MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 28 2017, 9:39 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Drummond Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Drummond, July 28, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02-1606-PC-1278 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Respondent. Magistrate The Honorable Sheila Carlisle, Judge Trial Court Cause No. 49G03-0108-CF-161376 49G03-1606-PC-21055
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 1 of 7 [1] David Drummond appeals the summary denial of his successive petition for
post-conviction relief. Drummond raises four issues which we consolidate and
restate as whether the post-conviction court erred in denying his petition. We
reverse and remand for further proceedings.
Facts and Procedural History
[2] In 2002, Drummond was found guilty of child molesting as a class A felony and
sentenced to fifty years. On June 1, 2016, with authorization from this Court,
Drummond filed a successive petition for post-conviction relief alleging that he
had not been awarded credit time for his completion of two programs, namely,
Life Skills Stress Management in March 2004 and Life Skills Anger
Management in October 2004. The post-conviction court issued an order dated
June 9, 2016, summarily denying Drummond’s petition, finding related solely
to a long-standing dispute with the Indiana Department of Correction (the
“DOC”) regarding additional earned credit time, and that the court had
previously denied his claims for the same claimed credit time in orders dated
October 24, 2014, and February 9, 2016.1 Drummond initiated an appeal, and
on September 28 and October 27, 2016, this Court issued orders directing the
Marion Circuit and Superior Courts Clerk to assemble the Clerk’s Record, and
file a Notice of Completion of Clerk’s Record, which Notice was filed in
November 2016.
1 The parties do not cite to the record for the October 24, 2014 and February 9, 2016 orders.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 2 of 7 Discussion
[3] Before discussing Drummond’s allegations of error, we observe that he is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id.
[4] Drummond argues that the post-conviction court abused its discretion in
denying his successive petition and that he demonstrated that he is entitled to a
total of one year of credit time. He further argues that the post-conviction court
denied him his right to represent himself when it failed to have him present for
a status/evidentiary hearing and that we should find the Marion Circuit and
Superior Courts Clerk in contempt for failing to timely file a Notice of
Completion of Clerk’s Record.
[5] With respect to Drummond’s contempt claim, we note that the Clerk has
already filed the Notice of Completion of Clerk’s Record, and accordingly the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 3 of 7 relief sought by Drummond has already been granted and the issue is moot. See
In re F.S., 53 N.E.3d 582, 590 (Ind. Ct. App. 2016) (observing an issue is
deemed moot when no effective relief can be rendered to the parties before the
court). As for Drummond’s claim that he was not permitted to be present at a
hearing to represent himself, the chronological case summary does not show
that the post-conviction court held a hearing on his successive petition for post-
conviction relief which he could have attended.
[6] Turning to Drummond’s argument that the court erred in denying his
successive petition for post-conviction relief, 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. Norris v. State, 896
N.E.2d 1149, 1151 (Ind. 2008). 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. Id. Post-Conviction Rule
1(4)(g) provides:
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 4 of 7 [7] A post-conviction court is permitted to summarily deny a petition for post-
conviction relief only if the pleadings conclusively show the petitioner is
entitled to no relief. Gann v. State, 550 N.E.2d 803, 804 (Ind. Ct. App. 1990).
The necessity of an evidentiary hearing is avoided when the pleadings show
only issues of law. Id. The need for a hearing is not avoided, however, when a
determination of the issues hinges, in whole or in part, upon facts not resolved.
Id. This is true even though the petitioner has only a remote chance of
establishing his claim. Id. at 804-805.
[8] Ind. Code § 35-50-6-3.3 provides in part that a person may earn educational
credit if, while confined by the DOC, the person:
(1) is in credit Class I, Class A, or Class B;
(2) demonstrates a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain at least one (1) of the following:
(A) A certificate of completion of a career and technical or vocational education program approved by the department of correction.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 28 2017, 9:39 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Drummond Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Drummond, July 28, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02-1606-PC-1278 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Respondent. Magistrate The Honorable Sheila Carlisle, Judge Trial Court Cause No. 49G03-0108-CF-161376 49G03-1606-PC-21055
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 1 of 7 [1] David Drummond appeals the summary denial of his successive petition for
post-conviction relief. Drummond raises four issues which we consolidate and
restate as whether the post-conviction court erred in denying his petition. We
reverse and remand for further proceedings.
Facts and Procedural History
[2] In 2002, Drummond was found guilty of child molesting as a class A felony and
sentenced to fifty years. On June 1, 2016, with authorization from this Court,
Drummond filed a successive petition for post-conviction relief alleging that he
had not been awarded credit time for his completion of two programs, namely,
Life Skills Stress Management in March 2004 and Life Skills Anger
Management in October 2004. The post-conviction court issued an order dated
June 9, 2016, summarily denying Drummond’s petition, finding related solely
to a long-standing dispute with the Indiana Department of Correction (the
“DOC”) regarding additional earned credit time, and that the court had
previously denied his claims for the same claimed credit time in orders dated
October 24, 2014, and February 9, 2016.1 Drummond initiated an appeal, and
on September 28 and October 27, 2016, this Court issued orders directing the
Marion Circuit and Superior Courts Clerk to assemble the Clerk’s Record, and
file a Notice of Completion of Clerk’s Record, which Notice was filed in
November 2016.
