David Frohwerk v. Mark Levenhagen

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
FILED
Jan 22 2013, 8:48 am
judicata, collateral estoppel, or the law
of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE:
DAVID FROHWERK
Westville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID FROHWERK, )
)
Appellant, )
)
vs. ) No. 46A04-1204-MI-211
)
MARK LEVENHAGEN, )
)
Appellee. )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Thomas Alevizos, Judge
Cause No. 46C01-1203-MI-102
January 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
David Frohwerk, pro se, appeals from the denial of his Verified Petition for Writ
of Habeas Corpus asserting that he was denied credit time. Frohwerk raises one issue
which we revise and restate as whether the court abused its discretion in denying his
petition. We affirm.
The relevant facts follow. On March 16, 2012, Frohwerk, an inmate at the
Westville Correctional Facility in LaPorte County, filed his Verified Petition for Writ of
Habeas Corpus pursuant to Ind. Code § 34-25.5-1-1 in which he stated:
b) executive directive #11-41 (July 27, 2011) – entitles David
Frohwerk #985446 (“Frohwerk”) – to approximately 1,095 days
(Credit Class III, Time Served Credits) – for the time Frohwerk
served on probation under St. Joseph County Superior Court Cause
No. 71D04-9512-CF-576 (“CF 576”);[1] and
c) executive directive #11-41 (July 27, 2011) – entitles Frohwerk to
approximately 1,825 days (Credit Class III, Time Served Credits) –
for the time Frohwerk served on probation under St. Joseph County
Superior Court Cause No. 71D03-9710-CF-466 (“CF 466”);[2] and
d) Neither the I.D.O.C[.] or the respondent – will apply these time
served credits pursuant to executive directive # 11-41 (July 27,
2011) – despite grievances and appeals taken from the
forementioned [sic] denials.
Frohwerk has exhausted all available administrative remedies.
Appellant’s Appendix at 7-8. Frohwerk’s petition also stated that his rights under the
Eighth Amendment to the U.S. Constitution and Sections 16, 18, and 37 of Article 1 of
the Indiana Constitution were violated due to his continued incarceration and that he “is
1
The record does not contain information pertaining to the conviction, sentence, or time served
under CF 576.
2
The record does not contain information pertaining to the conviction, sentence, or time served
under CF 466.
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entitled to the time served credits” stemming from a “legitimate liberty interest [which]
was created by executive directive #11-41 . . . .” Id. at 8. On March 27, 2012, the court
denied Frohwerk’s petition.
Before addressing Frohwerk’s arguments, we observe that although he is
proceeding pro se, such litigants are held to the same standard as trained counsel and are
required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
2004), trans. denied. This court will not “indulge in any benevolent presumptions on
[their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal.”
Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 689 (Ind. Ct. App. 2009), reh’g
denied, trans. denied (citation omitted).
We also observe that the State elected not to file a brief in this matter. When an
appellee fails to submit a brief, we do not undertake the burden of developing appellee’s
arguments, and we apply a less stringent standard of review, that is, we may reverse if the
appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct.
App. 2006). This rule was established so that we might be relieved of the burden of
controverting the arguments advanced in favor of reversal where that burden properly
rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).
Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d
337, 339 (Ind. Ct. App. 2008).
The issue is whether the court abused its discretion in denying Frohwerk’s petition
for writ of habeas corpus. Ind. Code § 34-25.5-1-1 states: “Every person whose liberty is
restrained, under any pretense whatever, may prosecute a writ of habeas corpus to inquire
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into the cause of the restraint, and shall be delivered from the restraint if the restraint is
illegal.” “The purpose of the writ of habeas corpus is to bring the person in custody
before the court for inquiry into the cause of restraint.” Partlow v. Superintendent,
Miami Correctional Facility, 756 N.E.2d 978, 980 (Ind. Ct. App. 2001) (quoting O’Leary
v. Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941)); see also Hardley v. State, 893
N.E.2d 740, 742 (Ind. Ct. App. 2008) (“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.”). “One is entitled to
habeas corpus only if he is entitled to his immediate release from unlawful custody.”
Partlow, 756 N.E.2d at 980 (quoting Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d
496, 498 (1978)); see also Dunn v. Jenkins, 268 Ind. 478, 479-480, 377 N.E.2d 868, 870-
871 (1978) (“[A] prisoner can only obtain a discharge through habeas corpus relief, not a
modification of his commitment.”); Hardley, 893 N.E.2d at 742 (“A defendant is entitled
to a writ of habeas corpus if he or she is unlawfully incarcerated and is entitled to
immediate release.”). “[A] petitioner may not file a writ of habeas corpus to attack his
conviction or sentence.” Partlow, 756 N.E.2d at 980 (citing Hawkins, 268 Ind. at 140,
374 N.E.2d at 498 (citing Ind. Post-Conviction Rule 1(1)(c)) (stating that a writ of habeas
corpus that attacks a conviction or sentence must be transferred to the court of conviction
and treated as though filed as a post-conviction relief petition))). We review the trial
court’s habeas decision for an abuse of discretion. Hardley, 893 N.E.2d at 742. Without
reweighing the evidence, this court considers only that evidence most favorable to the
judgment and reasonable inferences drawn therefrom. Id.
