MEMORANDUM DECISION FILED Aug 16 2016, 9:55 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
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 Jeremiah Beverly Gregory F. Zoeller Attorney General of Indiana Frances Hale Barrow Kyle Martin Hunter Deputy Attorney Generals Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremiah Beverly, August 16, 2016 Appellant-Petitioner, Court of Appeals Case No. 49A04-1509-PC-1506 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Respondent. Hawkins, Judge Trial Court Cause No. 49G05-1501-PC-1403
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 1 of 14 Statement of the Case [1] Jeremiah Beverly (“Beverly”) appeals the post-conviction court’s denial of his
petition for post-conviction relief in which he requested educational credit for
his completion of a bachelor’s degree. The post-conviction court denied the
petition on the basis that Beverly had not exhausted his administrative remedies
for challenging the denial of his educational credit with the Indiana Department
of Correction (“the DOC”). Because we also find that Beverly did not exhaust
his administrative remedies, we conclude that we do not have subject matter
jurisdiction over Beverly’s case and must dismiss his appeal.
[2] We dismiss.
Issue
Whether we have subject matter jurisdiction to review the post- conviction court’s denial of Beverly’s petition for post-conviction relief.
Facts [3] On March 6, 2003, Beverly was sentenced to forty (40) years with five (5) years
suspended for Class A felony voluntary manslaughter and five (5) years for
Class C felony carrying a handgun without a license, with the sentences to be
served concurrently.
[4] In May 2008, while incarcerated, Beverly completed the coursework
requirements to earn a bachelor of general studies degree (“Bachelor’s Degree”)
from Ball State University (“Ball State”). On July 14, 2008, he submitted an Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 2 of 14 application to graduate from the university at the end of the Fall 2008 semester.
However, on August 29, 2008, he received a Class A conduct report from the
DOC for refusing a work assignment on five occasions between July 17, 2008
and July 28, 2008. As a result of this report, Beverly was placed in segregation
at the Indiana State Prison (“ISP”) and withdrew his application for
graduation.
[5] On May 27, 2009, Beverly again applied to Ball State for graduation. He then
graduated on June 19, 2009 and received his Bachelor’s Degree. On August 11,
2009, the Dean of Ball State’s School of Extended Education mailed a letter to
the DOC certifying that Beverly had “completed all of the requirements” for his
Bachelor’s Degree on June 19, 2009. (Appellant’s App. 20). Two days later,
the DOC Supervisor of Education at Beverly’s prison completed a form
verifying that Beverly had completed his degree and then sent it to the Offender
Placement section of the Classification Division of the DOC. However, on
August 26, 2009, the DOC Supervisor of Offender Placement and
Classification, Randall Short (“Classification Supervisor”), issued a finding that
Beverly was not eligible for any educational credit for completing the degree
because he had received a Class A conduct report during the year prior to
completing his degree.1
1 “Educational credit” means a reduction in a person’s term of imprisonment or confinement awarded for participation in an educational, vocational, rehabilitative, or other program. IND. CODE § 35-50-6-0.5. Pursuant to the DOC’s policies, which Beverly has partially included in his Appellant’s Appendix, an
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 3 of 14 [6] Sometime between the end of August 2009 and October 2009, Beverly
transferred to the ISP.2 The Supervisor of Education there submitted a second
form verifying that Beverly had completed his Bachelor’s Degree. However,
the Classification Supervisor again found that Beverly was ineligible to receive
any educational credit as a result of his conduct in the year prior to earning his
degree.
[7] On November 1, 2010, the DOC’s Director of Education, John Nally
(“Director of Education”), sent a letter to Beverly stating that Beverly’s “recent
letter to the Commissioner ha[d] been forwarded to [his] office.”3 (Appellant’s
App. 10). The Director of Education then informed Beverly that: “I have
confirmed with Ball State University that you officially completed your degree
on June 19, 2009. I had them check it twice, and that is the official date.”
(Appellant’s App. 10).4 In addition, the Director of Education noted that he
had reviewed Beverly’s 2008 and 2009 violations, as well as a later violation in
offender must have “one (1) year clear of any Class A conduct reports at the time of program completion” in order to qualify for educational credit. (Appellee’s App. 20). 2 It is apparent that Beverly had transferred from the ISP after his 2008 placement in segregation there. 3 Beverly did not include a copy of the letter he sent to the Commissioner, or any of his other letters, in his Appendix. Accordingly, we do not know when he sent this letter or what its contents were. 4 Beverly failed to number the pages in his Appellant’s Appendix in violation of Indiana Appellate Rule 51(C). All reference to the Appellant’s Appendix will begin pagination with page one being the Notice of Completion of the Clerk’s Record and proceeding consecutively from there. Further, we will distinguish between the Appellant’s Appendix and the Appellee’s Appendix by referring to them as “Appellant’s App.” and “Appellee’s App.,” respectively.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 4 of 14 2010. Based on these violations, the Director reaffirmed that he could not
approve Beverly’s degree for purposes of educational credit.
