Mario Allen v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)

MEMORANDUM DECISION
Nov 04 2015, 8:16 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Mario Allen Gregory F. Zoeller
Pendleton Correction Facility Attorney General of Indiana
Pendleton, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mario Allen November 4, 2015
Appellant-Petitioner, Court of Appeals Case No.
48A02-1505-MI-416
v. Appeal from the Madison Circuit
Court.
The Honorable Thomas Newman,
Wendy Knight, Superintendent Jr., Judge.
of Correctional Industrial Cause No. 48C03-1503-MI-248
Facility,
Appellee-Respondent.
Garrard, Senior Judge
[1] Mario Allen appeals from the trial court’s order transferring a petition for writ
of habeas corpus filed in the county of his incarceration to the county where he
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was tried and sentenced, contending that the trial court abused its discretion by
failing to rule on the merits of his petition. We affirm.
[2] On June 24, 2004, Allen received an aggregate sentence of forty-five years for
1 2
his convictions of robbery, attempted robbery, and the enhancement for his
habitual offender adjudication in the LaPorte Superior Court. Allen is
incarcerated at the Pendleton Correctional Industrial Facility in Madison
County.
[3] Allen timely initiated a direct appeal of his sentence on July 20, 2004; however,
the public defender moved to withdraw from the matter citing a conflict of
interest and sought an extension of time in which to file the opening brief. This
Court granted both motions, but directed Allen to apply to the trial court for the
appointment of subsequent pauper counsel to proceed with his appeal. No
substitute counsel was appointed and after Allen filed numerous pro se motions
with this Court, we issued an order directing the trial court to appoint successor
pauper counsel for Allen. When the trial court failed to do so, we dismissed
Allen’s appeal for failure to file an opening brief. After unsuccessfully
attempting to obtain permission to pursue a belated appeal pursuant to Indiana
Post-Conviction Rule 2(3), Allen filed a petition for post-conviction relief
alleging ineffective assistance of counsel for his failed attempt to pursue a direct
1
Ind. Code § 35-42-5-1 (1984).
2
Ind. Code § 35-42-5-1 (robbery); Ind. Code § 35-41-5-1 (1977) (attempt).
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appeal. The State conceded, and the trial court agreed, that Allen had been
denied the right to counsel during his direct appeal. While the trial court agreed
with the State that Allen was not entitled to immediate release or a new trial,
the post-conviction court concluded that it was without the authority to
reinstate Allen’s direct appeal. On appeal from that decision, we concluded
that the appropriate remedy was to allow Allen to pursue his direct appeal with
the assistance of appellate counsel appointed by the trial court, and reinstated
his appeal. See Allen v. State, 959 N.E.2d 343 (Ind. Ct. App. 2011), trans. denied.
We later affirmed his convictions on direct appeal. See Allen v. State, 994
N.E.2d 316 (Ind. Ct. App. 2013).
[4] On March 27, 2015, Allen filed a verified petition for writ of habeas corpus in
the Madison Circuit Court alleging that “[b]ecause the June 17, 2011 grant of
the Petitioner’s Indiana Post Conviction Rule 1 Petition has caused the
Petitioner to be releaved [sic] of the commitment to serve in Respondent’s
custody a sentence for a conviction imposed by the LaPorte County Superior
Court the Restraint of Petitioner is unlawful.” Appellant’s App. p. 12.
[5] It is clear from Allen’s petition that he is attacking the validity of his convictions
and sentence and mistakenly believes that by granting him the opportunity to
pursue a direct appeal this Court has overturned his convictions and sentence.
Such is not the case as his convictions were affirmed on direct appeal. Both
case law and the Rules of Procedure for Post-Conviction Relief support the
Madison Circuit Court’s conclusion that it had jurisdiction to receive the filing
of the petition for writ of habeas corpus, but the petition must then be
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transferred to the court where the petitioner was convicted or sentenced,
LaPorte Superior Court. Ind. Post-Conviction Rule 1(1)(c); Miller v. Lowrance,
629 N.E.2d 846, 847 (Ind. 1994).
Affirmed.
Riley, J., and Pyle, J., concur.
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