MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 10 2018, 9:04 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Drummond Curtis T. Hill, Jr. New Castle Correctional Facility Attorney General New Castle, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Drummond, October 10, 2018 Appellant-Petitioner, Court of Appeals Case No. 17A-PC-3041 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila Carlisle, Appellee-Respondent Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause Nos. 49G03-1606-PC-21055 49G03-0108-CF-161376
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 1 of 6 Case Summary [1] David Drummond appeals the post-conviction court’s order granting the State’s
motion for summary disposition and denying his successive petition for post-
conviction relief. He argues that the post-conviction court erred in concluding
that he is not entitled to educational credit time. Concluding that Drummond
has already been awarded the maximum amount of educational credit time
permitted by statute and that he is not entitled to any more educational credit
time, we affirm.
Facts and Procedural History [2] In 2002, Drummond was convicted of class A felony child molesting and
sentenced to fifty years. In 2004, Drummond completed the Life Skills Stress
Management program and the Life Skills Anger Management program. On
June 1, 2016, Drummond filed a successive petition for post-conviction relief,
alleging that he was entitled to educational credit time for his completion of the
stress and anger management programs, which had not been awarded.
[3] On June 9, 2016, the post-conviction court summarily denied Drummond’s
petition. Drummond appealed, and on July 28, 2017, another panel of this
Court concluded that summary disposition was improper because a genuine
issue of material fact existed, reversed the grant of summary disposition, and
remanded for further proceedings. Drummond v. State, No. 49A02-1606-PC-
1278, 2017 WL 3203319, at * 3 (Ind. Ct. App. July 28, 2017). In so doing, we
noted,
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 2 of 6 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.
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.
Id. at *2.
[4] On September 18, 2017, the post-conviction court issued a scheduling order,
directing the parties to file any affidavits and/or pleadings on Drummond’s
successive petition for post-conviction relief no later than November 30, 2017.
On November 29, 2017, the State filed a motion for summary disposition of
Drummond’s petition on the ground that Drummond had already received the
maximum amount of statutorily allowable educational credits. The State
attached the affidavit of Jennifer Farmer, director of the Sentence Computation
and Release Unit at the Indiana Department of Correction (“IDOC”), in which
she attested that “Drummond has received a total of 1460 days of educational
credit, the maximum allowed for him under Indiana law and IDOC policy[,]”
and therefore he “is not allowed to earn any additional educational credit.”
Appellant’s App. Vol. 2 at 122-23. In her affidavit, Farmer reported that
Drummond had received the following educational credits: 365 days for
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 3 of 6 completing an associate’s degree in general arts on April 20, 2009; 730 days for
completing a bachelor’s degree in BD management on May 7, 2012; and 365
days on July 23, 2012, for completing a bachelor’s degree in general study. Id.
at 123.
[5] On November 30, 2017, the post-conviction court issued an order granting the
State’s motion and denying Drummond’s successive petition for post-
conviction relief because “Drummond has received the maximum educational
credit stipulated by statute and is not entitled to relief.” Id. at 125. On
December 1, 2017, Drummond filed a motion for summary disposition, which
the post-conviction court denied. This appeal ensued.
Discussion and Decision [6] Drummond argues that the court erred in granting the State’s motion for
summary disposition. At the outset, we note that Drummond is proceeding pro
se. Pro se litigants without legal training are held to the same standard as
trained counsel. Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015). We
review an appeal of a grant of a motion for summary disposition in post-
conviction proceedings 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:
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 4 of 6 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.
[7] Although Drummond argues that he earned one year of educational credit time
for his completion of the stress and anger management programs, he does not
argue that there is a genuine issue of material fact.1 Drummond does not
dispute that he has received 1460 days of educational credit time as set forth in
Farmer’s affidavit or that he has received the maximum amount of educational
credit time permitted by the applicable version of Indiana Code Section 35-50-6-
3.3, which provided that “the maximum amount of credit time a person may
earn under this section” is the lesser of four years or one-third of the person’s
total applicable credit time. Thus, Drummond has already received four years
of educational credit and is not entitled to any more educational credit.
[8] Nevertheless, Drummond asserts that he was entitled to the educational credit
time for the stress and anger management programs at the time he earned them
1 Drummond also argues that the post-conviction court erred in ruling on the State’s motion for summary disposition before it had received his motion.
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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 Oct 10 2018, 9:04 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Drummond Curtis T. Hill, Jr. New Castle Correctional Facility Attorney General New Castle, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Drummond, October 10, 2018 Appellant-Petitioner, Court of Appeals Case No. 17A-PC-3041 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila Carlisle, Appellee-Respondent Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause Nos. 49G03-1606-PC-21055 49G03-0108-CF-161376
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 1 of 6 Case Summary [1] David Drummond appeals the post-conviction court’s order granting the State’s
motion for summary disposition and denying his successive petition for post-
conviction relief. He argues that the post-conviction court erred in concluding
that he is not entitled to educational credit time. Concluding that Drummond
has already been awarded the maximum amount of educational credit time
permitted by statute and that he is not entitled to any more educational credit
time, we affirm.
