Pursuant to Ind. Appellate Rule 65(D), 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:
ALVINO PIZANO GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 01 2013, 9:23 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
ALVINO PIZANO, )
)
Appellant-Plaintiff, )
)
vs. ) No. 48A02-1209-MI-770
)
IDOC COMMISSIONER BRUCE )
LEMMONS, IDOC PAROLE CHAIRMAN )
GREGORY SERVER, CIF SUPERINTENDENT )
WENDY KNIGHT, )
)
Appellees-Defendants. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48C06-1208-MI-349
February 1, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Plaintiff Alvino Pizano appeals from the dismissal of his lawsuit against
Appellees-Defendants Bruce Lemmons, Gregory Server, and Wendy Knight
(collectively, “the Appellees”). Pizano argues that the trial court erroneously concluded
that he had failed to state a claim on which relief could be granted. We affirm.
FACTS AND PROCEDURAL HISTORY
In August of 2012, Pizano was incarcerated in Pendleton, Indiana. (Appellant’s
App. 1). On August 1, 2012, Pizano filed a habeas corpus petition, naming Indiana
Department of Correction (“DOC”) Commissioner Lemmons, DOC Parole Chairman
Server, and Correctional Industrial Facility Superintendent Knight. In Pizano’s habeas
petition, he alleged that he began serving a ten-year sentence on July 6, 2006, should
have been released on October 2, 2010, but remained incarcerated due to a wrongful
revocation of credit time. Pizano alleged that the revocation of his credit time was done
in such a fashion as to violate his rights to equal protection and due process. Pizano
requested that he be released immediately. On September 12, 2012, the trial court
dismissed Pizano’s petition for failure to state a claim upon which relief can be granted.
DISCUSSION AND DECISION
Whether the Trial Court Erred in Granting the Appellees’ Motion to Dismiss
A motion to dismiss for failure to state a claim tests the legal
sufficiency of the claim, not the facts supporting it. Charter One Mortgage
Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). Review of a trial
court’s grant or denial of a motion based on Trial Rule 12(B)(6) is therefore
de novo. Id. When reviewing a motion to dismiss, we view the pleadings
in the light most favorable to the nonmoving party, with every reasonable
inference construed in the nonmovant’s favor. City of New Haven v.
Reichhart, 748 N.E.2d 374, 377 (Ind. 2001). A complaint may not be
dismissed for failure to state a claim upon which relief can be granted
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unless it is clear on the face of the complaint that the complaining party is
not entitled to relief. Id. (citing McQueen v. Fayette County Sch. Corp.,
711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied).
Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308, 310 (Ind. 2009).
Pizano seems to assert that, but for a wrongful revocation of credit time, his
sentence would be completed, entitling him to immediate discharge. Indiana Code
section 35-50-6-1 provides, in part, that
(a) Except as provided in subsection (d) or (e), when a person imprisoned
for a felony completes the person’s fixed term of imprisonment, less the
credit time the person has earned with respect to that term, the person shall
be:
(1) released on parole for not more than twenty-four (24) months, as
determined by the parole board,
….
(2) discharged upon a finding by the committing court that the person
was assigned to a community transition program and may be discharged
without the requirement of parole; or
(3) released to the committing court if the sentence included a period of
probation.
“One is entitled to habeas corpus only if he is entitled to his immediate release
from unlawful custody.” Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496, 498
(1978). “This Court has held that no court has jurisdiction to entertain a petition for a
writ of habeas corpus unless it is alleged that the prisoner is entitled to immediate
discharge.” Id. at 140, 374 N.E.2d at 498. “A prisoner can only obtain a discharge
through habeas corpus. He cannot obtain a modification of his commitment.” Id.
Even if Pizano is correct that his credit time was erroneously revoked, his
argument is still without merit. Indiana law is clear that credit time only determines
when one is eligible for parole and does not shorten the sentence. “Legislative intent is
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clear that credit time is applied only toward the date of release on parole for felons and
does not diminish or otherwise impact the fixed term.” Majors v. Broglin, 531 N.E.2d
189, 190 (Ind. 1988). “A felon who has served his fixed term of imprisonment less the
credit time that he has earned with respect to that term is by operation of law on parole
and is not discharged until the Indiana Parole Board acts to discharge him.” Id. So, even
if Pizano is correct that he should have been paroled on October 2, 2010, he has not
alleged, much less shown, that his sentence would have been discharged.
We affirm the judgment of the trial court.
NAJAM, J., and FRIEDLANDER, J., concur.
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Alvino Pizano v. IDOC Commissioner Bruce Lemmons, IDOC Parole Chairman Gregory Server, CIF Superintendent Wendy Knight
Combined Opinion