[8] Four months later, on March 10, 2011, Beverly submitted a “Request for
Interview” form to the Site Manager of the Indiana State Prison, Deborah J.
Cutler (“ISP Site Manager”). In this request form, Beverly asked the ISP Site
Manager if the date he had completed his Bachelor’s Degree, for the purposes
of receiving educational credit, was the date that he had completed his
coursework requirements for the degree. She replied that the relevant date was
the date Beverly had “actually graduated” from the program, not the date of his
last class. (Appellant’s App. 9).
[9] On April 19, 2011, the Director of the Indiana Department of Administration
Ombudsman Bureau (“Ombudsman Bureau”) wrote Beverly a letter confirming
that the Ombudsman Bureau was “in receipt of [his] recent complaint regarding
credit time for [his] Bachelor’s Degree.”5 (Appellant’s App. 11). The Director
told Beverly that she had contacted the appropriate personnel concerning his
complaint and had determined that Beverly was not eligible for educational
credit due to the conduct report he had received prior to graduating. She
further wrote that the Bureau had closed the complaint and that Beverly should
“[f]eel free to file additional complaints with the Bureau should [he] suspect a
5 In the letter, the Director noted that the Ombudsman Bureau was established to “investigate and resolve complaints that [the DOC] violated a law, rule, or its own policy, or that it endangered the health or safety of any person.” (Appellant’s App. 11). Beverly’s complaint is not a part of the record, so we do not know the date that Beverly filed the complaint or its contents.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 5 of 14 break in DOC policy or procedure.” (Appellant’s App. 11). However, she
requested that he “please use the facility level process available to [him] before
submitting complaints with the Bureau.” (Appellant’s App. 11).
[10] On November 13, 2014, Beverly filed a classification appeal arguing that he
should have been allowed to have copies of all of his completed program
certificates or the verification forms for his completed programs. He wrote that
the reason for his appeal was that he had not received all of his educational
credit and needed a “stamped list of completed programs that [he had not]
received time cuts for.” (Appellant’s App. 12). His appeal was denied based on
the reasoning that he was not allowed to possess copies of any certificates that
he had earned.
[11] On January 15, 2015, Beverly filed a pro se petition for post-conviction relief
arguing that he should have received educational credit for his Bachelor’s
Degree because he had “completed” the degree when he finished the credit
hours required for the degree rather than when he graduated. (Appellee’s App.
5). Because he had completed those credit hours in May 2008, prior to
receiving his Class A conduct report, he argued that he had not received a Class
A conduct report within the year prior to earning his degree. As a result, he
claimed that he should have been awarded educational credit.
[12] On February 18, 2015, while his petition for post-conviction relief was pending,
Beverly filed a formal grievance with the DOC Offender Grievance Program.
As in his petition, he argued that he had completed his degree in May 2008,
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 6 of 14 before his Class A conduct report and, therefore, should have received credit for
the degree.
[13] On March 5, 2015, the State filed a motion to dismiss Beverly’s petition for
post-conviction relief or, in the alternative, for summary disposition of the
petition. The post-conviction court held a hearing on the State’s motion on
April 15, 2015, and denied the motion at the end of the hearing. On June 24,
2015, the post-conviction court then held an evidentiary hearing on Beverly’s
petition, which it denied on September 2, 2015. As a basis for its denial of the
petition, the post-conviction court reasoned that Beverly had not exhausted his
administrative remedies prior to filing his petition because Beverly had not
followed the procedures specified in the DOC’s “Offender Grievance Process.”
(Appellant’s App. 6). Alternatively, the post-conviction court reviewed the
merits of Beverly’s claim and determined that Beverly had not “completed his
degree” until he had officially graduated—which occurred after he received his
Class A conduct report. Beverly now appeals.
