MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Jul 18 2017, 9:35 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Paul J. Pacheco                                           Curtis T. Hill, Jr.
New Castle Correctional Facility                          Attorney General of Indiana
New Castle, Indiana
                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul J. Pacheco,                                          July 18, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          33A01-1702-MI-395
        v.                                                Appeal from the Henry Circuit
                                                          Court
Keith Butts, Superintendent of                            The Honorable Kit C. Dean Crane,
the New Castle Correctional                               Judge
Facility,                                                 Trial Court Cause No.
Appellee-Respondent                                       33C02-1611-MI-115




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017               Page 1 of 7
                                                 Case Summary
[1]   Paul J. Pacheco, pro se, appeals the trial court’s summary dismissal of his

      petition for writ of habeas corpus. Finding dismissal proper as a matter of law,

      we affirm.


                                    Facts and Procedural History
[2]   On December 17, 2013, Pacheco was convicted of child molesting and

      sentenced to eight years’ imprisonment, or 2922 days. While imprisoned, he

      accrued 1246 of credit for actual time served, 1246 days of good time credit as a

      Class I offender, and 215 days of educational credit time.1 In sum, Pacheco

      earned 1461 days of credit time in addition to his credit for actual time served.

      Accordingly, he was released on parole on March 3, 2016, after serving only

      1246 days of his sentence.


[3]   After 160 days on parole, on August 10, 2016, Pacheco was arrested on a

      warrant for violating his parole. On September 15, 2016, Pacheco was found

      guilty of violating his parole and ordered to serve the remainder of his sentence

      in prison. At the time Pacheco was arrested, he had 1516 days remaining on

      his sentence. His current projected release date is now September 6, 2018,




      1
       For defendants who committed their offense before July 1, 2014, Indiana Code Section 35-50-6-3(b)
      provides in relevant part that “[a] person assigned to Class I earns one (1) day of good time credit for each
      day the person is imprisoned for a crime or confined awaiting trial or sentencing.”

      Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017                  Page 2 of 7
      based on the assumption that he will serve only half the remaining time on his

      sentence.


[4]   On November 16, 2016, Pacheco filed a pro se petition for writ of habeas

      corpus in the Henry Circuit Court challenging the calculation of his credit time

      and requesting immediate discharge from incarceration. Pacheco named Keith

      Butts, the Superintendent of the New Castle Correctional Facility, as the

      respondent. Specifically, Pacheco claimed that his actual time served plus his

      good time credit and educational credit totaled 2922 days, which is the full term

      of his eight-year sentence. Thus, he argued, he had completed service of his

      sentence and was entitled to immediate discharge as of March 3, 2016. He

      further argued that it was unlawful for the State to place him on parole at that

      time due to his status as a sex offender.


[5]   Butts filed a motion for summary disposition, stating that the petition should be

      treated as a petition for postconviction relief and summarily disposed of, or in

      the alternative, that the trial court should dismiss the petition pursuant to

      Indiana Trial Rule 12(B)(6) without a hearing. Butts argued that credit time is

      used only to calculate an offender’s early release on parole and that it does not

      reduce the fixed term of imprisonment imposed by the trial court. Pacheco

      responded with a cross-motion for summary disposition. Accordingly, the trial

      court treated the petition as one for postconviction relief and entered its order

      summarily dismissing the petition on February 7, 2017. The court concluded

      that Pacheco had already received the benefit of his credit time when he was

      released on parole, that his new release date of September 6, 2018, was

      Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017   Page 3 of 7
      accurate, and that he was not entitled to immediate discharge. This appeal

      ensued.


                                     Discussion and Decision
[6]   We begin by noting that although Pacheco called his petition a writ of habeas

      corpus, it appears that because his petition alleged that his credit time entitled

      him to immediate release from incarceration, he could have alternatively filed

      for relief under the postconviction rules. See Samuels v. State, 849 N.E.2d 689,

      691 (Ind. Ct. App. 2006), trans. denied; see also Ind. Code § 34-25.5-1-1 (“Every

      person whose liberty is restrained, under any pretense whatever, may prosecute

      a writ of habeas corpus to inquire into the cause of the restraint, and shall be

      delivered from the restraint if the restraint is illegal.”); Ind. Post-Conviction

      Rule 1 (1)(a)(5) (providing that a person “who has been convicted of, or

      sentenced for, a crime … who claims that his sentence has expired, his

      probation, parole or conditional release unlawfully revoked, or he is otherwise

      unlawfully held in custody or restraint … may institute at any time a proceeding

      under this Rule to secure relief.”). In considering Pacheco’s petition, the trial

      court treated the petition as one for postconviction relief and entered a

      summary disposition. See Ind. Post-Conviction Rule 1(4)(g). Pacheco does not

      challenge the trial court’s decision to construe his petition as one for

      postconviction relief. Where as here, neither party claims that the trial court

      erred by treating a writ of habeas corpus as a petition for postconviction relief,

      we will proceed to address the merits of the case. Mills v. State, 840 N.E.2d 354,

      357 (Ind. Ct. App. 2006).

      Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017   Page 4 of 7
[7]   Our supreme court has explained our standard of review as follows:


              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. 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.


      Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008).


[8]   Indiana Code Section 35-50-6-1(d) provides in relevant part, “[w]hen a sex

      offender (as defined in IC 11-8-8-4.5) completes the sex offender’s fixed term of

      imprisonment, less credit time earned with respect to that term, the sex offender

      shall be placed on parole for not more than ten (10) years.” An offender

      “released on parole remains on parole from the date of release until the person’s

      fixed term expires, unless the person’s parole is revoked or the person is

      discharged from that term by the parole board.” Ind. Code § 35-50-6-1(b). An

      offender “whose parole is revoked shall be imprisoned for all or part of the

      remainder of the person’s fixed term.” Ind. Code § 35-50-6-1(c).


[9]   In asserting his entitlement to immediate discharge, Pacheco argued that his

      accrued time (1246 days), good time credit (1461 days), and educational credit

      (215 days) equaled 2922 days, the entirety of his fixed term of imprisonment.

      Thus, he claims that he was entitled to immediate discharge as of March 3,

      2016, rather than release on parole because he “had no time remaining on his

      sentence.” Reply Br. at 4. He is mistaken. It is well settled that credit time

      does not reduce a defendant’s sentence; instead, all credit time is subtracted
      Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017   Page 5 of 7
       from the defendant’s release date. Randolph v. Buss, 956 N.E.2d 38, 41 (Ind. Ct.

       App. 2011) (citing Miller v. Walker, 655 N.E.2d 47, 48 n.3 (Ind. 1995)), trans.

       denied. Release on parole is distinguished from discharge after service of a fixed

       term. Boyd v. Broglin, 519 N.E.2d 541, 542 (Ind. 1988). In other words, credit

       time is earned toward release on parole, and it does not diminish the fixed term

       imposed by the sentencing court or affect the date on which a felony offender

       will be discharged. Id.


[10]   Contrary to Pacheco’s assertion, he was not entitled to immediate discharge as

       of March 3, 2016, rather than being released to parole. Pacheco’s credit time

       was applied to permit him to be released on parole after serving only half his

       eight-year sentence. When his parole was revoked, he was properly assessed

       the amount of the fixed term which remained on his sentence, or 1516 days.2

       His new projected release to parole date was calculated as September 6, 2018,

       which presumes that, as a Class I offender, he will serve only half that

       remaining time due to newly earned credit time. We conclude that Pacheco

       was not and is not entitled to immediate discharge.


[11]   Pacheco further maintains that the Indiana Department of Correction

       (“IDOC”) was prohibited from releasing him on parole in the first place

       because he is a convicted sex offender. To support his argument, Pacheco relies

       on Indiana Code Section 11-10-8-2(b)(2), which provides that sex offenders are



       2
         Pacheco had accrued time served of 1406 days (1246 days served prior to his release on parole and 160 days
       served on parole).

       Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017              Page 6 of 7
       not eligible to participate in certain minimum security release programs

       provided by the IDOC. Pacheco appears to conflate parole with certain

       correctional services and programs provided to offenders who are still in the

       custody of the IDOC. Pacheco directs us to no relevant statutory authority, as

       there is none, that prohibited him from being released on parole even though he

       is a convicted sex offender. We affirm the trial court’s order summarily

       dismissing Pacheco’s petition.3


[12]   Affirmed.


       Baker, J., and Barnes, J., concur.




       3
         On June 19, 2017, Pacheco submitted “Additional Information” to this Court in an attempt to raise an
       additional issue that was never presented to the trial court nor addressed in his appellant’s brief or reply brief.
       Thus, we decline to address the issue. See Chupp v. State, 830 N.E.2d 119, 125 (Ind. Ct. App. 2005)
       (defendant forfeited right to raise additional issue that was available but not addressed in appellant’s brief or
       reply brief); see also Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct. App. 2002) (failure to raise issue before
       trial court waives right to raise issue on appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017                    Page 7 of 7
