Harold R. Ferrin v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 24, 2014
• Docket: 49A02-1405-CR-331
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 24 2014, 9:34 am 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:

HAROLD R. FERRIN GREGORY F. ZOELLER Bunker Hill, Indiana Attorney General of Indiana

KYLE HUNTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

HAROLD R. FERRIN, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1405-CR-331 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-0807-FA-174418

December 24, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge Harold Ferrin appeals the trial court’s order granting the State’s Motion for

Summary Disposition.

We dismiss the appeal.

The sole issue for our review is whether this appeal should be dismissed.

In May 2009, a jury convicted fifty-four-year-old Ferrin of two counts of child

molesting, one as a Class A felony and one as a Class C felony, for engaging in sexual acts

with a five-year-old girl. In June 2009, the trial court sentenced him to a total executed

sentence of thirty-four years. This Court affirmed his convictions on direct appeal in 2010,

Ferrin v. State, No. 49A05-0907-CR-429 (Jan. 12, 2010), and the denial of his petition for

post-conviction relief in 2013, Ferrin v. State, No. 49A02-1210-PC-839 (Oct. 17, 2013).

In February 2014, Ferrin filed a Verified Petition for Credit Time Not Previously

Awarded by the Department of Corrections wherein he stated that he was entitled to credit

time for completing the Purposeful Living Units Serve Program (PLUS Program). In

support of his petition and argument that he had exhausted his administrative remedies,

Ferrin submitted a copy of a November 2013 Classification Appeal with the Department

of Correction. According to that document, Ferrin’s request for credit time was denied

because “it is up to central office to decide when documentation is submitted. Please see

attachment.” Appellant’s Amended App. p. 20. Ferrin failed to include the attachment in

his appendix. Ferrin also submitted a copy of a December 2013 Classification Appeal.

According to that document, Ferrin’s request for credit time was denied because “credit

time is not subject to intra-Facility Classification Appeal Process.” Appellant’s App. p.

37.

2 The State responded to Ferrin’s petition with a Motion for Summary Disposition.

According to the State, Ferrin had not demonstrated that he had exhausted his

administrative remedies and was not entitled to credit time for the PLUS Program. The

trial court granted the State’s motion without a hearing, and Ferrin appeals.

At the outset, we note that Ferrin is proceeding pro se in this appeal. A litigant who

proceeds pro se is held to the same established rules of procedure that trained counsel is

bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans.

denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is that he will

not know how to accomplish all the things an attorney would know how to accomplish. Id.

“[W]hen a party elects to represent himself, there is no reason for us to indulge in any

benevolent presumption on his behalf, or waive any rule for the orderly and proper conduct

of his appeal. Owen v. State, 269 Ind. 513, 518, 381 N.E.2d 1235, 1239 (1978).

We further note that all manner of claims of sentencing errors – other than those

that do not require consideration of matters outside the face of the sentencing judgment –

are addressed via post-conviction relief proceedings, and the Indiana Supreme Court has

held that post-conviction proceedings are the appropriate procedure for considering

properly presented claims for credit time. Young v. State, 888 N.E.2d 1255, 1256 (Ind.

2008). In order to present such a claim properly, a petitioner must follow the Indiana Rules

of Procedure for Post-Conviction Remedies. Id. If this is not the first petition for post-

conviction relief a petitioner has filed, the petitioner must follow the procedure for filing

successive petitions outlined in P.-C.R. 1(12). Id. Here, Ferrin, who has already filed one

petition for post-conviction relief, has failed to follow the proper procedure and obtain

3 permission from this Court to file a successive petition for post-conviction. See id. Ferrin

has also failed to show that he has exhausted his administrative remedies. A petitioner

seeking credit time “must show in the first place what the relevant DOC administrative

grievances procedures are, and then that he has exhausted them at all levels.” Id. at 1257.

Exhaustion is required because the DOC should make the initial determination regarding

whether credit time should be awarded to an offender. Sander v. State, 816 N.E.2d 75 (Ind.

Ct. App. 2004). A petitioner’s failure to exhaust his administrative remedies subjects his

claim to dismissal. See Young, 888 N.E.2d at 1257.

Here, we agree with the State that Ferrin’s documents do not support his argument

that he has exhausted his administrative remedies. Specifically, Ferrin has tendered

Classification Appeals, one of which clearly states that credit time issues are not

classification matters. These documents give no information as to what DOC’s

administrative grievance procedures are or whether they have been exhausted at all levels.

Because Ferrin has failed to show that he has exhausted his administrative remedies, we

dismiss this appeal. See id.

Appeal dismissed.

FRIEDLANDER, J., and MAY, J., concur.