FILED
May 23 2017, 5:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Cory Pollard Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cory Pollard, May 23, 2017
Appellant-Defendant, Court of Appeals Case No.
36A01-1603-CR-659
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable William E. Vance,
Appellee-Plaintiff. Judge
Trial Court Cause No.
36C01-0306-FA-21
Barnes, Judge.
Case Summary
[1] Cory Pollard appeals the trial court’s denial of his motion for educational credit
time. We affirm.
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Issue
[2] The sole issue Pollard raises is whether the trial court properly denied his
motion for educational credit time.
Facts
[3] On June 30, 2003, Pollard was charged with Class A felony dealing in cocaine.
He pled guilty to the charge on November 9, 2005. On January 27, 2006, he
was sentenced to twenty years executed in the Department of Correction
(DOC), with 896 days of credit time for time served and 896 days of good time
1
credit.
[4] From January 2008 to December 16, 2011, while serving his sentence at the
Branchville Correctional Facility, Pollard pursued a Bachelor of Science degree.
He completed the requirements and received his degree on December 16, 2011.
Per Indiana Code Section 35-50-6-3.3(d)(4), the amount of credit time Pollard
could earn for obtaining his bachelor’s degree was two years (730 days).
Subsection (j) of the statute provided, however, that earned credit time could
not reduce an inmate’s sentence to less than forty-five days. Ind. Code § 35-50-
6-3.3(j).
[5] On January 13, 2012, Pollard submitted his Bachelor of Science educational
credit request to the correctional facility. His request was denied on January
1
The trial court amended the sentencing order several times to accurately reflect Pollard’s credit time. See
Supp. App. Vol. II pp. 5-7.
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17, 2012, because his earliest projected release date from the correctional facility
was within forty-five days of his request for educational credit. On January 24,
2012, Pollard was released to parole.
[6] Pollard’s parole was revoked on or about December 5, 2013, for a violation of
parole rules, and he was reincarcerated. On May 8, 2014, he submitted to the
correctional facility a second request for educational credit for obtaining his
Bachelor of Science degree. Pollard’s request was denied on May 12, 2014. A
letter issued by the DOC Director of Education explained that the request was
denied because Pollard “did not complete the Bachelor of Science degree during
[his] current period of incarceration and it was denied previously, [sic] one
cannot bank away time for future periods of incarceration. Therefore, the
Education Division [of the DOC] cannot offer you any relief in this matter.”
Supp. App. Vol. II p. 23.
[7] On February 24, 2016, Pollard filed with the trial court a pro se motion for
educational credit based on the completion of his bachelor’s degree. He
requested that two years (730 days) of credit time be subtracted from the earliest
projected release date for his reincarceration. On March 2, 2016, the trial court
denied his motion. Pollard now appeals.
Analysis
[8] Pollard argues that the trial court erred when it denied his motion for
educational credit for a bachelor’s degree he earned when he was originally
incarcerated for his conviction for dealing in cocaine. According to Pollard,
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730 days of credit time should be applied to the time he must serve due to a
parole violation because the credit time was earned “under the same
commitment and cause he is now serving.” Appellant’s Br. p. 5. We disagree.
[9] Pollard’s motion for educational credit time was governed by Indiana Code
Section 35-50-6-3.3 (2011). See Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct.
App. 2008). A motion under that statute is treated as a petition for post-
conviction relief under Indiana Post–Conviction Rule 1. Id. A petitioner
seeking post-conviction relief must establish the grounds for relief by a
preponderance of the evidence. Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct.
App. 2004). On appeal from the denial of relief, the petitioner must convince
us that the evidence leads unerringly and unmistakably to a conclusion opposite
that reached by the post-conviction court. Id. We will reverse the denial of
relief only if the evidence is without conflict and leads to but one conclusion,
and the post-conviction court reached the opposite conclusion. Id.
[10] At the time Pollard earned his educational credit, Indiana Code Section 35-50-
6-3.3(a) provided:
a person earns credit time if the person:
(1) is in credit Class I;
(2) has demonstrated a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain one (1) of the
following: . . .
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(D) A bachelor’s degree from an approved postsecondary
educational institution (as defined under IC 21-7-13-6(a)).
Subsection (j) of the statute provided: “[t]he amount of credit time earned
under this section is reduced to the extent that application of the credit time
would otherwise result in: (1) postconviction release (as defined in IC 35-40-4-
6); . . . in less than forty-five (45) days after the person earns the credit time.”
2
Ind. Code § 35-50-6-3.3(j).
[11] Pollard’s argument, essentially, is that the 730 days of educational credit he
earned during his incarceration for the dealing in cocaine conviction should be
applied to reduce the time he must serve for the parole violation. Pollard bases
his argument on Rodgers v. State, 705 N.E.2d 1039, 1042 (Ind. Ct. App. 1999),
and the proposition that an inmate’s entitlement to educational credit time
accrues immediately upon his or her completion of the degree, regardless of
subsequent parole violations or parole status.
[12] In Rodgers, the defendant completed the requirements for earning a GED while
serving his sentence in a community corrections program. Rodgers twice
violated his probation after being released on home detention. When his
probation was revoked, he applied for educational credit. The trial court denied
the credit. The State argued on appeal that the trial court was correct because:
2
Subsections (a)(3)(D) and (j) of Ind. Code § 35-50-6-3.3 have since been amended. See Ind. Code § 35-50-6-
3.3 (2016).
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1) Rodgers was on probation when he requested the credit and Indiana Code
Section 35-50-6-6 precluded a person from earning credit time while on
probation; and 2) Rodgers twice violated his probation after earning his GED,
thus failing to show that he had demonstrated a pattern consistent with
rehabilitation as required by Indiana Code Section 35-50-6-3.3. This court
concluded that, at the time Rodgers violated his probation, he already had
earned the credit time for his GED. Therefore, the trial court could not deny
him the credit based on his subsequent probation violations, and the probation
violations could not be used as evidence of his failure to demonstrate a pattern
consistent with rehabilitation. Id.
[13] Rodgers is distinguishable from the instant case. Unlike Rodgers, Pollard was
not denied the educational credit because of his parole violation. Pollard
earned the credit; however, the credit could not be applied to reduce his
sentence for dealing in cocaine because he earned the credit within forty-five
days of his release date. Ind. Code § 35-50-6-3.3(j). Had he obtained his degree
earlier, or if the time remaining until his release date had been longer, some or
all of the credit earned could have been applied to his earlier incarceration.
Nothing, however, in Rodgers suggests that Pollard should be able to “bank”
credit time to be used toward a future incarceration due to a parole violation.
To the contrary, this court observed that Rodgers’s “entitlement to the
education credit time accrued immediately upon his completion of the degree.”
Rodgers, 705 N.E.2d at 1042; see Ind. Code § 35-50-6-1(c) (providing that “[a]
person whose parole is revoked shall be imprisoned for all or part of the
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remainder of the person’s fixed term . . . less the credit time the person has
earned since the revocation”); see also Randolph v. Buss, 956 N.E.2d 38, 41 (Ind.
Ct. App. 2011) (holding that petitioner was not entitled to unused educational
credit time upon revocation of parole), trans. denied. Pollard has not shown that
the trial court erred when it declined to apply the educational credit time earned
for his 2011 completion of a bachelor’s degree to his reincarceration for a parole
violation.
Conclusion
[14] The trial court properly denied Pollard’s motion for educational credit time.
We affirm.
[15] Affirmed.
Kirsch, J., and Robb, J., concur.
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