Opinion
23A-PL-2482
08-19-2024
Larry D. Blanton, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Larry D. Blanton, Jr. Bloomington, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Frances Barrow Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Henry Circuit Court The Honorable Kit C. Dean Crane, Judge Trial Court Cause No. 33C02-2302-PL-11
APPELLANT PRO SE Larry D. Blanton, Jr. Bloomington, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Frances Barrow Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE.
Case Summary
[¶1] Larry D. Blanton, Jr., pro se, appeals the trial court's dismissal of his complaint for declaratory judgment raising issues related to his credit time as a parolee. We conclude the complaint was an unauthorized successive petition for postconviction relief and dismiss this appeal.
Facts and Procedural History
[¶2] Blanton was convicted in February 2006 of four counts of child molesting and sentenced to 105 years. On direct appeal, he challenged the sufficiency of the evidence and sought revision of his sentence. A panel of this Court affirmed Blanton's convictions but found his sentence was inappropriate and remanded to the trial court to impose a sentence of thirty years. See Blanton v. State, 53A01-0606-CR-226, at *4 (Ind.Ct.App. April 19, 2007) (mem.). The trial court resentenced Blanton as instructed on October 12, 2007. In 2009, Blanton sought post-conviction relief. His petition was denied by the trial court and affirmed on appeal. See Blanton v. State, No. 53A04-1410-PC-509 (Ind.Ct.App. July 27, 2015) (mem.), trans. denied.
[¶3] Blanton's thirty-year sentence expires in 2036. While incarcerated, Blanton earned good time and education credit and was released to parole in 2018. Just over a year after his release, Blanton was arrested for violating his parole. His parole was revoked, and he was ordered to serve the balance of his sentence in the Indiana Department of Correction ("DOC").
[¶4] Since he prevailed on his sentencing issue on direct appeal, Blanton has made "a series of attempts to invalidate his resentencing" or otherwise procure his release from imprisonment. Blanton v. State, No. 22A-CR-3128, at *1 (Ind.Ct.App. Aug. 3, 2023) (mem.). "Each and every time, his attempts have been rebuffed." Id. at *2. In his criminal case, he has filed pro se motions for sentence modification, to correct erroneous sentence, for a new resentencing hearing, for amendment of allegedly incorrect sentencing entries, and for permission to file belated notices of appeal from rulings on some of those motions. He has twice sought permission to file successive post-conviction relief petitions, which this Court declined to grant. He has filed two petitions for writ of habeas corpus since being returned to the DOC after his parole was revoked. Both were treated as unauthorized successive petitions for postconviction relief. And he has appealed many of the rulings against him. See id. at *1 (counting at least six appeals).
[¶5] One of Blanton's appeals is of note in this case. In 2020, Blanton petitioned for a writ of habeas corpus, alleging in part his detention was illegal because "his good time and education credit had been taken from him" arbitrarily when he was released to parole. Blanton v. Sevier, No. 20A-MI-1658, at *1 (Ind.Ct.App. March 12, 2021) (mem.), trans. denied. The trial court summarily dismissed the petition, construing it as an unauthorized successive petition for post-conviction relief. A panel of this Court affirmed, noting Blanton was "actually challenging the legality of his parole revocation and his parole conditions" rather than stating grounds for immediate release from illegal restraint. See id. at *2.
Therefore, Blanton's petition was properly treated as one for post-conviction relief, and because Blanton had already petitioned for post-conviction relief, he needed to-but did not-seek permission to file a successive petition. The panel disagreed with Blanton's claim that "his earned credit time was stripped from him unlawfully when he was released to parole":
Blanton's earned credit time was not taken from him when he was released to parole in May 2018; instead, his earned credit time in conjunction with the time he had served allowed him to be released to parole, and he will continue to accrue earned credit time now that he is incarcerated due to his parole violation. Blanton had the benefit of his credit time when he was released on parole in the first place, and his credit time did not reduce his actual sentence. As a result, Blanton was not deprived of his earned credit time.Id. at *3-4.
[¶6] In 2023, Blanton filed the Complaint for Declaratory Judgment now at issue, alleging when he was released on parole he was "stripped" of over 6,000 days of education and good time credit he had previously earned and claiming Indiana Code Section 35-50-6-1(a)(3) prevented him "from utilizing his accrued time . . . to shorten the length of his incarceration or confinement." Appellant's App. Vol. 2 at 53. He requested judgment declaring Section 35-50-6-1(a)(3) "arbitrary, capricious, and unconstitutional because it allows a probationer to retain and receive the full benefit of all previously earned educational and good time credits to shorten his sentence and denies [Blanton] equal treatment/protection of the laws" under various sections of the Indiana Constitution. Id.
