Timothy Neal Hatton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 8, 2019
• Docket: 19A-CR-191
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 08 2019, 6:45 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 Timothy Neal Hatton Curtis T. Hill, Jr. New Castle Correctional Facility Attorney General New Castle, Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Neal Hatton, August 8, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-191 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Robert O. Bowen, Appellee-Plaintiff Judge Trial Court Cause No. 50D01-1107-FA-24

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-191 | August 8, 2019 Page 1 of 5 Case Summary [1] Timothy Neal Hatton pled guilty by plea agreement to class B felony child

molesting. He later filed a petition for post-conviction relief (“PCR”), the

denial of which was affirmed by this Court. He subsequently filed a pro se

motion to correct his designation as a credit restricted felon (“CRF”) and now

appeals, pro se, the trial court’s denial of his motion. We dismiss.

Facts and Procedural History [2] In July 2011, the State charged Hatton with class A felony child molesting

involving intercourse or deviate sexual conduct with a child under age fourteen,

class B felony criminal deviate conduct involving force or the threat of force,

class C felony child molesting involving fondling of a child under age fourteen,

class D felony sexual battery involving force or the threat of force, and class B

misdemeanor battery. He pled guilty by plea agreement to class B felony child

molesting and was sentenced to fifteen years executed plus five years suspended

to probation. In 2014, he filed a PCR petition, alleging ineffective assistance of

counsel and challenging the validity of his guilty plea. The denial of his petition

was affirmed by this Court in an unpublished decision, and transfer was denied.

See Hatton v. State, No. 18A-PC-749, 2019 WL 238327 (Ind. Ct. App. Jan. 17,

2019), trans. denied.

[3] Meanwhile, Hatton filed a pro se motion to correct his designation as a CRF,

claiming that his child molesting conviction did not involve intercourse or

deviate sexual conduct, as required under Indiana Code Section 35-31.5-2-72.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-191 | August 8, 2019 Page 2 of 5 The trial court denied the motion, and Hatton filed a motion to reconsider. The

trial court denied Hatton’s motion in an order reading, in pertinent part, “The

defendant is properly classified as a ‘credit restricted felon’ as defined by IC 35-

31.5-2-72. The defendant was convicted of child molesting under IC 35-42-4-

3(a)(1) with the allegation of deviate sexual conduct.” Appellant’s App. Vol. 2

at 29.

[4] Hatton filed this appeal. The State filed a motion to dismiss the appeal, which

the motions panel of this Court held in abeyance for determination by the

writing panel.

Discussion and Decision [5] Hatton challenges the trial court’s denial of his motion to correct his

designation as a CRF. As a preliminary matter, we note that he has chosen to

proceed pro se. It is well settled that pro se litigants are held to the same legal

standards as licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct.

App. 2016), trans. denied (2017). This means that they must follow our

established rules of procedure and accept the consequences when they fail to do

so. Id.

[6] Hatton litigated a PCR petition in 2014. He now seeks the removal of his

designation as a CRF, and the State claims that this action amounts to an

unauthorized successive PCR petition. Post-Conviction Rule 1(12) governs

successive PCR petitions and outlines a specific procedure that the petitioner

must follow. For example, the petitioner requesting a successive PCR petition

Court of Appeals of Indiana | Memorandum Decision 19A-CR-191 | August 8, 2019 Page 3 of 5 must file a specific form with the clerk of the Supreme Court, this Court, and

the Tax Court laying out his grounds for relief, and if the appellate court finds

that the petitioner has established a reasonable possibility that he is entitled to

post-conviction relief, the court will authorize the filing of the successive

petition below. Id.

[7] Hatton neither sought nor was granted permission to file a successive PCR

petition. In his motion below, he asserted that his child molesting conviction

does not meet the statutory criteria for a CRF designation because there was no

intercourse, deviate sexual conduct, or serious bodily injury, as required by

Indiana Code Section 35-31.5-2-72. Appellant’s App. Vol. 2 at 36. This type of

claim requires an examination of matters that go beyond the face of the

judgment, e.g., the factual basis underlying his guilty plea to class B felony child

molesting, his age at the time, and his victim’s age at the time. “[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 pertaining to credit time that

require resort to matters outside the face of the judgment. See id. (holding that

“post-conviction proceedings are the appropriate procedure for considering

properly presented claims for educational credit time”).

[8] Hatton should have sought permission to litigate his CRF claim as a successive

PCR but did not do so. He now attempts to reframe his claim as a motion to

correct erroneous sentence, which may be filed after PCR proceedings without

Court of Appeals of Indiana | Memorandum Decision 19A-CR-191 | August 8, 2019 Page 4 of 5 seeking the prior authorization necessary for successive PCR petitions.

Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). However, “use of the

statutory motion to correct sentence should thus be narrowly confined to claims

apparent on the face of the sentencing judgment.” Id. Claims such as Hatton’s

“that require consideration of the proceedings before, during, or after trial may

not be presented by way of a motion to correct sentence.” Id.

[9] Even if we were to address the merits of Hatton’s CRF claim, we could not

conduct a meaningful review on the scant record before us. Hatton has failed to

include a copy of the original sentencing order, the judgment of conviction, or

the transcripts from the guilty plea and sentencing hearings. It is not this

Court’s role to become Hatton’s “advocate” or conduct a search outside the

record to develop and evaluate his arguments. Lowrance, 64 N.E.3d at 938.

[10] In sum, Hatton was limited to challenging his CRF status by filing a request for

a successive PCR petition, subject to the parameters and procedures outlined in

Post-Conviction Rule 1(12). He did not do so, and as such, dismissal is

appropriate. See State ex rel. Woodford v. Marion Superior Court, 655 N.E.2d 63,

66 (Ind. 1995) (dismissal held appropriate where petitioner failed to obtain

leave from appellate court before filing second PCR petition in superior court).

We therefore grant the State’s motion to dismiss the appeal.

[11] Dismissed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-191 | August 8, 2019 Page 5 of 5