Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 27 2012, 8:51 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
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APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KENT A. EASLEY GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENT A. EASLEY, )
)
Appellant-Petitioner, )
)
vs. ) No. 73A01-1207-CR-333
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Dan E. Marshall, Special Judge
Cause No. 73D01-0004-CF-028
December 27, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
After entering into a plea agreement that provided for a sentence of twenty years
with ten years executed in the Indiana Department of Correction (DOC) and ten years
suspended to probation regarding various drug offenses, Kent A. Easley twice had his
probation revoked for violations and is now serving the remainder of his suspended
sentence in the DOC. Easley’s appeal of the second probation revocation was dismissed
with prejudice by this Court because he failed to timely submit an appellant’s brief.
Thereafter, Easley petitioned for post-conviction relief, claiming that he should have
received credit time for substance abuse treatment that he completed prior to his original
sentencing and raising a number of issues related to his second probation revocation.
After a hearing, the post-conviction court denied all of Easley’s claims.
Concluding that Easley is not entitled to the credit time he seeks and that his
remaining claims are barred by the doctrine of res judicata or procedurally defaulted, we
affirm the judgment of the post-conviction court.
FACTS
The facts and procedural history concerning Easley’s original conviction and his
subsequent probation revocations have previously been set forth by another panel of this
Court as follows:
In December 2000, Easley pled guilty pursuant to a plea agreement to two
counts of dealing cocaine as class B felonies and possession of marijuana as
a class A misdemeanor in Shelby County Superior Court, and the trial court
sentenced Easley to an aggregate term of twenty years with ten years
executed and ten years suspended to probation.
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In June 2007, a probation officer filed a petition to revoke Easley’s
probation, and following fact-finding and dispositional hearings, the court
found that Easley violated his probation and ordered that Easley serve three
of the ten years of his previously-suspended sentence, gave Easley credit
for time served, and ordered that probation continue following his release.
On appeal from the revocation of his probation, Easley presented ten issues,
and this court remanded solely for a determination of Easley’s total jail
credit time and otherwise affirmed the court’s revocation determination.
Easley v. State, 73A04-0810-CR-580 (Ind. Ct. App. August 4, 2009). The
Shelby County Superior Court issued an order modifying its prior
sentencing order on September 29, 2009.
The Shelby County Probation Department filed a second petition to revoke
Easley’s probation on February 24, 2010, which was amended by
addendums filed on June 3, 2010, and September 20, 2010. Following a
hearing, the Shelby County Superior Court issued an order on December
22, 2010, finding that Easley had violated the terms of his probation and
order[ing] him to serve the remaining seven years of his previously-
suspended sentence in the DOC.
Easley v. Ind. Dep’t of Corr., No. 49A04-1202-PL-220 (Ind. Ct. App. Sept. 17, 2012).
Easley also appealed the trial court’s second revocation of his probation, but this appeal
was dismissed with prejudice after Easley failed to timely submit an appellant’s brief
after a number of extensions were granted.
On April 23, 2012, Easley petitioned the Shelby County Superior Court for
additional credit time he claimed he had earned in 2000 for completing a certified
substance abuse treatment program while he was incarcerated in the Shelby County Jail
pending resolution of the original charges. In his “Successive Motion for Additional
Earned Credit Time” and the supporting memorandum and exhibits, Easley claimed to
have exhausted a number of grievance procedures in his pursuit of the credit time,
beginning with the instructor of the course and the Shelby County Jail prior to his
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conviction and including the trial court, the Shelby County Jail again, and ultimately the
DOC in the years following his conviction. Appellant’s App. p. 47-78.
On May 7, 2012, Easley filed with the Shelby County Superior Court a document
entitled “Petitioner’s Automatic Amendments to Successive Additional Earned Credit
Time Motion.” Id. at 79. In this document, Easley added a number of claims unrelated
to his petition for credit time, but rather challenging his second probation revocation.
