      MEMORANDUM DECISION
                                                                               Nov 25 2015, 6:08 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before 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
      Aaron Isby                                               Gregory F. Zoeller
      Carlisle, Indiana                                        Attorney General of Indiana
                                                               Aaron T. Craft
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Aaron Isby,                                              November 25, 2015

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               77A01-1504-PL-132
              v.                                               Appeal from the Sullivan Superior
                                                               Court.
      Bruce Lemmon, as                                         The Honorable Christopher Newton,
                                                               Special Judge.
      Commissioner of the Indiana                              Cause No. 77D01-1102-PL-47
      Department of Correction, and
      the Indiana Parole Board,
      Appellees-Defendants.




      Shepard, Senior Judge

[1]   Though he is in the course of serving a forty-year sentence for attempted

      murder, Aaron Isby contends in this proceeding that the trial court should have

      ordered him released from prison. We affirm the court’s denial of what Isby
      Court of Appeals of Indiana | Memorandum Decision 77A01-1504-PL-132 | November 25, 2015         Page 1 of 5
      characterized as an action for declaratory judgment. The trial court rightly

      entertained it as a habeas.


                               Facts and Procedural History
[2]   Isby’s record of convictions, sentences, and pro se petitions makes outlining his

      status something of a challenge, but rather than elaborate on his seven

      convictions and a contempt sentence, we think the crucial timelines are these:

      (1) a thirty-year sentence for class A robbery, imposed in 1988, from which he

      was released in 2008; (2) a ninety-day sentence for contempt of court, which he

      began serving after finishing his sentence for robbery; and (3) a forty-year

      sentence for an attempted murder he committed while in prison, a sentence that

      began to run in 2009 after he finished his sentence for contempt.


[3]   In 2010, Isby filed a complaint for declaratory and injunctive relief, contending

      that he was entitled to immediate release. The case was transferred to Sullivan

      County, where Isby is presently confined. After an appeal which produced a

      change of judge, Special Judge Christopher Newton granted the State’s motion

      for summary judgment.


                                   Discussion and Decision
                     I. Was Judge Newton Properly Appointed?
[4]   As a preliminary matter, Isby contends that Judge Newton was wrongly

      appointed. After the change of judge was granted, a panel was named and the

      parties struck. The judicial officer who remained after striking declined to


      Court of Appeals of Indiana | Memorandum Decision 77A01-1504-PL-132 | November 25, 2015   Page 2 of 5
      serve, so the appointment was referred to the judicial district’s presiding judge,

      under the district plan created pursuant to Indiana Trial Rule 79. The presiding

      judge designated Judge Newton, who presided over the case for several years

      and entered the decision now under appeal.


[5]   Isby now contends, for the first time, that Newton could not serve because Isby

      struck Judge Newton from the panel. The State correctly replies that a party

      must object to a special judge’s authority at the time of the appointment, or the

      issue is waived. Bivins v. State, 485 N.E.2d 89 (Ind. 1985). Moreover, judges

      who were struck during the panel process are eligible for appointment under

      district plans. Ind. Trial Rule 79(J).


            II. Was It Correct to Treat Isby’s Action as a Habeas?
[6]   Isby’s contention has been that he was not seeking to challenge the validity of

      his sentence or conviction or to seek “immediate discharge,” such that his case

      is not properly treated as a habeas matter. The State points out that Isby’s

      prayer for relief has always been “release from prison.” Appellees’ Br. p. 23.


[7]   Examining the relationship between the Declaratory Judgment Act and habeas

      corpus, the Supreme Court has held that the former is not available to a

      prisoner who has an adequate remedy in habeas. Hinkle v. Howard, 225 Ind.

      176, 73 N.E.2d 674 (1947). Accord Madden v. Houck, 403 N.E.2d 1133, 1135

      (Ind. Ct. App. 1980) (the Declaratory Judgment Act “was not intended to

      eliminate well-known causes of action, where the issues are ripe for litigation



      Court of Appeals of Indiana | Memorandum Decision 77A01-1504-PL-132 | November 25, 2015   Page 3 of 5
       through the usual processes”). Isby’s request to be released from prison was

       properly treated as a habeas request by the trial court.


                       III. Was Judgment for the State an Error?
[8]    In 2008, the Indiana Parole Board replied to a letter from Isby by saying that his

       projected parole date was in 2009. Isby says that this letter estops the State

       from arguing that he has not completed his sentence obligations, that his

       tendering of the letter in this proceeding creates a question of fact making

       summary judgment improper, and that the State’s failure to release him thus

       violates Equal Protection.


[9]    The Parole Board’s letter to Isby was correct, as far as it went. In early 2009,

       Isby completed the executed portion of his robbery sentence and the ninety days

       he owed on the contempt. The Board’s letter made no mention of the fact that

       Isby was to begin serving his sentence for attempting to murder a prison guard

       after these two obligations ran their course. It may be that Isby’s letter to the

       Board did not mention his sentence for attempted murder, just as he has argued

       here that it was improper for Judge Newton to take cognizance of that

       conviction in deciding that Isby was not entitled to an order releasing him from

       prison. Or, it may be that the Board responded to Aaron Isby thinking that he

       and Aaron Israel were two different people, as appellant has used both names.


[10]   In any event, the forty-year conviction and sentence for attempted murder

       appear not actually to be under attack. There are no disputes of material fact,

       and the trial court properly granted judgment to the State.

       Court of Appeals of Indiana | Memorandum Decision 77A01-1504-PL-132 | November 25, 2015   Page 4 of 5
                                                Conclusion
[11]   We affirm the judgment of the trial court.


[12]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




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