Opinion
23A-PC-3144
07-30-2024
Levi Williams, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Levi Williams Indiana State Prison Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Evan Matthew Comer 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Superior Court The Honorable Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-2308-PC-21
APPELLANT PRO SE Levi Williams Indiana State Prison Michigan City, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Evan Matthew Comer Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] Levi Williams, pro se, appeals the denial of his petition for post-conviction relief (PCR). We affirm.
Facts and Procedural History
[¶2] Williams was on probation for a level 4 felony arson conviction in cause number 71D03-1510-F4-74 when he was arrested and charged with level 6 felony counterfeiting in cause number 71D03-1906-F6-563. Williams agreed to plead guilty to the counterfeiting charge and admit to violating his probation. At a hearing on March 2, 2020, the trial court accepted the plea, sentenced Williams to eighteen months in the Indiana Department of Correction (IDOC) on the counterfeiting conviction, revoked his probation in the arson case, and ordered him to serve five years in the IDOC for that offense. According to the hearing transcript, the trial court stated, "In the newer case, 1906-F6-563, that will be consecutive to 1510-F4-74, and that will be treated as a felony.... Any sentences will be consecutive to whatever sentence you receive in Elkhart." Tr. Vol. 2 at 19. The trial court's written sentencing order reads, "Sentences in 71D03-1906-F6-000563 and 71D03-1510-F4-000074 are consecutive to each other and consecutive to sentence out of Elkhart County." Appellant's App. Vol. 2 at 37.
[¶3] On August 4, 2023, Williams filed a pro se PCR petition that reads in pertinent part,
When the petitioner was delivered up to the IDOC Reception &Diagnostic Center (RDC) subsequent to sentencing. The Official(s) working for the IDOC failed to enter in the sentence(s) in their proper order. Crediting time toward the sentence imposed in 71D03-1906-F6-563 first before the sentence imposed in 71D03-1510-F4-74. This is structurally and fundamentally wrong in re: to the laws of this State (Ind. Code § 35-50-1-2(e)) and recent case precedent which guides the application of not only sentence(s) and their proper order, but the eventual result that when sentence(s) are misaligned, that proper credit time will be misapplied as well.Appellant's App. Vol. 2 at 14 (citing Paul v. State, 177 N.E.3d 472 (Ind.Ct.App. 2021)) (italics and underlining omitted).
Paul states in pertinent part,
Just as the trial court generally lacks discretion with respect to the calculation and allocation of credit time, see Roberts [v. State, 998 N.E.2d 743, 747 (Ind.Ct.App. 2013)], the trial court is also bound by Indiana Code Section 35-50-1-2(e), which requires consecutive sentences when a person "commits another crime ... before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime[.]" Consecutive sentences are "sentences ... to be served in sequence." Consecutive Sentences, Black's Law Dictionary (11th ed. 2019). Moreover, a sequence is a "chronological succession." Webster's Third New Int'l Dictionary 2071 (2002). Thus, when the trial court imposes consecutive sentences, those sentences must be served in a chronological succession.177 N.E.3d at 476.
[¶4] The State filed a motion for summary disposition. On October 30, 2023, the post-conviction court granted the motion in an order that states,
5. Petitioner's sentences under Cause Nos. 71D03-1906-F6-000564 [sic] and 71D03-1510-F4-000074 are to be served consecutively.
6. Petitioner also must serve sentences with the Indiana Department of Corrections following convictions for Stalking in
2020 and Battery in 2022.
7. As such, his ultimate projected release date from IDOC is unchanged as to the sentences imposed by this court.
8. There have been no errors as to Petitioner's sentences or credit time, and he is entitled to no relief in this matter.Id. at 42. Williams filed a motion to correct error, to which he attached a document relating to an IDOC "classification appeal" that he signed on October 6, 2023, more than two months after he filed his PCR petition. Appellant's App. Vol. 2 at 63. The post-conviction court denied Williams's motion, and this appeal ensued.
Discussion and Decision
[¶5] Williams argues that the post-conviction court erred in denying his PCR petition. "Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence." Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citing Ind. Post-Conviction Rule 1(5)). "Post-conviction procedures do not afford the convicted an opportunity for a 'super appeal.'" Diaz v. State, 753 N.E.2d 724, 727 (Ind.Ct.App. 2001) (quoting Matheney v. State, 688 N.E.2d 883, 890 (Ind. 1997), cert. denied (1999)), trans. denied. "Rather, they create a narrow remedy for subsequent collateral challenges to convictions and sentences, challenges that must be based on grounds enumerated in the post-conviction rules." Id. (citing, inter alia, Ind. Post-Conviction Rule 1). "An appellate court reviews the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a motion for summary judgment." Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). "Thus summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact." Id. (italics omitted).
Williams asserts that the post-conviction court's ruling is fundamental error. It is well settled that "[t]he fundamental error doctrine is not applicable in post-conviction proceedings." Boesch v. State, 778 N.E.2d 1276, 1281 (Ind. 2002).
"Those grounds are limited to 'issues that were not known at the time of the original trial or that were not available on direct appeal.'" Wilkes, 984 N.E.2d at 1240 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied (2002)). The State asserts, "While the trial court's sentencing order mentions a plea agreement, it is unclear whether that agreement contained an appeal waiver. The plea agreement was not filed with the trial court and has not been submitted as part of the record in this case." Appellee's Br. at 12 n.3. The transcript of the plea hearing indicates that the plea agreement did contain an appeal waiver. See Tr. Vol. 2 at 11 (trial court advising Williams: "You are also giving up the right to appeal your conviction. You're also giving up the right to appeal your sentence as long as I follow the terms of the plea agreement.").
[¶6] The State points out, and Williams does not deny, that he failed to exhaust his administrative remedies with the IDOC before he filed his PCR petition.Accordingly, Williams is not entitled to relief as a matter of law. See Members v. State, 851 N.E.2d 979, 983 (Ind.Ct.App. 2006) (noting that IDOC is responsible for post-sentencing credit-time determinations and that defendant must "exhaust all of his administrative remedies with the [IDOC] before resorting to the judicial system"). Therefore, we affirm.
The abovementioned document that Williams attached to his motion to correct error indicates that his administrative appeal was based on an alleged double jeopardy violation and not on an alleged violation of Indiana Code Section 35-50-1-2(e).
One of the cases that the State cites for this proposition has not yet been certified and is currently pending on transfer before our supreme court. See Clear v. State, 232 N.E.3d 1186 (Ind.Ct.App. 2024), trans. pending. Questions of exhaustion aside, we note that Williams has failed to "show his work" in his original brief to support his assertion that the IDOC's alleged error adversely affected his credit time.
[¶7] Affirmed.
Bradford, J., and Tavitas, J., concur.