John E. Dickey, Appellant-Petitioner, v. State of Indiana and Mark Sevier, Appellees-Respondents. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] John E. Dickey appeals pro se from the trial court's denial of his petition for writ of habeas corpus. Concluding that he seeks to raise a claim that is not procedurally appropriate in a petition for writ, we affirm.

Facts and Procedural History

[2] In 2012, a jury determined Dickey was guilty of two counts of Class A felony child molesting. At sentencing, the court stated Dickey was sentenced to a total term of forty-five years, with five years suspended to probation, and was a credit restricted felon. But the court's abstract of judgment incorrectly imposed a total term of thirty years. Dickey appealed, challenging the admission of certain evidence at trial. The Court affirmed his convictions. Dickey v. State, 999 N.E.2d 919 (Ind. Ct. App. 2013).

[3] Dickey, by counsel, pursued post-conviction relief. His counsel and the State jointly moved to amend the abstract of judgment so that Dickey would no longer be considered a credit restricted felon. The trial court granted the motion and issued a new abstract of judgment, in which: (1) Dickey received a sentence of forty-five years, with five years suspended to probation; and (2) he was not deemed a credit-restricted felon.

[4] Dickey next filed multiple motions for alternative placement and sentence modification, all of which were denied. He also filed with this Court a petition for leave to file a successive petition for post-conviction relief, which the Court denied. Dickey v. State, Case No, 23A-SP-1945 (Ind. Ct. App. Sept. 22, 2023).

[5] The current case began when Dickey filed a petition for writ of habeas corpus against the State of Indiana and the warden of the correctional facility (collectively, “the State”) where Dickey is imprisoned. He stated that, under the original abstract of judgment, he had been sentenced to thirty years and with credit time he was entitled to immediate release. The State moved for summary judgment. The trial court granted the State's motion and entered judgment in favor of the State on Dickey's petition. This appeal followed.

Discussion and Decision

[6] In Indiana, state petitions for writ of habeas corpus are governed by Indiana Code section 34-25.5-1-1 (1998), which provides: “Every person whose liberty is restrained, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered from the restraint if the restraint is illegal.” “A defendant is entitled to a writ of habeas corpus if he or she is unlawfully incarcerated and is entitled to immediate release.” Willet v. State, 151 N.E.3d 1274, 1278 (Ind. Ct. App. 2020). A petition for writ “may not be used to determine collateral matters not affecting the custody process.” Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008). Stated differently: “When a prisoner is being held in a state prison, under a commitment, regular on its face, habeas corpus will not lie and the petition for the writ should be dismissed.” Harris v. Duckworth, 507 N.E.2d 1382, 1382 (Ind. 1987).

[7] In general, we review a trial court's habeas decision for an abuse of discretion. Hardley, 893 N.E.2d at 742. Here the trial court granted the State's motion for summary judgment. A movant is entitled to summary judgment if “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

[8] In Dickey's case, he argues that he received ineffective assistance of post-conviction counsel. Specifically, he claims his counsel negotiated a disadvantageous agreement with the State that increased his overall sentence from thirty years to forty-five years, with five years suspended to probation. This claim goes to the merits of the amended abstract of judgment and may not be raised in habeas corpus proceedings.¹ See Sumbry v. Misc. Docket Sheet for Year 2003, 811 N.E.2d 457, 461 (Ind. Ct. App. 2004) (no abuse of discretion in denying petition for writ; petitioner attacked validity of convictions), trans. denied. As a result, the State was entitled to summary judgment as a matter of law, and the trial court did not err in entering judgment in favor of the State.²

Conclusion

[9] For the reasons stated above, we affirm the judgment of the trial court.

[10] Affirmed.

FOOTNOTES

1.   Addressing this claim on the merits would require considering whether the executed portion of his current sentence, during which he is accruing credit time, is shorter or longer than his original thirty-year term, when he was deemed a credit-restricted felon.

2.   The State argues Dickey waived his claim because he did not present it to the trial court and failed to support it with cogent argument. We need not address the State's argument.

Robb, Senior Judge.

Judges May and Bradford concur. May, J., and Bradford, J., concur.