Robert J. Hicks v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 29, 2016
• Docket: 49A02-1507-CR-995
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 29 2016, 9:55 am 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 Robert J. Hicks Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana

Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert J. Hicks, February 29, 2016 Appellant-Petitioner, Court of Appeals Case No. 49A02-1507-CR-995 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Respondent. Judge

The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-0611-FC-212

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016 Page 1 of 5 Statement of the Case [1] Robert J. Hicks appeals the post-conviction court’s summary dismissal of his

petition for educational credit.1 Hicks raises a single issue for our review,

namely, whether the post-conviction court erred when it summarily dismissed

his petition. We affirm.

Facts and Procedural History [2] Following Hicks’ guilty plea to robbery, as a Class C felony, and to being a

habitual offender, the trial court sentenced Hicks to twenty years in the

Department of Correction (“DOC”). In September of 2011, Hicks filed a

petition for earned credit time in the post-conviction court. Pursuant to a

motion by the State, the post-conviction court summarily denied Hicks’

petition.

[3] In February of 2015, Hicks completed an apprenticeship to be an animal

trainer. The DOC awarded Hicks six months of educational credit for the

completion of his apprenticeship. Hicks filed an internal grievance with the

DOC on the grounds that he was entitled to one year of educational credit. The

DOC rejected Hicks’ argument and his ensuing internal appeal.

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(3) (2015).

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016 Page 2 of 5 [4] Thereafter, Hicks filed a new petition for educational credit in the post-

conviction court. The State moved for summary dismissal of Hicks’ petition on

the grounds that the DOC’s internal policies are left to the DOC’s discretion as

a matter of law, and the DOC’s policies stipulate an award of six months for

Hicks’ apprenticeship. The post-conviction court granted the State’s motion

and dismissed Hicks’ petition. This appeal ensued.

Discussion and Decision [5] Hicks appeals the post-conviction court’s dismissal of his petition for

educational credit. “[A]ll 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.”

Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008). This includes claims for an

award of educational credit, even if the petitioner has not “specifically

designated his claim as a petition for post-conviction relief.” Id. 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) (citations omitted). When appealing the denial of post-conviction

relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. 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. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016 Page 3 of 5 [6] “In order to present a claim properly, however, a petitioner must follow the

Indiana Rules of Procedure for Post-Conviction Remedies.” Young, 888 N.E.2d

at 1256-57. “If the petition is not the first for post-conviction relief a petitioner

has filed, that petitioner must follow the procedure outlined in P-C.R. 1(12) for

filing successive petitions.” Id. at 1257. Post-Conviction Rule 1(12) requires a

petitioner who seeks to file a successive petition for post-conviction relief to first

obtain permission from this court; the petitioner’s failure to obtain this

permission deprives the post-conviction court of jurisdiction over the successive

petition. Beech v. State, 702 N.E.2d 1132, 1137 (Ind. Ct. App. 1998). The

burden is on the petitioner to demonstrate that “his case is not an unapproved

successive petition for post-conviction relief.” Young, 888 N.E.2d at 1257.

[7] We must agree with the State that Hicks has not demonstrated that his petition

“is not an unapproved successive petition for post-conviction relief.” Id.

Indeed, in 2011, Hicks filed a petition for post-conviction relief in which he

sought an award of credit time. The post-conviction court summarily denied

Hicks’ petition that same year. Nonetheless, without obtaining prior approval

from this court, in April of 2015 Hicks filed the instant petition for post-

conviction relief in which he requested an award of educational credit.2 As

Hicks does not demonstrate that the instant petition was an “not an unapproved

2 In his Reply Brief, Hicks asserts that the April 2015 petition is not a successive petition for post-conviction relief because the credit time sought was based on different behavior than in his 2011 petition. But the basis for a successive petition for post-conviction relief is not a relevant concern with respect to whether the petition is in fact a successive petition. Ind. Post-Conviction Rule 1(12).

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016 Page 4 of 5 successive petition for post-conviction relief,” we must affirm the post-

conviction court’s summary dismissal of his petition. And, because we agree

with the State that the post-conviction court lacked jurisdiction to consider

Hicks’ petition in the first instance, we do not consider the merits of his

[8] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016 Page 5 of 5