Zolo Agona Azania v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 20 2016, 7:32 am
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
Zolo Agona Azania Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zolo Agona Azania, January 20, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1509-CR-1408
v. Appeal from the Allen County
Superior Court
State of Indiana, The Honorable Thomas J. Felts,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-8109-CF-401
Bailey, Judge.
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Case Summary
[1] Having previously filed petitions for post-conviction relief, Zolo Agona Azania
(“Azania”) sought educational credit time from the Department of Correction
(“the DOC”). The DOC denied his requests. Azania filed a petition with the
trial court, seeking judicial review of the DOC’s denial. The trial court
dismissed the petition, and Azania now appeals.
[2] We affirm.
Issue
[3] Azania raises two issues for our review, but we find one dispositive: whether
the trial court properly dismissed Azania’s petition because it lacked subject
matter jurisdiction to review his petition for judicial review.
Facts and Procedural History
[4] Azania was convicted of the murder of Gary Police Lieutenant George Yaros
in the course of a robbery, and was sentenced to death. Azania v. State, 778
N.E.2d 1253, 1256 (Ind. 2002) (citing Averhart v. State, 470 N.E.2d 666 (Ind.
1984)). His conviction and sentence were affirmed on direct appeal, but in 1993
he successfully obtained post-conviction relief as to his sentence. Id. (citing
(Averhart v. State, 614 N.E.2d 924, 930 (Ind. 1993)). The Indiana Supreme
Court remanded his case for a new penalty phase, during which Azania was
again sentenced to death. Id. Azania appealed his sentence, and the Indiana
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Supreme Court again affirmed the sentence. Id. (citing Azania v. State, 730
N.E.2d 646 (Ind. 2000)).
[5] Azania sought and was granted leave to pursue a successive petition for post-
conviction relief. Id. Azania’s successive petition for post-conviction relief was
denied at the trial court level, but the Indiana Supreme Court reversed Azania’s
death sentence and remanded for resentencing. Id. Upon remand, Azania and
the State filed a stipulated sentencing agreement, and Azania was sentenced to
sixty years for Murder and fourteen years for Robbery, as a Class B felony,
yielding an aggregate sentence of seventy-four years. App’x at 4-5.
[6] While incarcerated in the DOC, Azania completed a legal assistant/paralegal
course of study through an organization called the Blackstone Legal Institute
(“Blackstone”). On July 5, 2015, and again on July 13, 2015, Azania sought
educational credit time against his sentence, based upon his completion of the
course through Blackstone. Both requests were denied on the basis that the
DOC had not approved Blackstone’s program.
[7] On August 10, 2015, Azania filed a petition captioned, “Petition for Credit
Time Not Previously Awarded by Department of Correction.” App’x at 7.1
The trial court requested that the State, through the prosecutor’s office, make a
recommendation on how to proceed with Azania’s petition. The State moved
to dismiss the petition as a successive petition for post-conviction relief over
1
Azania’s Appendix does not include a copy of the petition.
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which the trial court lacked subject matter jurisdiction without Azania first
having obtained leave from an Indiana appellate court to pursue relief. The
trial court agreed with the State, concluded that it lacked jurisdiction over
Azania’s petition, and dismissed the petition.
[8] This appeal ensued.
Discussion and Decision
[9] Indiana Code section 35-50-6-3.3 governs how individuals serving criminal
sentences may earn credit time for obtaining certain educational credentials.
For an inmate to receive credit for career and technical or vocational
credentials, the program of study must have been approved by the DOC. Ind.
Code § 35-50-6-3.3(b). The reason given in both denials of Azania’s requests
was that the Blackstone program had not been approved by the DOC.
[10] After these denials, Azania filed a petition seeking an order for credit time from
the trial court. The Indiana Supreme Court has stated, “all manner of claims of
sentencing errors (other than those that do not require consideration of matters
outside the face of the sentencing judgment), are addressed via post-conviction
relief.” Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008). The Young Court
held that post-conviction procedures are the correct mechanism for pursuing a
claim for educational credit time. Id. This is so even if a petitioner does not
characterize his claim as one for post-conviction relief. Id.Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1408 |January 20, 2016 Page 4 of 5
[11] Under the post-conviction rules, if a petitioner has never sought post-conviction
relief in the past, that petition must follow the procedures outlined in Post-
Conviction Rule 1. Id. However, if the petitioner has previously sought post-
conviction relief, the petitioner must comply with Post-Conviction Rule 1(12)’s
procedural requirements for filing a successive petition. Id. Prior to filing a
petition in a trial-level court, a Successive Post-Conviction Relief Rule 1
Petition Form and a proposed successive petition for relief must be sent to the
Clerk of Indiana’s appellate courts. Ind. Post-Conviction Rule 1(12)(a). The
application for leave to pursue a successive petition for relief must be
authorized by this Court or the Indiana Supreme Court. P-C. R. 1(12)(b).
Absent such authorization, a trial-level court lacks jurisdiction and must dismiss
the petition. Beech v. State, 702 N.E.2d 1132, 1137 (Ind. Ct. App. 1998).
[12] Here, Azania has pursued both a petition for post-conviction relief and a
successive petition, and now seeks educational credit time that our supreme
court has held is a matter for post-conviction review. But Azania has not
sought, let alone obtained, authorization under Post-Conviction Rule 1(12) to
seek post-conviction review of his educational credit time claim. The trial court
properly dismissed his petition, and, despite his insistence to the contrary, the
civil nature of his claim has no bearing on that outcome.
[13] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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