More particularly, Easley challenged the validity of a “re-arrest” warrant and claimed that
his double jeopardy rights were violated when the trial court ordered him to “re-serve the
7 executed years . . . again,” that the trial court judge acted without jurisdiction in finding
him guilty of a probation violation, and that the trial court had erred by ordering him to
pay court costs and fees related to his probation. Id. at 81, 83.
The Shelby County Superior Court held a hearing on Easley’s amended post-
conviction petition on June 29, 2012. At the hearing, Easley made arguments paralleling
those in his petition regarding the credit time issue, the alleged double jeopardy concerns,
and the allegedly invalid re-arrest warrant. Easley also argued the fact that a judge who
had previously recused himself from the case may have signed the re-arrest warrant was
another reason that it was void. Easley made no mention at the hearing of his claims
regarding the trial court having no jurisdiction or the order to pay court costs and fees.
At the conclusion of the evidence, the post-conviction court stated it would take
Easley’s request for credit time under advisement but denied each of Easley’s remaining
claims, stating:
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I think you’re just wanting the Court to readdress issues that have
previously been addressed or could have been addressed by this Court and
the Indiana Court of Appeals, and have either been ruled adversely to you
or have not previously been raised by you. I don’t find those are issues that
are proper for me to hear . . . .
Tr. p. 20. On July 17, 2012, the post-conviction court entered an order denying Easley’s
request for credit time and reaffirming its denial of his remaining requests. Easley now
appeals.
DISCUSSION AND DECISION
Easley raises numerous challenges to the trial court’s order denying his request for
post-conviction relief, some of which he presented to the post-conviction court and some
of which are being raised for the first time on appeal. More particularly, Easley
contends:
(1) that the trial court erred by denying him credit time for the substance
abuse treatment he completed in 2000;
(2) that the trial court erred by summarily denying his remaining claims
because the public officials who brought about his second probation
revocation were engaged in fraud;
(3) that the re-arrest warrant issued before his second probation violation
was invalid because it had been issued by a judge who had recused
himself earlier in the proceedings;
(4) that the judge who recused himself erred by failing to provide advance
notice to Easley and not allowing him to select a special judge from a
list of judges;
(5) that the appointed special judge erred by failing to file an affidavit
qualifying himself and that this failure resulted in the special judge
having no jurisdiction over Easley’s probation revocation hearing;
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(6) that prosecutorial misconduct and malicious prosecution mandated the
reversal of his probation violation;
(7) that the revocation of Easley’s probation subjected him to “double
jeopardy sentencing;”
(8) that the trial court erred by ordering Easley to pay certain costs and
fees related to his probation;
(9) that Easley did not waive any of his arguments by failing to timely
object because he had mental defects at the time;
(10) that the State’s brief fails to state a claim upon which relief can be
granted because of procedural errors such as failing to submit an
appendix;
(11) that the State waived its arguments of waiver and res judicata as to
Easley’s claims of error because it failed to present them to the trial
court;
(12) that this Court and the Indiana Supreme Court denied Easley his right
to a full and fair appeal when it dismissed the appeal from his second
probation revocation because the trial court clerk did not file the
correct transcripts until after Easley’s appeal was dismissed; and
(13) that this Court denied Easley his right to a full and fair appeal as to his
second probation violation by releasing transcripts to appellees before
they were released to Easley.
I. Easley’s Claims are in the Nature of Post-Conviction Relief
We first observe that Easley’s requests for relief, including his request for credit
time, are in the nature of post-conviction proceedings and should be analyzed as such.
See Diaz v. State, 753 N.E.2d 724, 727 (Ind. Ct. App. 2001) (stating that a request for
credit time has historically been treated as a petition for post-conviction relief). Post-
conviction proceedings allow a petitioner to request relief from a conviction or a sentence
under limited circumstances, such as when “the sentence exceeds the maximum
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authorized by law, or is otherwise erroneous” or when “probation [has been] unlawfully
revoked.” Ind. Post-Conviction Rule 1(1)(a)(3), (5).
