitchen trustee, sanitation worker, re-entry computer clerk, and tutor/lay advocate on the Disciplinary Hearing Board.

11. Mere employment while incarcerated is not approved by IDOC as a cut-time program.

Id. at 18-19.

[5] On October 6, Brown filed a motion for a hearing on his post-conviction

petition in part to “present additional evidence.” Id. at 25. On October 13, the

post-conviction court denied Brown’s motion for a hearing, granted the State’s

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 4 of 6 motion for summary disposition, and denied Brown’s petition for post-

conviction relief. This appeal ensued.

Discussion and Decision [6] Brown appeals the post-conviction court’s summary disposition of his petition

for post-conviction relief. As our supreme court has explained:

An appellate court reviews the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a motion for summary judgment. Thus summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact.

Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted). In

summary judgment proceedings, the moving party (here, the State) is the party

that bears the burden to demonstrate that there is no genuine issue of material

fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15

N.E.3d 1000, 1003-04 (Ind. 2014). However, a trial court’s grant of summary

judgment is clothed with a presumption of validity, and the party who lost in

the trial court (here, Brown) has the burden of demonstrating that the grant of

summary judgment was erroneous. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

1167, 1173 (Ind. Ct. App. 2012), trans. denied.

[7] In his brief on appeal, Brown contends in relevant part that the post-conviction

court erred when it “granted the State’s motion for summary disposition

without providing Brown an opportunity to submit additional evidence.”

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 5 of 6 Appellant’s Br. at 8. Indeed, the post-conviction court granted the State’s

motion and entered judgment before the time for Brown’s response to the

State’s motion had expired.2 Again, the State filed its motion for summary

disposition on September 21, 2017, and, under Trial Rule 56(C), Brown had

thirty days after service of that motion to serve a response and any opposing

affidavits. See State v. Gonzalez-Vazquez, 984 N.E.2d 704, 709 (Ind. Ct. App.

2013) (“declin[ing] the State’s invitation to hold that it is relieved of the time

constraints of Trial Rule 56”), trans. denied. Thus, Brown’s response was due on

or about October 23. We agree with Brown that the post-conviction court erred

when it entered its Order Granting Summary Disposition on October 13.

Accordingly, we reverse and remand for further proceedings not inconsistent

with this opinion.

[8] Reversed and remanded for further proceedings.

Robb, J., and Altice, J., concur.

2 Inexplicably, the State claims that Brown was the moving party, “and therefore the State, and not [Brown], had 30 days in which to respond. See Ind. Trial Rule 56(C).” Appellee’s Br. at 13. The record is clear that the State moved for summary disposition and was, therefore, the moving party.

Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018 Page 6 of 6