Steven McIntyre v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 28 2012, 9:47 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
STEPHANIE L. ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN MCINTYRE, )
)
Appellant-Petitioner, )
)
vs. ) No. 28A04-1207-PC-377
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Erik C. Allen, Judge
Cause No. 28C01-1110-PC-39
December 28, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
The appellant in this case, Steven McIntyre, is appealing the post-conviction
court’s grant of the State’s motion to correct error regarding McIntyre’s request for credit
time stemming from his completion of a high school diploma from Cornerstone Christian
Correspondence School (Cornerstone), while he was incarcerated in the Indiana
Department of Correction (DOC). Because it was established that Cornerstone’s
standards of instruction are not substantially similar to those in Indiana, McIntyre is not
entitled to credit time. Thus, we affirm the post-conviction relief court’s judgment in
granting the State’s motion to correct error and deny McIntyre’s request for relief.
FACTS
McIntyre is currently incarcerated at the Putnamville Correctional Facility
(Putnamville) serving a ten-year sentence for robbery,1 a class B felony, with an earliest
possible release date of February 5, 2014.
On October 26, 2011, McIntyre filed a pro se petition for post-conviction relief,
seeking educational credit time for a high school diploma that he earned from
Cornerstone. Included in McIntyre’s documentation was a response from the DOC,
explaining that it did “not recognize Cornerstone as an accredited school; therefore, there
can not (sic) be any reduction in credit time awarded by the Indiana Department of
Correction.” Id. at 18.
On January 25, 2012, McIntyre, by counsel, filed an amended petition for post-
conviction relief, claiming in part that:
1
Ind. Code § 35-50-2-5.
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a. Mr. McIntyre was denied credit time in violation of I.C.§35-50-6-3.3, the
Fourteenth Amendment to, and Article I, §9 of, the United States
Constitution and Article I, §24 of the Indiana Constitution in that an ex post
facto regulation was promulgated as to him.
Further allegations were that
a. Mr. McIntyre received his High School Diploma from Cornerstone
Christian Correspondence School, a school accredited by Accrediting
Commission International, on March 16, 2010;
b. As of August 24, 2010, the Indiana Department of Correction no longer
recognized Cornerstone Christian Correspondence School as an accredited
school, therefore Mr. McIntyre was denied credit time for which he
otherwise would have been eligible, was denied;
c. The effect of DOC’s refusal to recognize Cornerstone Christian
Correspondence School after Mr. McIntyre received his High School
Diploma, was retroactive.
Appellant’s App. p. 32.
On February 8, 2012, the State indicated that it did not object to McIntyre’s
request for relief. Thus, McIntyre’s petition for post-conviction relief was granted.
Thereafter, the State filed a motion to correct error, stating in part that:
2. [The] DOC is the proper party to respond to McIntyre’s request for
educational credit time. Indiana Dept. of Correction v. Haley, 928 N.E.2d
840, 847 (Ind. Ct. App. 2010). DOC was not made aware of this case until
after the Court’s February 8, 2012 Order; and therefore, DOC has not been
given a meaningful opportunity to respond.
3. The standard instruction for earning a degree at Cornerstone Christian
Correspondence School is not substantially equivalent to those of public
high schools located in the state of Indiana. McGee v. State, 790 N.E.2d
31067. Therefore, McIntyre is not entitled to any credit time for his diploma
from Cornerstone Christian Correspondence School.
Appellant’s App. p. 62-63. Thereafter, the post-conviction court granted the State’s
motion to correct error and denied McIntyre’s request for relief. It was determined that
“McIntyre is not entitled to credit time for his alleged high school diploma through
Cornerstone Christian Correspondence School as Cornerstone’s standard of instruction is
not substantially similar to those in Indiana. McGee v. State, 790 N.E.2d 1067, 1070
(Ind. Ct. App. 2003).” McIntyre now appeals.
DISCUSSION AND DECISION
I. Standard of Review
We initially observe that a trial court has wide discretion when ruling on a motion
to correct error. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind. Ct. App. 2000). We have
observed that only when a trial court has abused its discretion will we reverse a decision.
