Robert Jenkins v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION                                                              FILED
    Pursuant to Ind. Appellate Rule 65(D),                                     Sep 27 2017, 10:17 am
    this Memorandum Decision shall not be                                            CLERK
    Indiana Supreme Court
    regarded as precedent or cited before any                                       Court of Appeals
    and Tax Court
    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
    Robert Jenkins                                           Curtis T. Hill, Jr.
    Bunker Hill, Indiana                                     Attorney General of Indiana
    Kyle Hunter
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Robert Jenkins,                                          September 27, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A04-1510-PC-1787
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Kurt Eisgruber,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause Nos.
    49G01-1408-PC-40662
    49G01-1408-PC-40663
    May, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017            Page 1 of 8
    [1]   Robert Jenkins, pro se, appeals the post-conviction court’s dismissal of his
    petition for post-conviction relief (“PCR”). Jenkins raises seven issues, which
    we consolidate, reorder, and restate as:
    1) Whether the court erred when it denied Jenkins’ motion to
    appoint counsel;
    2) Whether the court abused its discretion when it failed to grant
    Jenkins’ motion to continue his hearing; and
    3) Whether the court erred when it determined Jenkins failed to
    exhaust his administrative remedies.
    We affirm.
    Facts and Procedural History
    [2]   Jenkins is presently serving a thirty-year sentence in the Indiana Department of
    Correction (“DOC”) for Class B felony armed robbery. On August 22, 2014,
    Jenkins filed a PCR petition asserting:
    The following programs have been completed by Jenkins while
    incarcerated, but he has not received any additional credit time
    for their completion
    a)       Substance Abuse Phase 1 (2010)
    b)       Substance Abuse Phase 2 (2010)
    c)       Substance Abuse Phase 3 (2010)
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 2 of 8
    d)       Thinking For A Change (2009)
    e)       Therapeutic community stages 1, 2, 3, and 4.
    Additionally, Jenkins completed on his own, [sic] a college-level
    study program from Blackstone Paralegal College with a
    Certificate in Paralegal Studies in 2011.
    (Appellant’s App. Vol. 2 at 16.) The PCR court set a hearing on Jenkins’
    petition for August 11, 2015. On September 19, 2014, the State Public
    Defender’s Office filed notice that it would not represent Jenkins in the
    proceeding, and Jenkins thereafter confirmed he wished to proceed pro se. In
    December 2014, the State filed an appearance and answer.
    [3]   On July 10, 2015, the State filed a “Motion to Dismiss for Lack of Jurisdiction
    or in the Alternative, Motion for Summary Disposition,” (id. at 24), and a
    memorandum of law in support thereof. On July 17, Jenkins filed a motion to
    continue the evidentiary hearing; on July 20, he filed a motion for appointment
    of counsel; and on July 22, he filed a motion for earned good time credit. On
    July 30, Jenkins filed a response to the State’s motion to dismiss or for
    summary disposition. The PCR court took all the motions under advisement.
    [4]   On August 11, 2015, the PCR court held the scheduled hearing on Jenkins’
    PCR petition. On September 16, 2015, the court entered an order denying
    Jenkins’ request for a continuance as moot, an order denying Jenkins’ request
    for counsel, and two final orders: one dismissed Jenkins’ petition for “Failure
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 3 of 8
    to Exhaust Administrative Remedies,” (id. at 68-70), and the other denied
    Jenkins’ petition on the merits. (Id. at 71-3.)
    Discussion and Decision
    Motion for Appointment of Counsel
    [5]   Jenkins asserts the PCR court erred by denying his July 20, 2015, motion for
    appointment of counsel. Neither the Sixth Amendment of the United States
    Constitution nor Article 1, Section 13 of the Indiana Constitution guarantee the
    right to counsel in post-conviction proceedings because such proceedings are
    not “criminal.” Baum v. State, 
    533 N.E.2d 1200
    , 1201 (Ind. 1989). Indiana
    PCR Rule 1(9)(a) states:
    Upon receiving a copy of the petition, including the affidavit of
    indigency, from the clerk of the court, the Public Defender may
    represent any petitioner committed to the Indiana Department of
    Correction in all proceedings under this Rule, including appeal, if
    the Public Defender determines the proceedings are meritorious
    and in the interests of justice. The Public Defender may refuse
    representation in any case where the conviction or sentence being
    challenged has no present penal consequences. Petitioner retains
    the right to employ his own counsel or to proceed pro se, but the
    court is not required to appoint counsel for a petitioner other
    than the Public Defender.
    [6]   In this case, the court notified the Public Defender of Jenkins’ petition, and the
    Public Defender filed a notice of non-representation. The Public Defender was
    not required to represent Jenkins. See Rule 1(9)(a) (“Public Defender may
    represent”). Nor was the court required to appoint other counsel for Jenkins.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 4 of 8
    See 
    id. (“court is
    not required to appoint counsel for a petitioner other than the
    Public Defender”); see also Rule 1(9)(c) (“Petitioner retains the right to proceed
    pro se, in forma pauperis if indigent, after counsel withdraws.”). We
    accordingly cannot find any error in the court’s denial of the motion for
    appointment of counsel Jenkins filed after the Public Defender had declined to
    represent him.
    Motion to Continue
    [7]   Jenkins argues the PCR court erred in denying his motion for continuance of
    the evidentiary hearing.
    Typically, a fact-finding court is given discretion to act on an
