MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Apr 22 2020, 10:52 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Nathan Hummel                                             Curtis T. Hill, Jr.
Westville, Indiana                                        Attorney General of Indiana

                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan Hummel,                                            April 22, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-MI-3091
        v.                                                Appeal from the LaPorte Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas J.
Appellee-Respondent.                                      Alevizos, Judge
                                                          Trial Court Cause No.
                                                          46C01-1912-MI-2857



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-3091 | April 22, 2020                     Page 1 of 5
                                        Statement of the Case
[1]   Nathan Hummel appeals the trial court’s denial of his petition for writ of

      habeas corpus. Hummel presents one issue for our review, namely, whether the

      court erred when it denied his petition. We affirm and remand with

      instructions.


                                  Facts and Procedural History
[2]   On April 23, 2012, Hummel pleaded guilty to one count of dealing in a narcotic

      drug, as a Class B felony (Count 1); two counts of robbery, as Class B felonies

      (Counts II and III); and one count of disarming an officer, as a Class C felony

      (Count IV). In exchange for his guilty plea, the State agreed that Hummel

      would be sentenced as follows: fifteen years for Count 1, ten years for Count II,

      ten years for Count III, and two years for Count IV. The parties further agreed

      that “the sentences in Count II, Count III, and Count IV shall run

      concurrently.” Appellant’s App. Vol. II at 14 (capitalization removed).

      Thereafter, the Starke Circuit Court accepted Hummel’s guilty plea and

      sentenced Hummel on each count pursuant to the terms of the plea agreement.

      The court then ordered that the “sentences imposed in Counts II, III, and IV

      shall run concurrently” and that the “sentence imposed in Amended Count I

      shall run consecutively to Counts II, III, and IV.” Id. at 16. Hummel was then

      placed in a correctional facility in LaPorte County.


[3]   On November 6, 2019, Hummel, pro se, filed a petition for writ of habeas corpus

      in the LaPorte Circuit Court. In his petition, Hummel asserted that his


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-3091 | April 22, 2020   Page 2 of 5
      confinement was illegal because “there was no consecutive language in the

      plea” and that, “absent clear language to the contrary[,] the sentence for Count

      I should run concurrently.” Id. at 19. In essence, Hummel asserted that his

      sentence “violate[d] the express terms” of his plea agreement and that he “has

      done the time legally expressed in his plea.” Id. at 20. The LaPorte Circuit

      Court found that Hummel had stated “no claim for relief.” Id. at 22.

      Accordingly, the court denied Hummel’s petition. This appeal ensued.


                                     Discussion and Decision
[4]   Hummel contends that the LaPorte Circuit Court erred when it denied his

      petition for writ of habeas corpus. Specifically, Hummel asserts that he is being

      “illegally detained” after the trial court made a “mistake of law” when it

      ordered his sentence on Count I to run consecutive to his sentences on the other

      counts because his plea agreement “is silent on the consecutive language.”

      Appellant’s Br. at 5, 6. He further asserts that, had the court ordered his

      sentence on Count I to run concurrent with the other counts as required by his

      plea agreement, his aggregate sentence would have elapsed. Accordingly, he

      maintains that he is entitled to an immediate release from custody.


[5]   Indiana Code Section 34-25.5-1-1 (2019) 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 illegal.” The purpose of the writ of habeas

      corpus is to bring the person in custody before the court for inquiry into the


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-3091 | April 22, 2020   Page 3 of 5
      cause of the restraint. Manley v. Butts, 71 N.E.3d 1153, 1156 (Ind. Ct. App.

      2017). A petitioner is entitled to habeas corpus relief only if he is entitled to his

      immediate release from unlawful custody. Martin v. State, 901 N.E.2d 645, 647

      (Ind. Ct. App. 2009).


[6]   Here, while Hummel claimed in his petition for writ of habeas corpus that his

      confinement was illegal, his underlying argument was that the court did not

      sentence him pursuant to the terms of his plea agreement. Thus, contrary to

      Hummel’s assertion, the substance of his petition makes it clear that his petition

      was, in fact, an attack on the validity of his sentence. Indeed, in his brief,

      Hummel acknowledges that he is challenging the court’s imposition of

      consecutive sentences. However, a petitioner “may not file a writ of habeas

      corpus to attack his conviction or sentence.” Manley, 71 N.E.3d at 1156

      (citations omitted). Rather, a petitioner who attacks the validity of his sentence

      must file a petition for post-conviction relief. See id. Because Hummel’s

      petition challenged the validity of his sentence, the LaPorte Circuit Court did

      not err when it denied his petition for writ of habeas corpus.


[7]   However, Indiana Post-Conviction Rule 1(1)(c) provides that, if a petitioner

      files a petition for a writ of habeas corpus in the county where the person is

      incarcerated and challenges the validity of his sentence, “that court shall

      transfer the cause to the court in which the conviction took place, and the latter

      court shall treat it as a petition for [post-conviction relief] under this Rule.”

      Because Hummel filed a petition for writ of habeas corpus in the county where

      he is incarcerated and challenged the validity of his sentence, the LaPorte

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-3091 | April 22, 2020   Page 4 of 5
      Circuit Court was required to transfer his petition to the Starke Circuit Court

      for it to be treated as a petition for post-conviction relief. Accordingly, we

      affirm the LaPorte Circuit Court’s denial of Hummel’s petition for writ of

      habeas corpus, but we remand with instructions for the court to transfer

      Hummel’s petition to the Starke Circuit Court.


[8]   Affirmed and remanded with instructions.


      Kirsch, J., and Brown, J., concur.




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