Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Jul 21 2014, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT, PRO SE:                                  ATTORNEYS FOR APPELLEE:

TIMOTHY E. STROWMATT                                GREGORY F. ZOELLER
New Castle, Indiana                                 Attorney General of Indiana

                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY E. STROWMATT,                               )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 71A03-1402-PC-70
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable John M. Marnocha, Judge
                               Cause No. 71D02-1401-PC-4


                                          July 21, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       Timothy E. Strowmatt (“Strowmatt”), pro se, appeals the trial court’s order

dismissing his petition for writ of state habeas corpus.

       We affirm.

                                           ISSUE

       Whether the trial court erred by treating Strowmatt’s habeas corpus petition
       as a petition for post-conviction relief and dismissing it as an unauthorized
       successive post-conviction petition.

                                          FACTS

       In December 2004, Strowmatt had a bench trial before the St. Joseph Superior

Court and was convicted of two counts of Class C felony attempted criminal confinement

and found to be an habitual offender. The trial court sentenced Strowmatt to an aggregate

term of twenty-eight years (i.e., consecutive terms of eight (8) years for each conviction

with Count I enhanced by twelve (12) years for his habitual offender determination).

       Thereafter, Strowmatt filed a direct appeal, and we affirmed his convictions in

September 2005. See Strowmatt v. State, 71A03-0501-CR-22 (Ind. Ct. App. Sept. 9,

2005), trans. denied. Strowmatt later filed a petition for post-conviction relief, which the

post-conviction court denied.     Upon appeal, this Court affirmed the denial of post-

conviction relief to Strowmatt in June 2010. See Strowmatt v. State, 71A05-0910-PC-

587 (Ind. Ct. App. June 18, 2010), trans. denied.

       On July 26, 2013, Strowmatt, who is incarcerated in Henry County, filed a petition

for writ of state habeas corpus with the Henry Circuit Court. In his petition, Strowmatt

alleged that he was “illegally confined at the New Castle Correctional Facility under an

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illegal and erroneous sentence[.]” (App. 13). Strowmatt alleged that the trial court

should order his “immediate release” based on the following allegations of sentencing

errors: (1) his two attempted criminal confinement convictions constituted a “single

episode of criminal conduct” and the trial court should have sentenced him pursuant to

INDIANA CODE § 35-50-1-2(c); (2) the trial court exceeded its authority by sentencing

him to the statutory maximum sentence of eight years for each attempted criminal

confinement conviction “without submitting the facts to a jury[;]” and (3) the trial court

erred in sentencing him to consecutive sentences because it failed to “explain its

reason(s)” for imposing consecutive sentences. (App. 13).

       On July 30, 2013, the Henry Circuit Court determined that Strowmatt’s petition

was improperly attacking the validity of his convictions and sentence and should be

treated as a post-conviction petition. The Henry Circuit Court then transferred the matter

to the St. Joseph Superior Court. On January 22, 2014, the St. Joseph Superior Court

entered an order dismissing Strowmatt’s habeas corpus petition after determining that it

was an unauthorized successive post-conviction petition. Strowmatt now appeals.

                                        DECISION

       Strowmatt argues that the trial court erred by treating his habeas corpus petition as

a post-conviction petition and dismissing it as an unauthorized successive post-conviction

petition.

       INDIANA CODE § 34–25.5–1–1 provides that “[e]very 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

                                              3
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)), superseded by statute on other

grounds as stated in Paul v. State, 888 N.E.2d 818 (Ind. Ct. App. 2008), trans. denied.

“One is entitled to habeas corpus only if he is entitled to his immediate release from

unlawful custody.” Id. (quoting Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496,

498 (1978)). “[A] petitioner may not file a writ of habeas corpus to attack his conviction

or sentence.” Id. When a petitioner files a habeas corpus petition challenging the

validity of his conviction or sentence, Indiana Post-Conviction Rule 1 provides that such

a petition shall be “transfer[ed] . . . to the court in which the conviction took place” and

treated as a petition for post-conviction relief. Ind. Post-Conviction Rule 1(1)(c). See

also Partlow, 756 N.E.2d at 980 (explaining that “a petitioner must file a petition for

post-conviction relief in the court of conviction (rather than a petition for a writ of habeas

corpus in the court in the county of incarceration) when he attacks the validity of his

conviction or sentence and/or does not allege that he is entitled to immediate discharge”),

(citing Ind. Post–Conviction Rule 1).

       Here, while Strowmatt asserted in his habeas corpus petition that he was entitled to

immediate release, it is clear that his petition is challenging the validity of his sentence.

Indeed, in his appellate brief, Strowmatt asserts that either the Henry Circuit Court or the

St. Joseph Superior Court “could [have] correct[ed] the sentencing error(s) as raised.”

(Strowmatt’s Br. at 5). Because Strowmatt’s petition challenges the validity of his

                                               4
sentence, the trial court properly treated it as a post-conviction petition and transferred it

to the St. Joseph Superior Court where he was convicted and sentenced. See, e.g., Miller

v. Lowrance, 629 N.E.2d 846, 847 (Ind. 1994) (explaining that a petitioner’s habeas

corpus petition challenging the validity of his conviction and sentence fell within the

parameters of Post-Conviction Rule 1(1)(c), which required the trial court to transfer the

petition to court where he was convicted and sentenced), reh’g denied; Martin v. State,

901 N.E.2d 645, 647 (Ind. Ct. App. 2009) (holding that the petitioner’s habeas corpus

petition that challenged his convictions and sentence was required to be transferred to the

court where he was convicted and sentenced).

       The trial court also properly dismissed Strowmatt’s petition as an unauthorized

successive post-conviction petition. Our Indiana Supreme Court has explained that when

a petitioner’s post-conviction “petition is not the first for post-conviction relief a

petitioner has filed, that petitioner must follow the procedure outlined in P-C.R. 1(12) for

filing successive petitions.” Young v. State, 888 N.E.2d 1255, 1257 (Ind. 2008). Under

Post-Conviction Rule 1(12), a petitioner must file, with the Clerk of the Indiana Supreme

Court and Indiana Court of Appeals, a petition seeking permission to file a successive

post-conviction petition as well as a proposed successive petition for post-conviction

relief. See P-C.R. l(12)(a). If a petitioner establishes a “reasonable possibility that [he] is

entitled to post-conviction relief,” this Court will authorize the filing of the successive

post-conviction petition, which is then filed in the court where the petitioner’s first post-

conviction relief petition was adjudicated. See P-C.R. l(12)(b), (c).



                                              5
      Here, Strowmatt has already filed a petition for post-conviction relief, and this

Court affirmed the denial of that petition. Thus, upon receiving Strowmatt’s habeas

corpus petition and treating it as a post-conviction petition, the trial court properly

dismissed Strowmatt’s petition as an unauthorized successive petition. See State ex rel.

Woodford v. Marion Superior Court, 655 N.E.2d 63, 66 (Ind. 1995) (affirming the trial

court’s dismissal of a successive post-conviction petition where the petitioner had not

been given persmission to file the petition). Accordingly, we affirm the trial court’s

dismissal of Strowmatt’s petition.

      Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




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