Bruce Johnson-El v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), Jul 18 2013, 6:34 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

BRUCE JOHNSON-EL GREGORY F. ZOELLER New Castle, Indiana Attorney General of Indiana

ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

BRUCE JOHNSON-EL, ) ) Appellant-Petitioner, ) ) vs. ) No. 09A02-1302-CR-177 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard A. Maughmer, Judge Cause No. 09D02-0304-FB-20

July 18, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

Bruce Johnson-El (“Johnson-El”), appearing pro se, appeals the denial of his

verified petition for additional credit time in Cass Superior Court. Johnson-El argues that

the court wrongfully denied his request for additional credit time for completing his GED

while incarcerated. However, Johnson-El failed to serve the DOC with notice of his

claims in this case.

We therefore dismiss his appeal.

Facts and Procedural History

On April 23, 2003, Johnson-El was charged by Information with Class B felony

rape. On June 4, 2004, the State filed a second count of Class B felony rape against

Johnson-El. In a bench trial on March 23, 2006, the trial court granted Johnson-El’s

motion for judgment as a matter of law with respect to the second count, but found him

guilty on the first count of Class B felony rape. Johnson-El was sentenced on May 1,

2006 to twenty (20) years executed in the Indiana Department of Correction (“DOC”)

Johnson-El asserts that while he has been incarcerated, he participated in an

educational program in order to receive his GED on December 18, 2007. He contends

that under Indiana Code section 35-50-6-3.3, he is entitled to receive credit time of six

months for completing the degree. He further states that in March of 2010, he discovered

that he had not received additional credit time.

Without providing any documentation in the record of his initial denial for credit

time, Johnson-El states that, on August 11, 2011, Miami Correctional Facility’s Director

of Education informed him that he was ineligible for GED credit time because he had

previously received a GED or high school diploma in Texas. Johnson-El does provide in

the record some evidence, albeit not confirmed by the DOC, to show that he did not

receive his GED or high school diploma in Texas, and that he completed his GED while

incarcerated.

On November 28, 2012, Johnson-El claims he made a final appeal to the DOC

through its Commissioner and Director of Education, but received no response. On

January 14, 2013, Johnson-El filed his verified petition for additional credit time.

On January 16, 2013, the trial court entered its denial of Johnson-El’s petition,

noting that the DOC has sole authority to review and apply credit time. Johnson-El now

appeals.

Discussion and Decision

Johnson-El’s failure to serve the DOC with his complaint in this case is a

jurisdictional deficiency.1 The DOC is the sole, proper party defendant in this case. In

the absence of the DOC, any judgment is void, and thus, the trial court’s denial was

proper. Ind. Trial Rule 19.

Although Johnson-El appeals as a pro se litigant, pro se litigants are held to the

same standard as trained counsel, and must follow all procedural rules. Evans v. State

809 N.E.2d 338, 344 (Ind. Ct. App. 2004) (citing Wright v. State, 772 N.E.2d 449, 463

(Ind. Ct. App. 2002)). Johnson-El’s failure to serve notice on the DOC is fatal to his

claim, and we dismiss his appeal.

Dismissed.

BAKER, J., and MAY, J., concur.

1 Because Johnson-El’s appeal is dismissed on procedural grounds, we decline to reach the State’s argument that Johnson-El provided insufficient evidence to show that he deserved credit time he claims.