Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                     Sep 17 2014, 8:29 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:

ROBERT P. BENAVIDES                                GREGORY F. ZOELLER
New Castle, Indiana                                Attorney General of Indiana

                                                   CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT P. BENAVIDES,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 18A02-1405-PC-318
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Marianne L. Vorhees, Judge
                               Cause No. 18C01-1403-PC-1


                                       September 17, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       Robert P. Benavides (“Benavides”)—who is incarcerated in Henry County and has

already had the denial of his petition for post-conviction relief affirmed on appeal—filed

a petition for writ of state habeas corpus with the Henry Circuit Court.           Because

Benavides challenged his sentence in his habeas petition, the Henry Circuit Court

determined his petition was to be treated as a petition for post-conviction relief and

transferred the case to the Delaware Circuit Court, where Benavides had been convicted

and sentenced. The Delaware Circuit Court, after determining that Benavides’s petition

was an unauthorized successive post-conviction petition, dismissed his petition.

Benavides, pro se, appeals the trial court’s order dismissing his petition for writ of state

habeas corpus. Finding no error, we affirm the court’s dismissal of Benavides’s petition.

       We affirm.

                                          ISSUE

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

                                          FACTS

       In December 2002, the State charged Benavides with: Count 1, Class B felony

armed robbery; Count 2, Class B felony burglary; Count 3, Class B felony unlawful

possession of a firearm by a serious violent felon; and Count 4, Class A misdemeanor

possession of marijuana. These crimes were alleged to have been committed in Delaware

County. On March 13, 2003, Benavides entered into a written plea agreement in which

he agreed to plead guilty to the Class B felony burglary charge in exchange for the State’s

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dismissal of the remaining three charges. The trial court accepted his plea and imposed a

ten (10) year executed sentence in the Department of Correction. The trial court also

ordered that Benavides’s sentence be served consecutive to his sentences in two other

causes, specifically 18C03-0007-CF-52 and 18C01-0212-FB-21.

       In October 2010, Benavides filed a pro se petition for post-conviction relief. In his

petition, he alleged that his trial counsel had rendered ineffective assistance by

overlooking a potential defense and by incorrectly advising him on penal consequences.

In July 2012, Benavides filed a motion to have his sentences run concurrently, and the

post-conviction court denied that motion in August 2012. The post-conviction court

denied Benavides’s petition for post-conviction relief in September 2012.            While

Benavides’s post-conviction appeal was pending, he filed with the trial court a motion to

correct erroneous sentence, which the post-conviction court denied in April 2013. In July

2013, this Court affirmed the trial court’s denial of post-conviction relief. See Benavides

v. State, 18A04-1210-PC-511 (Ind. Ct. App. July 24, 2013), trans. denied.

       On February 26, 2014, Benavides, who is incarcerated in Henry County, filed a

pro se petition for writ of state habeas corpus with the Henry Circuit Court. In his

petition, Benavides alleged that he was being illegally restrained at the New Castle

Correctional Facility. Benavides alleged that his plea agreement contained a provision

for concurrent sentences and that the trial court had violated the terms of his plea

agreement when it sentenced him to consecutive sentences for his burglary conviction




                                             3
and his sentence under cause 18C01-0212-FB-21.1 Thereafter, the State filed a motion to

transfer Benavides’s habeas petition to Delaware County, arguing that Benavides’s

motion was attacking his sentence and should be treated as a petition for post-conviction

relief. On March 25, 2014, the Henry Circuit Court—after determining that Benavides’s

petition was improperly attacking the validity of his sentence and should be treated as a

post-conviction petition—entered an order transferring the matter to the Delaware Circuit

Court.

         After the case was docketed in Delaware County, the State filed a motion to

dismiss Benavides’s post-conviction petition, arguing that it was an unauthorized

successive post-conviction petition. On April 17, 2014, the Delaware Circuit Court

granted the State’s motion and dismissed Benavides’s petition as an unauthorized

successive petition. Benavides now appeals.

                                              DECISION

         Benavides 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

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,
1
  Benavides did not attach a copy of his plea agreement to his petition and has not included a copy in the
record on appeal.
                                                    4
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 Benavides asserted in his habeas corpus petition that he was being

illegally restrained, it is apparent that his petition is challenging the validity of his

sentence and plea agreement. Indeed, in his appellate brief, Benavides acknowledges that

he is challenging the trial court’s imposition of consecutive sentences.             Because

Benavides’s petition challenges the validity of his sentence, the Henry Circuit Court

properly treated it as a post-conviction petition and transferred it to the Delaware Circuit

Court where he was convicted and sentenced. See, e.g., Miller v. Lowrance, 629 N.E.2d

                                              5
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 Delaware Circuit Court also properly dismissed Benavides’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).

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

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

corpus petition and treating it as a post-conviction petition, the Delaware Circuit Court

                                              6
properly dismissed Benavides’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 permission to file the petition). Accordingly, we affirm the Delaware

Circuit Court’s dismissal of Benavides’s petition.

        Affirmed.2

NAJAM, J., and BAILEY, J., concur.




2
 Benavides also challenges the Delaware Circuit Court’s order dismissing his petition on the basis of the
court’s comment that Benavides was making the same argument in his petition that he made in his first
post-conviction petition. Because we conclude that the Delaware Circuit Court properly dismissed
Benavides’s petition as an unauthorized successive post-conviction petition, we need not address this
argument.
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