1 The parties do not cite to the record for the October 24, 2014 and February 9, 2016 orders.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 2 of 7 Discussion
[3] Before discussing Drummond’s allegations of error, we observe that he is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id.
[4] Drummond argues that the post-conviction court abused its discretion in
denying his successive petition and that he demonstrated that he is entitled to a
total of one year of credit time. He further argues that the post-conviction court
denied him his right to represent himself when it failed to have him present for
a status/evidentiary hearing and that we should find the Marion Circuit and
Superior Courts Clerk in contempt for failing to timely file a Notice of
Completion of Clerk’s Record.
[5] With respect to Drummond’s contempt claim, we note that the Clerk has
already filed the Notice of Completion of Clerk’s Record, and accordingly the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 3 of 7 relief sought by Drummond has already been granted and the issue is moot. See
In re F.S., 53 N.E.3d 582, 590 (Ind. Ct. App. 2016) (observing an issue is
deemed moot when no effective relief can be rendered to the parties before the
court). As for Drummond’s claim that he was not permitted to be present at a
hearing to represent himself, the chronological case summary does not show
that the post-conviction court held a hearing on his successive petition for post-
conviction relief which he could have attended.
[6] Turning to Drummond’s argument that the court erred in denying his
successive petition for post-conviction relief, 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. Norris v. State, 896
N.E.2d 1149, 1151 (Ind. 2008). 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. Id. Post-Conviction Rule
1(4)(g) provides:
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 4 of 7 [7] A post-conviction court is permitted to summarily deny a petition for post-
conviction relief only if the pleadings conclusively show the petitioner is
entitled to no relief. Gann v. State, 550 N.E.2d 803, 804 (Ind. Ct. App. 1990).
The necessity of an evidentiary hearing is avoided when the pleadings show
only issues of law. Id. The need for a hearing is not avoided, however, when a
determination of the issues hinges, in whole or in part, upon facts not resolved.
Id. This is true even though the petitioner has only a remote chance of
establishing his claim. Id. at 804-805.
[8] Ind. Code § 35-50-6-3.3 provides in part that a person may earn educational
credit if, while confined by the DOC, the person:
(1) is in credit Class I, Class A, or Class B;
(2) demonstrates a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain at least one (1) of the following:
(A) A certificate of completion of a career and technical or vocational education program approved by the department of correction.
(B) A certificate of completion of a substance abuse program approved by the department of correction.
(C) A certificate of completion of a literacy and basic life skills program approved by the department of correction.
(D) A certificate of completion of a reformative program approved by the department of correction.
Ind. Code § 35-50-6-3.3(b).
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 5 of 7 [9] In this case, the State notes that Drummond’s petition and supporting affidavit
were before the post-conviction court, and his affidavit states in part that he
completed the Life Skills Program Stress Management on March 3, 2004, and
the Life Skills Program Anger Management on October 19, 2004. His
instructor for the programs indicated he would receive six months of credit time
upon the completion of each of the programs for a total of one year credit time.
The State points out that in 2007 Drummond received a letter indicating the
programs were not eligible for credit time, but that Adult Offender
Classification policy 01-04-101 indicates he was entitled to credit time.
[10] The State acknowledges that Drummond raised a genuine issue of material fact,
making a summary denial inappropriate, and states that further proceedings are
required in order to determine whether Drummond is entitled to relief. It states
that this case should be remanded for further proceedings in which the State can
respond to Drummond’s petition and move for summary disposition if
appropriate.2
[11] Based upon the record and the State’s concession that summary denial was
inappropriate, we conclude that the pleadings do not conclusively show that
Drummond is entitled to no relief. Accordingly, we reverse and remand for
2 The State also indicates “[i]t is impermissible for the trial court to consider evidence outside the record, including the October 24, 2014 and February 9, 2016 orders, which the trial court had not taken judicial notice of” and that it “does not believe that the February 9, 2016 Findings of Fact and Conclusions of Law is regarding the same earned credit time that Drummond now argues he is entitled to.” Appellee’s Brief at 11, 11 n.6.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 6 of 7 further proceedings. See Gann, 550 N.E.2d at 805 (noting that where the facts
pleaded raise an issue of merit, summary disposition is erroneous, agreeing with
the petitioner that the pleadings raised a genuine question of material fact, and
remanding for further proceedings).
Conclusion
[12] For the foregoing reasons, we reverse and remand for further proceedings
consistent with this opinion.
[13] Reversed and remanded.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017 Page 7 of 7