    issue when it is in a better position than an appellate court to
    evaluate the factual context surrounding the issue. We will
    second-guess the fact-finding court only when it responds to that
    factual context in an unreasonable manner. Prof. Stroud has
    provided the following description of this standard of review:
    Abuse of discretion review, like all mixed question review,
    consists of an evaluation of facts in relation to legal
    formulae. In the final analysis, the reviewing court is
    concerned with reasonableness of the action in light of the
    record.
    Therefore, a trial court’s exercise of discretion should be upset
    only when the court reached an erroneous conclusion and
    judgment, one clearly against the logic and effect of the facts and
    circumstances before the court or the reasonable, probable and
    actual deductions to be drawn therefrom.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 5 of 8
    Tapia v. State, 
    753 N.E.2d 581
    , 585 (Ind. 2001) (internal citations and
    quotations omitted).
    [8]    Jenkins asserts he filed the motion for continuance because of his “struggles and
    difficulties . . . obtaining needed documentation and access to the law library.”
    (Appellant’s Br. at 12.) He claims the court erred by holding “the hearing,
    knowing [Jenkins] was not ready.” (Id.) However, “[c]ontinuances for
    additional time to prepare for trial are generally disfavored, and courts should
    grant such motions only where good cause is shown and such a continuance is
    in the interest of justice.” Hyppolite v. State, 
    774 N.E.2d 584
    , 595 (Ind. Ct. App.
    2002), trans. denied.
    [9]    Jenkins filed his petition for PCR on August 22, 2014. On September 3, 2014,
    the PCR court scheduled the hearing on this petition for August 11, 2015. By
    mid-October 2014, Jenkins knew the Public Defender would not represent him.
    Thus, Jenkins had approximately ten months to gather documentation for the
    hearing, and we cannot hold the court abused its discretion when it denied
    Jenkins’ motion for continuance. See, e.g., 
    id. at 597
    (finding no abuse of
    discretion in denial of continuance when petitioner did not demonstrate he
    could have discovered necessary evidence if continuance was granted).
    Exhaustion of Administrative Remedies
    [10]   Jenkins alleges the PCR court erred in finding Jenkins failed to exhaust his
    administrative remedies. Our legislature has provided a mechanism by which
    incarcerated persons can earn credit against a sentence for completion of
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 6 of 8
    educational programs. See Ind. Code § 35-50-6-3.3. Following sentencing,
    when an incarcerated prisoner believes he has completed a program and
    qualifies for credit, “application for educational credit time must be made to
    and the initial ruling thereon made by the DOC.” Sander v. State, 
    816 N.E.2d 75
    , 78 (Ind. Ct. App. 2004). We have so held because “the DOC alone is able
    to assess whether the applicant has met the behavior criterion set out in” the
    statute. 
    Id. [11] When
    a petition for educational credit time is denied, the prisoner “must
    exhaust his administrative remedies within the DOC before appealing to a court
    because determinations altering credit time are the responsibility of the DOC.”
    Stevens v. State, 
    895 N.E.2d 418
    , 419 (Ind. Ct. App. 2008). Furthermore, when
    appealing the DOC’s decision to a court, the petitioner must be able to
    demonstrate “what the relevant DOC administrative grievance procedures are,
    and then that he has exhausted them at all levels.” Young v. State, 
    888 N.E.2d 1255
    , 1257 (Ind. 2008).
    [12]   Jenkins made no mention of exhaustion of administrative remedies in his PCR
    petition. At the hearing, Jenkins asserted he provided the evidence
    demonstrating exhaustion in response to the State’s motion to dismiss. Jenkins
    has directed us to nine pages of his Appendix, which he claims demonstrate
    exhaustion of administrative remedies. However, none of those memoranda
    and notes requesting copies of documentation from the DOC demonstrate the
    steps he needed to take to exhaust administrative remedies. Thus, Jenkins has
    not sustained his burden of showing what the appeal procedures were following
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 7 of 8
    a denial of credit time or that he exhausted them. We cannot say the PCR
    court erred in finding Jenkins failed to exhaust his administrative remedies. 1
    See, e.g., Members v. State, 
    851 N.E.2d 979
    , 983 (Ind. Ct. App. 2006) (dismissing
    appeal because PCR court had not had authority to review petition for
    educational credit time when petitioner had not exhausted administrative
    remedies).
    Conclusion
    [13]   The PCR court did not abuse its discretion in denying Jenkins’ motion to
    continue the evidentiary hearing or his motion to appoint counsel. Further,
    Jenkins has not demonstrated the PCR court erred in determining Jenkins had
    not exhausted his administrative remedies. We accordingly affirm the dismissal
    of Jenkins’ petition.
    [14]   Affirmed.
    Brown, J., and Pyle, J., concur.
    1
    We note the post-conviction court entered two final orders. The first dismissed Jenkins’ petition for failure
    to exhaust administrative remedies, and the second denied his petition on the merits. If, however, Jenkins
    had not exhausted his administrative remedies, then the post-conviction court did not have authority to
    review the merits of his petition. See, e.g., Burks-Bey v. State, 
    903 N.E.2d 1041
    , 1043 (Ind. Ct. App. 2009) (“If
    an offender exhausts all of his administrative remedies through the DOC . . . , Indiana’s courts then have
    subject matter jurisdiction over a request for educational credit time.”). We, accordingly, decline to consider
    the order denying Jenkins’ petition on the merits.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017             Page 8 of 8
    

Document Info

Docket Number: 49A04-1510-PC-1787

Filed Date: 9/27/2017

Precedential Status: Precedential

Modified Date: 9/27/2017