Indiana Code Section 35-50-6-1(a)(3) provides, "[W]hen a person imprisoned for a felony completes the person's term of imprisonment, less the credit time the person has earned with respect to that term, the person shall be . . . released to the committing court if the sentence included a period of probation." Although there is a disparity in the treatment of parolees and probationers, this particular subsection alone does not create or explain the difference. See Garrison v. Sevier, 165 N.E.3d 996, 998-99 (Ind.Ct.App. 2021) ("[T]he probationer who returns to prison [for bad behavior] has the benefit of all credits from his prerevocation incarceration, unlike the parolee.") (citing Ind. Code §§ 35-38-2-3(h), (j) and 35-50-6-1(a), (b)), trans. denied.
[¶7] Defendants moved to dismiss Blanton's complaint under Indiana Trial Rule 12(B)(1) and 12(B)(6). The trial court granted the motion and dismissed Blanton's action with prejudice. Blanton's complaint is an unauthorized successive petition for post-conviction relief.
[¶8] In an apparent attempt to circumvent the results of prior unsuccessful actions regarding his resentencing and credit time, Blanton filed this civil declaratory judgment action. That Blanton has artfully restated his claim in the guise of a declaratory judgment challenging statutory authority does not alter the fact he is ultimately seeking restoration of credit time he claims was stripped from him when he was released to parole. See Blanton, No. 22A-CR-3128, at *2 (noting "[n]o amount of creative re-packaging can disguise the fact that Blanton has already-many times-sought to collaterally attack his sentence"). Not only is Blanton once again pursuing a claim for credit time, but his claim has already been presented in another package and denied. See Sevier, No. 20A-MI-1658, at *3-4.
[¶9] "[A]ll manner of claims of sentencing errors (other than those that do not require consideration of matters outside the face of the sentencing judgment) are addressed via post-conviction relief proceedings." Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008). In Young, the appellant sought educational credit time denied to him by the DOC. The trial court also denied his petition, and a panel of this Court dismissed his appeal as an unauthorized successive petition for post-conviction relief. On transfer, the Supreme Court acknowledged "[t]his is not a typical claim for post-conviction relief" because the appellant was not challenging his conviction or sentence. Id. The Supreme Court nonetheless affirmed the dismissal of the petition, holding "postconviction proceedings are the appropriate procedure for considering properly presented claims for educational credit time" that would not result in immediate release. Id.; see Ellis v. State, 58 N.E.3d 938, 940 n.1 (Ind.Ct.App. 2016) ("[A] petition for postconviction relief is the proper vehicle for raising a credit-time claim after administrative remedies have been exhausted."), trans. denied.
[¶10] In order to present a claim for credit time properly, a petitioner must follow the Indiana Rules of Procedure for Post-Conviction Remedies. Young, 888 N.E.2d at 1256-57. If the petitioner has already filed a petition for post-conviction relief, the petitioner must follow the procedure outlined in Post-Conviction Rule 1(12) for filing a successive petition. See id. at 1257. Post-Conviction Rule 1(12) requires a petitioner to request and obtain permission from the appellate court to pursue a second or successive petition for relief. Blanton has previously petitioned for post-conviction relief, and that petition was litigated to conclusion. See Blanton, No. 53A04-1410-PC-509, at *8; see also Currie v. State, 82 N.E.3d 285, 288 (Ind.Ct.App. 2017) ("A post-conviction petition is not a second or successive petition requiring leave of court unless and until a first petition has been litigated to conclusion."). On multiple occasions since, he has failed to properly request permission from this Court to file a successive postconviction petition but instead presented his claim under a different name. The same is true here.
[¶11] "When a court encounters an improper successive petition for post-conviction relief, it should dismiss the action." Currie, 82 N.E.3d at 287. Accordingly, we dismiss Blanton's appeal as arising from an unauthorized successive petition.
Conclusion
[¶12] Blanton's complaint was an improper successive petition for post-conviction relief, and we dismiss this appeal.
[¶13] Dismissed.
May, J., and Vaidik, J., concur.