Decision [14] On appeal, Beverly argues that the post-conviction court erred in determining
that he had not exhausted his administrative remedies prior to filing his petition
for post-conviction relief.6 Specifically, he asserts that he was required to
6 Beverly also argues that the DOC and the post-conviction court erred in determining that he had not completed his degree until he officially graduated from his program. However, because we find the issue of jurisdiction dispositive, we need not address Beverly’s remaining argument.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 7 of 14 exhaust his administrative remedies under the “Classification Decision Appeals
Process,” not the “Offender Grievance Process” that the post-conviction court
considered. (Appellant’s App. 6, 7). He also asserts that his attempts to contact
the Commissioner, the ISP Site Manager, and the Ombudsman Bureau were
sufficient to exhaust his administrative remedies. Because he argues that he did
exhaust his administrative remedies, he further claims that he was entitled to
educational credit for his degree.
[15] Preliminarily, we note that “[t]he petitioner in a post-conviction proceeding
bears the burden of establishing grounds for relief by a preponderance of the
evidence.” Hollowel v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (quoting Fisher
v. State, 810 N.E.2d 674, 679 (Ind. 2004)). When appealing from the denial of
post-conviction relief, the petitioner stands in the position of one appealing
from a negative judgment. Id. at 269. To prevail on appeal from the denial of
post-conviction relief, a petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id.
[16] Beverly disputes the post-conviction court’s conclusion that he did not exhaust
his administrative remedies to challenge the DOC’s denial of his educational
credit. Pursuant to INDIANA CODE § 35-50-6-3.3, a person earns education
credit if the person:
(1) is in credit Class I, Class A, or Class B;
(2) has demonstrated a pattern consistent with rehabilitation; and Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 8 of 14 (3) successfully completes requirements to obtain one (1) of the following: . . .
(D) A bachelor degree from an approved postsecondary educational institution (as defined under [I.C. §] 21-7-13-6(a)) earned during the person’s incarceration.
The legislative intent behind the educational credit statute is to enhance
rehabilitation by providing offenders with the incentive to further their
education while incarcerated. Members v. State, 851 N.E.2d 979, 982 (Ind. Ct.
App. 2006). While the trial court determines the initial credit time when an
offender is sentenced, modification to that credit time—which includes
modification because of educational credit—is the responsibility of the DOC.
Id. Stated differently, “the trial court imposes the sentence, and the DOC
administers the sentence.” Id. at 983. As a consequence, the DOC maintains
the responsibility to deny or restore credit time, and an offender with a
grievance regarding credit time must exhaust all of his administrative remedies
with the DOC before resorting to judicial remedies. Id. We have previously
held that this court lacks subject matter jurisdiction to address an issue of credit
time when a defendant has failed to exhaust his administrative remedies. Id. In
such a case, we must dismiss the appeal. Id. Further, the burden is on the
defendant to show what the relevant procedures are and that he has exhausted
them at all levels. Young v. State, 888 N.E.2d 1253, 1254 (Ind. 2008); Burks-Bey
v. State, 903 N.E.2d 1041, 1043-44 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 9 of 14 [17] Here, we find that Beverly has waived his exhaustion argument by failing to
present evidence that he fulfilled his burden of showing the post-conviction
court what the relevant DOC procedures were and that he had exhausted them
at all levels. See id. Beverly’s Appendix consists of freestanding documents and
documents that are labeled as “Exhibits” but lack any context. It is not clear if
or when the documents were admitted as evidence. Two such freestanding
documents are excerpts of the DOC’s “Offender Grievance Process” and
“Classification Decisions Appeal Process.” (Appellant’s App. 6, 7). Neither of
these excerpts is labeled as an exhibit, and Beverly has not given any context for
either of them to establish which procedural remedy he was required to
exhaust. Further, there is no evidence that he submitted either excerpt at his
post-conviction hearing to inform the post-conviction court of the relevant
procedures. Beverly withdrew his request for a transcript of the post-conviction
hearing, so our ability to review the evidence he presented to the post-
conviction court is limited.
[18] Our supreme court has held that an appellant bears the burden of presenting
this Court with a record that is complete with respect to the issues raised on
appeal. Clark v. State, 562 N.E.2d 11, 13 (Ind. 1990), cert. denied. This burden
includes the duty to ensure that the appellate court has before it a transcript of
the trial proceedings or, where no transcript is available, an affidavit setting
forward the content of the proceedings. Id. Failure to do so can result in
waiver. Id. Accordingly, because Beverly’s exhaustion of administrative
remedies is an issue on appeal and he did not meet his burden of ensuring that
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 10 of 14 the record was complete with respect to his handling of that issue at his hearing,
we conclude that he has waived his claim.
