Mario Allen v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 4, 2015
• Docket: 48A02-1505-MI-416
• Status: Published

Opinion

MEMORANDUM DECISION Nov 04 2015, 8:16 am Pursuant to Ind. Appellate Rule 65(D), 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 Mario Allen Gregory F. Zoeller Pendleton Correction Facility Attorney General of Indiana Pendleton, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mario Allen November 4, 2015

Appellant-Petitioner, Court of Appeals Case No. 48A02-1505-MI-416 v. Appeal from the Madison Circuit Court. The Honorable Thomas Newman, Wendy Knight, Superintendent Jr., Judge. of Correctional Industrial Cause No. 48C03-1503-MI-248 Facility, Appellee-Respondent.

Garrard, Senior Judge

[1] Mario Allen appeals from the trial court’s order transferring a petition for writ

of habeas corpus filed in the county of his incarceration to the county where he

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015 Page 1 of 4 was tried and sentenced, contending that the trial court abused its discretion by

failing to rule on the merits of his petition. We affirm.

[2] On June 24, 2004, Allen received an aggregate sentence of forty-five years for 1 2 his convictions of robbery, attempted robbery, and the enhancement for his

habitual offender adjudication in the LaPorte Superior Court. Allen is

incarcerated at the Pendleton Correctional Industrial Facility in Madison

County.

[3] Allen timely initiated a direct appeal of his sentence on July 20, 2004; however,

the public defender moved to withdraw from the matter citing a conflict of

interest and sought an extension of time in which to file the opening brief. This

Court granted both motions, but directed Allen to apply to the trial court for the

appointment of subsequent pauper counsel to proceed with his appeal. No

substitute counsel was appointed and after Allen filed numerous pro se motions

with this Court, we issued an order directing the trial court to appoint successor

pauper counsel for Allen. When the trial court failed to do so, we dismissed

Allen’s appeal for failure to file an opening brief. After unsuccessfully

attempting to obtain permission to pursue a belated appeal pursuant to Indiana

Post-Conviction Rule 2(3), Allen filed a petition for post-conviction relief

alleging ineffective assistance of counsel for his failed attempt to pursue a direct

1 Ind. Code § 35-42-5-1 (1984). 2 Ind. Code § 35-42-5-1 (robbery); Ind. Code § 35-41-5-1 (1977) (attempt).

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015 Page 2 of 4 appeal. The State conceded, and the trial court agreed, that Allen had been

denied the right to counsel during his direct appeal. While the trial court agreed

with the State that Allen was not entitled to immediate release or a new trial,

the post-conviction court concluded that it was without the authority to

reinstate Allen’s direct appeal. On appeal from that decision, we concluded

that the appropriate remedy was to allow Allen to pursue his direct appeal with

the assistance of appellate counsel appointed by the trial court, and reinstated

his appeal. See Allen v. State, 959 N.E.2d 343 (Ind. Ct. App. 2011), trans. denied.

We later affirmed his convictions on direct appeal. See Allen v. State, 994

N.E.2d 316 (Ind. Ct. App. 2013).

[4] On March 27, 2015, Allen filed a verified petition for writ of habeas corpus in

the Madison Circuit Court alleging that “[b]ecause the June 17, 2011 grant of

the Petitioner’s Indiana Post Conviction Rule 1 Petition has caused the

Petitioner to be releaved [sic] of the commitment to serve in Respondent’s

custody a sentence for a conviction imposed by the LaPorte County Superior

Court the Restraint of Petitioner is unlawful.” Appellant’s App. p. 12.

[5] It is clear from Allen’s petition that he is attacking the validity of his convictions

and sentence and mistakenly believes that by granting him the opportunity to

pursue a direct appeal this Court has overturned his convictions and sentence.

Such is not the case as his convictions were affirmed on direct appeal. Both

case law and the Rules of Procedure for Post-Conviction Relief support the

Madison Circuit Court’s conclusion that it had jurisdiction to receive the filing

of the petition for writ of habeas corpus, but the petition must then be

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015 Page 3 of 4 transferred to the court where the petitioner was convicted or sentenced,

LaPorte Superior Court. Ind. Post-Conviction Rule 1(1)(c); Miller v. Lowrance,

629 N.E.2d 846, 847 (Ind. 1994).

Affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015 Page 4 of 4