Facts and Procedural History [2] In 2002, Drummond was convicted of class A felony child molesting and
sentenced to fifty years. In 2004, Drummond completed the Life Skills Stress
Management program and the Life Skills Anger Management program. On
June 1, 2016, Drummond filed a successive petition for post-conviction relief,
alleging that he was entitled to educational credit time for his completion of the
stress and anger management programs, which had not been awarded.
[3] On June 9, 2016, the post-conviction court summarily denied Drummond’s
petition. Drummond appealed, and on July 28, 2017, another panel of this
Court concluded that summary disposition was improper because a genuine
issue of material fact existed, reversed the grant of summary disposition, and
remanded for further proceedings. Drummond v. State, No. 49A02-1606-PC-
1278, 2017 WL 3203319, at * 3 (Ind. Ct. App. July 28, 2017). In so doing, we
noted,
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 2 of 6 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.
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.
Id. at *2.
[4] On September 18, 2017, the post-conviction court issued a scheduling order,
directing the parties to file any affidavits and/or pleadings on Drummond’s
successive petition for post-conviction relief no later than November 30, 2017.
On November 29, 2017, the State filed a motion for summary disposition of
Drummond’s petition on the ground that Drummond had already received the
maximum amount of statutorily allowable educational credits. The State
attached the affidavit of Jennifer Farmer, director of the Sentence Computation
and Release Unit at the Indiana Department of Correction (“IDOC”), in which
she attested that “Drummond has received a total of 1460 days of educational
credit, the maximum allowed for him under Indiana law and IDOC policy[,]”
and therefore he “is not allowed to earn any additional educational credit.”
Appellant’s App. Vol. 2 at 122-23. In her affidavit, Farmer reported that
Drummond had received the following educational credits: 365 days for
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 3 of 6 completing an associate’s degree in general arts on April 20, 2009; 730 days for
completing a bachelor’s degree in BD management on May 7, 2012; and 365
days on July 23, 2012, for completing a bachelor’s degree in general study. Id.
at 123.
[5] On November 30, 2017, the post-conviction court issued an order granting the
State’s motion and denying Drummond’s successive petition for post-
conviction relief because “Drummond has received the maximum educational
credit stipulated by statute and is not entitled to relief.” Id. at 125. On
December 1, 2017, Drummond filed a motion for summary disposition, which
the post-conviction court denied. This appeal ensued.
Discussion and Decision [6] Drummond argues that the court erred in granting the State’s motion for
summary disposition. At the outset, we note that Drummond is proceeding pro
se. Pro se litigants without legal training are held to the same standard as
trained counsel. Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015). We
review an appeal of a grant of a motion for summary disposition in post-
conviction proceedings 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:
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 4 of 6 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.
[7] Although Drummond argues that he earned one year of educational credit time
for his completion of the stress and anger management programs, he does not
argue that there is a genuine issue of material fact.1 Drummond does not
dispute that he has received 1460 days of educational credit time as set forth in
Farmer’s affidavit or that he has received the maximum amount of educational
credit time permitted by the applicable version of Indiana Code Section 35-50-6-
3.3, which provided that “the maximum amount of credit time a person may
earn under this section” is the lesser of four years or one-third of the person’s
total applicable credit time. Thus, Drummond has already received four years
of educational credit and is not entitled to any more educational credit.
[8] Nevertheless, Drummond asserts that he was entitled to the educational credit
time for the stress and anger management programs at the time he earned them
1 Drummond also argues that the post-conviction court erred in ruling on the State’s motion for summary disposition before it had received his motion. He notes that he sent his motion from prison by United States mail on November 27, 2017, but the chronological case summary indicates that the motion was filed on December 1, 2017. He argues that because he had to send his motion by United States mail, the post- conviction court was required to add three days to the November 30, 2017 deadline provided in the scheduling order to allow him to file his motion for summary disposition pursuant to Indiana Code Section 13-15-6-7. However, Section 13-15-6-7 is inapplicable because it applies to environmental permits, and Drummond directs us to no other authority to support his argument. Therefore, it is waived. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (failure to present cogent argument or provide adequate citation to authority waives that issue for appellate review), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 5 of 6 and that the excessive delay denied him his “constitutional right to receive the
Credit Time.” Appellant’s Br. at 21. However, the cases he cites do not apply
to educational credit time, and, other than his bald assertion, he does not make
an argument that educational credit time should be considered a constitutional
right. He also argues that although he has already received the statutory
maximum of educational credit time, IDOC should be penalized for the
excessive delay by awarding him educational credit time beyond the maximum.
Id. at 22. Drummond does not direct us to any statutory authority for such
action, and we are unaware of any. Because there is no genuine issue that
Drummond has received the maximum amount of educational credit time, the
post-conviction court did not err in granting summary disposition and denying
his successive petition for post-conviction relief. Accordingly, we affirm.
[9] Affirmed.
Najam, J., and Pyle, J., concur
Court of Appeals of Indiana | Memorandum Decision 17A-PC-3041 | October 10, 2018 Page 6 of 6