Harry Hawkins, Appellant-Defendant v. Dushan Zatecky, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Mathias, Judge.

[1] Harry Hawkins, an inmate proceeding pro se, appeals the post-conviction court's summary disposition and denial of his petition for additional credit time. Hawkins raises two issues for our review, which we consolidate and restate as whether the court correctly denied his petition.

[2] We affirm.

Facts and Procedural History

[3] In May 2008, the trial court sentenced Hawkins to forty-five years, with thirty years executed in the Department of Correction (“DOC”), for Class A felony robbery. During his incarceration, our General Assembly amended Indiana Code section 35-50-6-3.3 regarding educational credit time. The amendment had an effective date of July 1, 2020, and included the following provision: “(d) The amount of educational credit a person may earn under this section is the following: ․ (9) An amount determined by the [DOC] under a policy adopted by the [DOC] concerning the individualized case management plan, not to exceed the maximum amount described in subsection (j).” Ind. Code § 35-50-6-3.3(d) (2023). And subsection (j) of the statute limited the amount of educational credit time that might be earned to the lesser of two years or one-third of the person's total applicable credit time. I.C. § 35-50-6-3.3(j).

[4] Thereafter, the DOC implemented a policy in accordance with I.C. § 35-50-6-3.3(d)(9). That policy stated that it would take effect on January 1, 2022, and it enabled current inmates to opt in. Hawkins opted in, and, pursuant to subsections (d)(9) and (j), the DOC determined that his maximum amount of possible educational credit time was 603 days. The DOC's calculation was based on the January 1, 2022, policy start date and Hawkins's remaining executed time.

[5] Hawkins filed a grievance within the DOC and argued that he was being denied educational credit time under the statute. In particular, Hawkins asserted that the statute's effective date of July 1, 2020, rather than the policy's start date of January 1, 2022, should be the starting point for the calculation of his available educational credit time. Appellant's App. Vol. 2, p. 21. The DOC denied Hawkins's grievance. Id. at 22.

[6] Hawkins then filed his petition for additional credit time, which the court treated as a petition for post-conviction relief in accordance with our Supreme Court's opinion in Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008) (“We hold that post-conviction proceedings are the appropriate procedure for considering properly presented claims for educational credit time” that would not result in the inmate's immediate release). The State moved for the summary disposition of Hawkins's petition, which the court granted. This appeal ensued.

Discussion and Decision

[7] Hawkins appeals the post-conviction court's summary disposition and denial of his petition for additional educational credit time. “Post-conviction proceedings do not afford the petitioner an opportunity for a super appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable at the time of the original trial or the direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. A petitioner who has been denied post-conviction relief faces a “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006).

[8] Indiana Post-Conviction Rule 1(4)(g) provides that:

[t]he court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

A summary disposition of a petition for post-conviction relief under Indiana Post-Conviction Rule 1(4)(g) presents a question of law, which we review de novo, as we would a grant of summary judgment. Pierce v. Martin, 882 N.E.2d 734, 737 (Ind. Ct. App. 2008).

[9] We initially address a few of the State's assertions in its brief. The State asserts that other panels of our Court have previously recognized that “trial courts do not have subject matter jurisdiction over the [DOC's] internal decisions about educational credit time.” Appellee's Br. at 15. The State continues: “Courts cannot interfere with the [DOC's] internal procedures and policies,” and “[t]he decisions [the DOC] make[s] about credit time are [its] to make alone, without court interference.” Id. at 15-16. Likewise, the State asserts that “Indiana courts have long held that the judiciary is not to interfere with the [DOC's] internal procedure and policies.” Id. at 16. The State adds that Indiana's judiciary “cannot review” the DOC's decisions on educational credit time. Id.

[10] The State's assertions are grossly overbroad. In support of those statements, the State cites Membres v. State, 851 N.E.2d 979 (Ind. Ct. App. 2006), trans. denied, and Kimrey v. Donahue, 861 N.E.2d 379 (Ind. Ct. App. 2007), trans. denied. In Membres, we simply held that the post-conviction petitioner had failed to exhaust his administrative remedies with respect to his request for additional credit time. 851 N.E.2d at 983. Although the Membres panel characterized that failure as an issue of subject matter jurisdiction, ensuing precedent, unmentioned by the State here, has made clear that the failure to exhaust administrative remedies is procedural, not jurisdictional. First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757, 760 (Ind. 2014), amended on other grounds on reh'g, 27 N.E.3d 768 (Ind. 2015). But, regardless, Membres is in no way supportive of the State's use of it. Moreover, unlike the petitioner in Membres, Hawkins did exhaust his administrative remedies prior to filing his petition with the court.

[11] The panel opinion in Kimrey likewise does not support the State's attempted use of it. In Kimrey, we held, in a civil tort case, that the Indiana Code did not create a private right of action to allow the plaintiffs to bring suit against various DOC officers for the reasons alleged in the complaint. 861 N.E.2d at 383. That is not a holding about judicial review. Further, applying that holding in the post-conviction context ignores our post-conviction rules and disregards clear and binding authority. See, e.g., Young, 888 N.E.2d at 1256.

[12] Hawkins's petition for additional educational credit time was authorized by our post-conviction rules and our Supreme Court's precedent applying those rules, and his petition does not present either a procedural or a jurisdictional issue. We therefore consider whether the merits of his claim justified the post-conviction court's summary disposition of it. And we agree with the post-conviction court that summary disposition for the State was warranted.

[13] The merits of Hawkins's petition alleged that our General Assembly's amendments to Indiana Code section 35-50-6-3.3, in particular subsection (d)(9), entitled Hawkins to educational credit time from the effective date of the statute rather than the effective date of the DOC's later-implemented policy under that subsection.¹ Hawkins's allegation is incorrect. Section 35-50-6-3.3(d)(9) states that “[t]he amount of educational credit a person may earn under this section is the ․ amount determined by the [DOC] under a policy adopted by the [DOC] concerning the individualized case management plan ․” The plain language of the statute leaves to the DOC's discretion the bounds of any such policy, and, most importantly here, the statute does not compel the DOC to establish an effective date under the policy equivalent to the effective date of the statutory amendment.

[14] Accordingly, the post-conviction court properly denied Hawkins's petition, and we affirm the court's judgment.

[15] Affirmed.

FOOTNOTES

1.   Hawkins's assertions of an ex post facto violation are not arguments supported by cogent reasoning, and we do not consider them. See Ind. Appellate Rule 46(A)(8)(a).

Memorandum Decision by Judge Mathias

Chief Judge Altice and Judge Bailey concur. Altice, C.J., and Bailey, J., concur.