MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 20 2017, 8:56 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
John Chupp Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Chupp, July 20, 2017
Appellant-Petitioner, Court of Appeals Case No.
48A04-1610-MI-2381
v. Appeal from the Madison Circuit
Court
Wendy Knight, Superintendent The Honorable Mark Dudley,
of Correctional Industrial Judge
Facility, Trial Court Cause No.
Appellee-Respondent 48C06-1607-MI-505
Altice, Judge.
Case Summary
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[1] John Chupp, pro se, appeals the dismissal of his Petitions for Writ of Habeas
Corpus. Chupp presents four issues for our review, which we consolidate and
restate as: Did the trial court err in dismissing Chupp’s request for habeas
relief?
[2] We affirm.
Facts & Procedural History
[3] Chupp is currently incarcerated in the Indiana Department of Correction for
crimes he committed in 1982. A jury found Chupp guilty of Class A felony
burglary, Class A felony robbery, and Class B felony criminal confinement for
his involvement, along with two others, in breaking into a woman’s home in
Southport, robbing her, tying her up, and sexually assaulting her. Chupp
received an aggregate sentence of seventy years. Our Supreme Court affirmed
Chupp’s convictions and sentence on direct appeal. See Chupp v. State, 509
N.E.2d 835 (Ind. 1987).
[4] On July 21, 2016, Chupp filed a Verified Petition for Writ of Habeas Corpus
(Petition). As the basis for his Petition, Chupp asserted that his detention is
illegal “because the State is denying [him] a transfer to the STOP program
where [he] can gain his release” and “that the DOC has not answered any of
[his] classification appeals of matter dealing with the matter discussed in this
petition [i.e., his transfer to a different program/facility].” Appellant’s Appendix
at 7-8. On August 22, 2016, Chupp filed a second Petition for Writ of Habeas
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Corpus. In this second petition, Chupp claimed that he was being illegally
detained because:
a. I am being kept at CIF without any medical attention at all
b. I am in need of medication and surgery and for 3 months this
facilities [sic] doctor and medical have refused to see me
c. I won a grievance to see the doctor here and I am still being
denied medical attention by medical here
d. Need to be handle [sic] by a doctor
Id. at 21.
[5] On August 31, 2016, the State, on behalf of Wendy Knight, Superintendent of
Correctional Industrial Facility, filed a motion to dismiss Chupp’s Petition
pursuant to Ind. Trial Rule 12(B)(1), asserting that the court was without
subject matter jurisdiction because Chupp was not challenging the lawfulness of
his detention or even claiming that he was entitled to immediate release. On
September 9, 2016, the trial court granted the State’s motion to dismiss. The
court explained:
[The State]’s Motion addresses [Chupp]’s original Petition[]; it
did not address the Amended Petition[] filed on August 22, 2016.
The court grants the motion despite this oversight because
neither Petition claims that the State wrongly detained [Chupp].
[Chupp] alleges the State refused his facility placement request
and that the State refused his request for medical care. Neither
allegation implicates a wrongful detention.
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Id. at 29.
[6] On September 12, 2016, Chupp filed a Motion for Default Judgment on the
basis that the State had not responded to his claim in paragraph 4(b) of his
Petition “that the DOC has not answered any of [his] classification appeals . . .
.” Appellant’s Appendix at 7-8. The trial court denied this motion, noting that it
had already granted the State’s motion to dismiss. Chupp next filed a Motion
to Correct Error, in which he alleged that “the State ha[d] not answered his
classification appeals on educational time cuts which is what this petition is
now all about.” Id. at 33. Two days later, the trial court denied Chupp’s
motion to correct error. Chupp now appeals.
Discussion & Decision
[7] The purpose of a writ of habeas corpus is to determine the lawfulness of custody
or detention of the defendant and 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). A defendant is entitled to a writ of habeas corpus if he is
unlawfully incarcerated and is entitled to immediate release. Id.; see also Ind.
Code § 34-25.5-1-1. Generally, we review the trial court’s habeas decision for
an abuse of discretion. Id. Where, however, the trial court dismisses the action
pursuant to Ind. Trial Rule 12(B)(1) for lack of subject matter jurisdiction based
only on a paper record, our review is de novo. GKN Co. v. Magness, 744 N.E.2d
397, 401 (Ind. 2001).
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[8] In his Petition, Chupp claimed that he was entitled to habeas relief because the
(1) the State denied him a transfer to a different facility and (2) the State had not
addressed “classification appeals of matter dealing with the matter discussed in
this petition [i.e., his transfer to a different facility].” Appellant’s Appendix at 8.
In his Amended Petition, Chupp alleged that he was being denied needed
medical care. His only statement that he is entitled to immediate release is
found in the form language of the document Chupp filled out. As found by the
trial court, Chupp’s specific allegations in his Petition and Amended Petition do
not address his restraint, why it is illegal, or why he is entitled to immediate
release.
[9] As our Supreme Court has found, a trial court “does not have ‘jurisdiction to
entertain a petition for a writ of habeas corpus inasmuch as petitioner [is]
serving time under a proper commitment, his sentence [has] not expired and he
[has] not been denied good time or credit time.” Partlow v. Superintendent,
Miami Correctional Facility, 756 N.E.2d 978, 980 (Ind. Ct. App. 2001), superseded
by statute on other grounds as stated in Paul v. State, 888 N.E.2d 818 (Ind. Ct. App.
2008), trans. denied. In other words, “[o]ne is entitled to habeas corpus only if
he is entitled to his immediate release from unlawful custody.” Id. (quoting
Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496, 498 (1978)). Having
asserted no basis for immediate release, we conclude that the trial court did not
err in dismissing Chupp’s request for habeas relief.
[10] Judgment affirmed.
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Kirsch, J. and Mathias, J., concur.
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