Id. “An abuse of discretion will be found when the trial court’s action is against the logic
and effect of the facts and circumstances before it and the inferences which may be
drawn therefrom” or the trial court’s decision “is without reason or is based upon
impermissible reasons or considerations.” Id.Moreover, we note that the post-conviction court treated McIntyre’s request for
credit time as a petition for post-conviction relief which may be decided by summary
disposition on the pleadings. Ind. Post-Conviction Rule 4(f) and 9(g); Diaz v. State, 753
N.E.2d 724, 727 (Ind. Ct. App. 2001). The standard for reviewing a grant of summary
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judgment is well established. The plaintiff in the case must demonstrate that the trial
court erroneously determined that there was no genuine issue of material fact and that
defendant was entitled to judgment as a matter of law. Voit v. Allen Cnty., 634 N.E.2d
767, 768 (Ind. Ct. App. 1994). In Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008),
our Supreme Court approved post-conviction proceedings brought to address credit time
questions.
II. McIntyre’s Claims
In addressing McIntyre’s contentions that he should have been afforded credit
time for earning a high school diploma at Cornerstone, we note that Indiana Code Section
35-50-6-3.3 provides a framework for awarding credit time to offenders based on
completion of specific programs and maintaining certain requirements. The statute
authorizes specific awards of credit time when: 1) the offender is in credit Class I; 2) the
offender has demonstrated a pattern consistent with rehabilitation; and 3) the offender
successfully completes requirements to obtain one of a number of educational awards.
Ind. Code § 35-50-6-3.3(a) and (b).
In this case, McIntyre did not prove that he was in Credit Class I or that he had
demonstrated a pattern of behavior consistent with rehabilitation. Also, while McIntyre
asserted that his high school diploma from Cornerstone qualified as a high school
diploma under Indiana Code section 35-50-6-3.3(a), it does not.
In pertinent part, Indiana Code section 35-50-6-3.3(n), provides that
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For a person to earn credit time under subsection (a)(3)(B) for successfully
completing the requirements for a high school diploma through
correspondence courses, each correspondence course must be approved by
the department before the person begins the correspondence course. The
department may approve a correspondence course only if the entity
administering the course is recognized and accredited by the department of
education in the state where the entity is located.
Indeed, while the high school from which a diploma is received does not have to
be an Indiana high school it must, by statute, have standards as high as those in Indiana as
determined by the Indiana Superintendent of Public Instruction. McGee v. State, 790
N.E.2d 1067, 1070 (Ind. Ct. App. 2003). In McGee, we cited the provisions of Indiana
Code section 20-12-21-3(3), 2 and observed that
“Approved secondary school” means a public high school located in the
state and any school, located in or outside the state, that in the judgment of
the superintendent provides a course of instruction at the secondary level
and maintains standards of instruction substantially equivalent to those of
public high schools located in the state.
Id. We then noted that “the statute does not preclude a person from earning credit time
for a diploma granted by an out-of-state school as long as the standards of instruction for
earning that diploma are substantially similar to those in Indiana.” Id.We reiterated this determination in Glass v. Wrigley, 899 N.E.2d 652, 654 (Ind.
Ct. App. 2008), concluding that in order to receive educational credit time for receiving a
high school diploma from an out-of-state school, Glass was required to demonstrate that
“the standard[s] of instruction at the school were substantially similar to those in
2
Pursuant to P.L. 2-2007 section 390, Ind. Code § 20-12-21-2 was repealed and replaced by Ind.
Code § 21-7-13-6.
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Indiana.” The school in Glass did not satisfy Indiana requirements because there was not
a proctoring of exams or an ISTEP examination. Glass also failed to demonstrate that the
school was accredited by any government organization. Id.Indiana requires a graduation qualifying examination that does not exist at
Cornerstone. See Ind. Code §§ 20-18-2-6; 20-32-2-2; 20-32-4-1; and 20-32-5-1 to 20-32-
5-6. Also, Cornerstone’s course of instruction has not been shown to include a final
examination that is equivalent to Indiana’s ISTEP testing prior to awarding high school
diplomas.
In sum, Cornerstone does not satisfy Indiana standards and is not currently
accredited. Therefore, the trial court properly granted the State’s motion to correct error,
thus denying McIntyre’s petition for educational credit time.3
The judgment of the post-conviction court is affirmed.
BARNES, J., and RILEY, J., concur.
3
As an aside, we note that McIntyre also challenged the propriety of the Indiana Attorney General’s
(Attorney General) ability to participate in these proceedings. Contrary to McIntyre’s claims, the
Attorney General’s office derives its authority to represent the DOC in various matters from Indiana Code
sections 4-6-1-6 and 4-6-2-1. In Glass, it was determined that the Attorney General was the proper party
to appear for the superintendent of the DOC when the offender was appealing the denial of educational
credit time for a high school diploma from an out-of-state facility. 899 N.E.2d at 655 n.1.
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