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Frohwerk argues “that he is entitled to credit for days served on probation, as it is
Community Corrections/Court supervision or put another way – RESTRAINT upon his
liberty by the judicial branch of the State government.” Appellant’s Brief at 3-4.
Specifically, Frohwerk claims that under Executive Directive #11-41 (“ED 11-41”), he is
entitled to approximately 600 days of credit for time served. Frohwerk requests his
“immediate release from approx. six hundred (600) days of illegal restraint put upon him
by the respondent and the Indiana Department of Corrections’ [sic] refusal to apply
‘TIME SERVED CREDIT’ for the days that [he] served on probation.” Id. at 5.
Frohwerk attached in his appellant’s appendix a copy of ED 11-41 which is a
directive issued on June 27, 2011, by the Department of Correction presenting “several
revisions to the administrative procedures for Policy 01-04-101, ‘Adult Offender
Classification,’ and its appendices.” Appellant’s Appendix at 60. The first page of ED
11-41 states that “[t]hese changes are applicable to all facilities housing adult offenders . .
. .” Id. Frohwerk specifically directs our attention to Section L, paragraph 3 of the
revised Policy 01-04-101 which states:
L. Credit Time Calculation
1. An offender receives incarceration credit, and credit time on
the sentence for the day of release from a Department facility
to parole or court jurisdiction.
2. When an offender’s parole is revoked, and the offender is
returned to Department incarceration, the remaining time to
be served is calculated by determining a revised fixed term of
incarceration. The following formula is applied:
FTI = FTI - Time + Time on
revised prior served parole
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3. An offender does not receive time served credit, or credit time
on his/her sentence for the day the offender:
a. Escapes.
b. Absconds from parole or probation.
Id. at 92-93.
ED 11-41 and Policy 01-04-101 govern the treatment of prisoners of the
Department of Correction. This court has previously noted that defendants often “blur []
the distinction between parole and probation.” Harris v. State, 762 N.E.2d 163, 167 (Ind.
Ct. App. 2002), reh’g denied, trans. denied. Probation is “[a] court-imposed criminal
sanction that, subject to stated conditions, releases a convicted person into the community
instead of sending the criminal to jail or prison.” Id. (emphasis added). A probationer
“specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Id.(quoting Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006)). On the other
hand, parole is “[t]he release of a prisoner from imprisonment before the full sentence has
been served.” Id. Thus, there is an important distinction between the two in that
“‘[p]robation’ relates to judicial action taken before the prison door is closed, whereas
‘parole’ relates to executive action taken after the door has closed on a convict.” Id.(emphases added).
Frohwerk does not cite to authority for the proposition that ED 11-41 should be
applied to time served while on probation. Nor do we believe that such a result is
warranted. Indeed, Ind. Code § 35-38-2-3(g), which governs a court’s power to revoke
probation following a finding of a probation violation, specifically provides that the court
may impose sanctions including ordering the “execution of all or part of the sentence that
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was suspended at the time of initial sentencing.” (Emphases added). We conclude that
Frohwerk’s arguments have no merit, and accordingly the court did not abuse its
discretion in denying Frohwerk’s petition.3
For the foregoing reasons, we affirm the trial court’s denial of Frohwerk’s
Verified Petition for Writ of Habeas Corpus.
Affirmed.
3
To the extent that Frohwerk’s arguments suggest that he is entitled to “credit time,” rather than
credit for time served while on probation, we observe that Section I of Policy 01-04-101, titled “Credit
Time and Incarceration Factors,” states the following:
4. Parole
a. The day a felon offender is released to parole, counts as a day of
incarceration. The offender receives credit time in accordance with the
credit class to which he/she is assigned.
b. Each day that the offender serves on parole, counts as a day served on
the sentence. The offender earns no credit time while on parole.
c. A parolee incarcerated under a parole violation warrant shall earn time
served and applicable earned credit time from the date of service of the
warrant.
Id. at 90-91 (emphasis added). Thus, both Sections L.1 and I.4.a merely provide that on the day that an
offender is released, he/she also earns a day of credit time. At no point, however, does Policy 01-04-101
provide that parolees are entitled to credit time and indeed, Section I.4.b specifically provides that persons
on parole do not earn credit time. This is in accordance with Ind. Code § 35-50-6-6 which provides:
(a) A person imprisoned for a crime earns credit time irrespective of the degree of
security to which he is assigned. Except as set forth under IC 35-38-2.5.-5, a
person does not earn credit time while on parole or probation.
(b) A person imprisoned upon revocation of parole is initially assigned to the same
credit time class to which he was assigned at the time he was released on parole.
(c) A person who, upon revocation of parole, is imprisoned on an intermittent basis
does not earn credit time for the days he spends on parole outside the institution.
(Emphases added). Ind. Code § 35-38-2.5.-5 provides, in subsection (e), that “[a] person confined on
home detention as a condition of probation earns credit for time served.” This court has observed that
defendants who are in a work release program may earn credit time. Reed v. State, 844 N.E.2d 223, 225
(Ind. Ct. App. 2006). Frohwerk does not suggest that either of these exceptions apply to his case.
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BAILEY, J., and VAIDIK, J., concur.
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