Tony Walker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 19, 2019
• Docket: 19A-CR-1469
• 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 Dec 19 2019, 10:01 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 Tony Walker Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tony Walker, December 19, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1469 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-0510-FA-182546

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 1 of 5 [1] Tony Walker, pro se, appeals the trial court’s denial of his petition for credit

time. We affirm.

Facts and Procedural History

[2] On October 21, 2005, the State charged Walker with various offenses, 1 on

October 18, 2007, the trial court found him guilty. On October 22, 2007,

Walker pled guilty to being an habitual offender. The court sentenced him to

sixty years for Count I, thirty years for Count VIII, and four years for Count IX,

and ordered that the sentence for Count I be served consecutive to Count VIII.

The court enhanced Count I by thirty years due to his status as an habitual

offender.

[3] In a letter dated March 4, 2019, Walker wrote to the Classification Division of

the Wabash Valley Correctional Facility indicating that he completed the Plus

Program on June 9, 2014, and was eligible to receive a time cut because he fell

“under the old law and began the program before ap-01-04-101 went into

effect.” Appellant’s Appendix Volume II at 30. In a letter addressed to Walker

dated April 16, 2019, K. Staton of the Classification Division wrote: “The time

cut for ‘PLUS’ was denied. Part of your current incarceration includes a sex

offense listed under IC 11-8-8-4.5, therefore, you are not eligible to receive

1 The State notes that the record does not contain the charging information and that the chronological case summary is unclear about the nature of the charges. See Appellee’s Brief at 4 n.2.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 2 of 5 reformative program time cuts. Time cut decisions are not appealable,

therefore your appeal is being returned to you.” Id. at 29.

[4] On May 16, 2019, Walker filed a verified petition for credit time in the Marion

Circuit Court alleging that he completed the Plus Program in June 2014 and the

program allowed him to receive additional credit time pursuant to Life Skills

Programs under Ind. Code § 35-50-6-3.3. The court denied the petition.

Discussion

[5] Walker appears to argue that the former credit restricted felon statute, Ind.

Code § 35-41-1-5.5, did not apply to him because he was convicted in 2007, and

that application of the statute would be an unconstitutional ex post facto

violation. He also claims the trial court should have granted his request for

credit time under Ind. Code § 35-50-6-3.3. He contends that he meets the

statutory requirements for earning credit time under Ind. Code § 35-50-6-3

because the PLUS Program is a program approved by the Department of

Correction. The State acknowledges that Walker is correct that he is not a

credit restricted felon, but argues that Walker has failed to show that he was in

credit class I, A, or B as required by Ind. Code § 35-50-6-3.3(b)(1), that he has

demonstrated a pattern consistent with rehabilitation, or that he completed the

PLUS program.

[6] We observe that Walker is proceeding pro se. Such litigants are held to the same

standard as trained counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.

2004), trans. denied. We treat Walker’s petition as one for relief under Ind. Post-

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 3 of 5 Conviction Rule 1. See Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct. App.

2008) (noting a request for credit time under Ind. Code § 35-50-6-3.3 is treated

as a petition for relief under Post-Conviction Rule 1). Walker is appealing from

a negative judgment and must convince this court the evidence leads unerringly

and unmistakably to a decision opposite that reached by the trial court. See

Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct. App. 2004).

[7] Ind. Code § 35-50-6-3.3(b) provides:

(b) In addition to any educational credit that a person earns under subsection (a), or good time credit a person earns under section 3 or 3.1 of this chapter, a person may earn educational credit if, while confined by the department of correction, the person:

(1) is in credit Class I, Class A, or Class B;

(2) demonstrates a pattern consistent with rehabilitation; and

(3) successfully completes requirements to obtain at least one (1) of the following:

(A) A certificate of completion of a career and technical or vocational education program approved by the department of correction.

(B) A certificate of completion of a substance abuse program approved by the department of correction.

(C) A certificate of completion of a literacy and basic life skills program approved by the department of correction.

(D) A certificate of completion of a reformative program approved by the department of correction. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 4 of 5 [8] As observed by the State, Walker does not argue or point to the record to

indicate that he met the other requirements of Ind. Code § 35-50-6-3.3(b). We

cannot say that Walker has demonstrated that the evidence leads unerringly

and unmistakably to a decision opposite that reached by the post-conviction

court.

[9] For the foregoing reasons, we affirm.

[10] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 5 of 5