Tony Walker v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 19 2019, 10:01 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Tony Walker Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony Walker, December 19, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1469
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant Hawkins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G05-0510-FA-182546
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1469 | December 19, 2019 Page 1 of 5
[1] Tony Walker, pro se, appeals the trial court’s denial of his petition for credit
time. We affirm.
Facts and Procedural History
[2] On October 21, 2005, the State charged Walker with various offenses, 1 on
October 18, 2007, the trial court found him guilty. On October 22, 2007,
Walker pled guilty to being an habitual offender. The court sentenced him to
sixty years for Count I, thirty years for Count VIII, and four years for Count IX,
and ordered that the sentence for Count I be served consecutive to Count VIII.
The court enhanced Count I by thirty years due to his status as an habitual
offender.
[3] In a letter dated March 4, 2019, Walker wrote to the Classification Division of
the Wabash Valley Correctional Facility indicating that he completed the Plus
Program on June 9, 2014, and was eligible to receive a time cut because he fell
“under the old law and began the program before ap-01-04-101 went into
effect.” Appellant’s Appendix Volume II at 30. In a letter addressed to Walker
dated April 16, 2019, K. Staton of the Classification Division wrote: “The time
cut for ‘PLUS’ was denied. Part of your current incarceration includes a sex
offense listed under IC 11-8-8-4.5, therefore, you are not eligible to receive
1
The State notes that the record does not contain the charging information and that the chronological case
summary is unclear about the nature of the charges. See Appellee’s Brief at 4 n.2.
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reformative program time cuts. Time cut decisions are not appealable,
therefore your appeal is being returned to you.” Id. at 29.
[4] On May 16, 2019, Walker filed a verified petition for credit time in the Marion
Circuit Court alleging that he completed the Plus Program in June 2014 and the
program allowed him to receive additional credit time pursuant to Life Skills
Programs under Ind. Code § 35-50-6-3.3. The court denied the petition.
Discussion
[5] Walker appears to argue that the former credit restricted felon statute, Ind.
Code § 35-41-1-5.5, did not apply to him because he was convicted in 2007, and
that application of the statute would be an unconstitutional ex post facto
violation. He also claims the trial court should have granted his request for
credit time under Ind. Code § 35-50-6-3.3. He contends that he meets the
statutory requirements for earning credit time under Ind. Code § 35-50-6-3
because the PLUS Program is a program approved by the Department of
Correction. The State acknowledges that Walker is correct that he is not a
credit restricted felon, but argues that Walker has failed to show that he was in
credit class I, A, or B as required by Ind. Code § 35-50-6-3.3(b)(1), that he has
demonstrated a pattern consistent with rehabilitation, or that he completed the
PLUS program.
[6] We observe that Walker is proceeding pro se. Such litigants are held to the same
standard as trained counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
2004), trans. denied. We treat Walker’s petition as one for relief under Ind. Post-
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Conviction Rule 1. See Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct. App.
2008) (noting a request for credit time under Ind. Code § 35-50-6-3.3 is treated
as a petition for relief under Post-Conviction Rule 1). Walker is appealing from
a negative judgment and must convince this court the evidence leads unerringly
and unmistakably to a decision opposite that reached by the trial court. See
Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct. App. 2004).
[7] Ind. Code § 35-50-6-3.3(b) provides:
(b) In addition to any educational credit that a person earns
under subsection (a), or good time credit a person earns under
section 3 or 3.1 of this chapter, a person may earn educational
credit if, while confined by the department of correction, the
person:
(1) is in credit Class I, Class A, or Class B;
(2) demonstrates a pattern consistent with rehabilitation;
and
(3) successfully completes requirements to obtain at least
one (1) of the following:
(A) A certificate of completion of a career and
technical or vocational education program approved
by the department of correction.
(B) A certificate of completion of a substance abuse
program approved by the department of correction.
(C) A certificate of completion of a literacy and
basic life skills program approved by the department
of correction.
(D) A certificate of completion of a reformative
program approved by the department of correction.
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[8] As observed by the State, Walker does not argue or point to the record to
indicate that he met the other requirements of Ind. Code § 35-50-6-3.3(b). We
cannot say that Walker has demonstrated that the evidence leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction
court.
[9] For the foregoing reasons, we affirm.
[10] Affirmed.
Baker, J., and Riley, J., concur.
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