However, a post-conviction petition “is not a substitute for a direct appeal from the
conviction and/or the sentence and all available steps including those under Rule PC 2
should be taken to perfect such an appeal.” P-CR 1(1)(b). Rather, post-conviction relief
is limited to “issues that were not known at the time of the original trial or that were not
available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). An
issue known and available on direct appeal, but not raised, is waived by procedural
default. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). And an issue that was
raised on direct appeal but decided adversely to the petitioner is barred as res judicata.
Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999).
To obtain relief on issues properly before the post-conviction court, a petitioner
must establish the grounds for relief by a preponderance of the evidence. Wesley v.
State, 788 N.E.2d 1247, 1250 (Ind. 2003). If the petitioner fails to satisfy that burden
before the post-conviction court, on appeal the petitioner faces a rigorous standard of
review and “must convince the court that the evidence as a whole leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction court.” Id. We
neither reweigh the evidence nor judge the credibility of witnesses, and we examine only
the probative evidence and reasonable inferences supporting the post-conviction court’s
determination. Holmes v. State, 728 N.E.2d 164, 169 (Ind. 2000).
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II. The Request for Credit Time
Easley claims that he is entitled to credit time under Indiana Code section 35-50-6-
3.3(b), which provides in relevant part:
In addition to any credit time that a person earns under subsection (a) or
section 3 of this chapter, a person may earn credit time if, while confined
by the department of correction, the person:
(1) is in credit Class I;
(2) demonstrates a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain at least one (1) of the
following:
...
(B) A certificate of completion of a substance abuse program approved
by the department.
The DOC has the obligation to “establish admissions criteria and other requirements for
programs available for earning credit time under subsection (b).” Ind. Code § 35-50-6-
3.3(c).
We first observe that by Easley’s own account, he completed the substance abuse
treatment program in 2000 while he was detained in the Shelby County Jail prior to the
sentencing on his original charges. Given that Indiana Code section 35-50-6-3.3(b)
seems only to provide the possibility of credit time if one completes a qualifying program
“while confined by the department,” the statute is wholly inapplicable to Easley. In
addition, Easley presented no evidence before the post-conviction court that the program
he completed was “approved by the department,” and indeed, there was ample evidence
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presented that the program was not approved by the DOC. Tr. p. 10; Appellant’s App. p.
61, 64, 71-72. Finally, because Easley completed the substance abuse treatment prior to
sentencing, any determination of how much his sentence should have been reduced as a
result of its completion was within the purview of the trial court at the time of sentencing.
See Murphy v. State, 942 N.E.2d 818, 819 (Ind. 2011) (stating that because the trial court
initially determines a defendant’s sentence and the amount of credit time to which a
defendant is entitled at the time of sentencing, it is the trial court, and not the DOC, that
should decide whether a defendant should be granted credit time for completion of any
educational degrees prior to sentencing). Thus, the post-conviction court did not err in
denying Easley credit time pursuant to Indiana Code section 35-50-6-3.3(b).
III. Easley’s Remaining Claims
Each of Easley’s remaining claims relates to the second revocation of his
probation in 2010 which resulted in him being ordered to serve the seven remaining years
of his original sentence in the DOC. We note that Easley’s appeal of the second
probation revocation was dismissed with prejudice by this Court. Easley v. State, No.
73A04-1012-CR-3 (Ind. Ct. App. Oct. 28, 2011) (dismissed without opinion). Because a
dismissal with prejudice is generally viewed as a dismissal on the merits, the dismissal of
Easley’s appeal was “conclusive of the rights of the parties and is res judicata as to any
questions which might have been litigated.” Ilagan v. McAbee, 634 N.E.2d 827, 829
(Ind. Ct. App. 1994). Thus, each of Easley’s claims collaterally challenging his second
probation revocation is barred under the doctrine of res judicata. Also, those issues that
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were previously available to Easley but that he now raises for the first time on appeal are
procedurally defaulted. Bunch v. State, 778 N.E.2d at 1289.
The judgment of the post-conviction court is affirmed.
RILEY, J., and BARNES, J., concur.
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