[19] Waiver notwithstanding, we conclude that we do not have subject matter
jurisdiction over Beverly’s claim because he has not shown that he exhausted
his remedies, regardless of whether the applicable DOC procedure was the
“Offender Grievance Process” or the “Classification Decisions Appeal
Process.” According to a document “Procedure for Earning Additional Credit
under 135-50-6-33,” which Beverly included in his Appendix, it is the role of
the Offender Placement/Release Sections within the Classification Division of
the DOC to determine, once they have received verification that an offender
has completed an educational degree, whether the offender meets all of the
eligibility requirements for earning educational credit.7 (Appellant’s App. 15).
The Supervisor of the Classification Division must then notify the offender of
the change in his or her earliest possible release date and the amount of credit
time that he or she has been awarded or denied. (Appellant’s App. 15). The
DOC’s “Manual of Policies and Procedures” (“the Manual”) then delineates
the “Offender Grievance Process” and the “Classification Decisions Appeals
Process.
[20] If, as the post-conviction court determined, the “Offender Grievance Process”
applies to Beverly’s challenge, Beverly was required to attempt to “resolve the
7 Beverly did not provide a context for this document.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 11 of 14 grievance in an informal manner by discussing it with [his] counselor or another
staff member in the housing unit who may be able to assist in the resolution of
the problem,” according to the excerpt of the Manual that he included in his
Appendix. (Appellee’s App. 39). Beverly had to contact the staff member “as
soon as possible after the incident, but in no case . . . [after] more than five (5)
working days from the date of the incident” without “a reasonable explanation
for delay.” (Appellee’s App. 39). If he was unable to resolve his grievance
informally, he was then required to file a formal written grievance within
twenty working days from the date of the incident triggering the grievance.
[21] Beverly has not shown that he completed any of these processes within the time
limits specified in the Manual. Even if his letter to the Commissioner or request
for an interview with the ISP Site Manager qualified as attempts at resolving his
grievance informally, he did not undertake either action until over a year after
he was initially denied educational credit. In addition, he did not file his formal
written grievance until February 18, 2015—five-and-a-half years after he was
initially denied educational credit.
[22] Alternatively, Beverly also failed to show that he exhausted his administrative
remedies under the “Classification Decisions Appeals Process.” Pursuant to
the excerpt of the Manual that Beverly included in his Appendix, if an offender
decides to appeal a classification decision,
the offender shall:
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 12 of 14 (1) Submit a written appeal within ten (10) working days from the date that the offender received the classification decision;
(2) Submit the appeal on the State Form 9260, CLASSIFICATION APPEAL;
(3) Attach relevant documents to the appeal form as deemed necessary; and,
(4) Submit the appeal form and all other documents to the Superintendent.
(Appellant’s App. 7). The Superintendent is the final administrative review for
intra-facility classification decisions. (Appellant’s App. 8).
[23] Rather than filing an appeal within ten days, as required, Beverly did not file a
classification appeal until November 13, 2014, five years after the Classification
Division had initially denied his educational credit in August 2009. Further,
Beverly’s classification appeal did not even directly challenge the Classification
Division’s denial of his educational credit. Instead, Beverly argued in his
appeal that he should have been allowed to have copies of all of his completed
program certificates. He mentioned that he had not received all of his
educational credit, but he did so only in order to justify his request for the
certificates rather than to challenge the denial of the credit.
[24] In spite of his failure to follow either the “Offender Grievance Process” or the
“Classification Decision Appeals Process,” Beverly argues that he exhausted his
remedies through the various attempts he made to raise his grievances with
DOC officials. In support of this argument, Beverly cites to Delp v. State, No.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 13 of 14 49A02-1405-PC-358 (Ind. Ct. App. March 27, 2015). However, Delp is an
unpublished memorandum decision that does not have any precedential value.
See Ind. Appellate Rule 65 (stating that a memorandum decision that is not
published in the official reporter and is not citable). Beverly has not provided us
with any other authority indicating that we may deviate from the DOC’s
established procedures when determining whether a defendant has exhausted
his remedies. Accordingly, we conclude that, because Beverly did not follow
either of the DOC processes he potentially presented at his post-conviction
hearing, he has not met his burden of showing that he exhausted his
administrative remedies prior to filing his petition for post-conviction relief. As
such, we do not have jurisdiction to review his claim and must dismiss his
appeal. See, e.g., Members, 851 N.E.2d at 983 (holding that this Court was
required to dismiss the appeal where the defendant had not exhausted his
administrative remedies to challenge the denial of his educational credit).
[25] Dismissed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016 Page 14 of 14