                                                                           FILED
                                                                       Jul 31 2020, 8:42 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Shawn G. Willet                                            Curtis T. Hill, Jr.
New Castle, Indiana                                        Attorney General of Indiana
                                                           David A. Arthur
                                                           Senior Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shawn G. Willet,                                           July 31, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2699
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Teresa L. Cataldo,
Appellee-Plaintiff,                                        Judge
                                                           Trial Court Cause No.
                                                           20D03-0801-FB-2



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                              Page 1 of 12
                                 Case Summary and Issue
[1]   Shawn Willet, pro se, appeals from the denial of his Motion to Dismiss

      Sentence Time Served alleging he has served his entire sentence and was being

      unlawfully detained by the Indiana Department of Correction (“DOC”). Willet

      raises one issue for our review, which we revise and restate as whether the trial

      court abused its discretion in denying Willet’s motion. Concluding the trial

      court did not abuse its discretion, we affirm.



                             Facts and Procedural History
[2]   The State charged Willet with six counts of sexual misconduct with a minor, all

      Class B felonies, and he was arrested on January 22, 2008. In 2010, Willet was

      convicted of three of the counts and, on March 25, 2010, the trial court

      sentenced Willet to fifteen years on each count to be served concurrently in the

      DOC. Willet was awarded 791 days credit for time spent in custody while

      awaiting disposition.


[3]   On January 23, 2015, Willet was released to parole. Willet was on parole for

      two years, ten months, and twenty days before his parole was revoked. Willet

      was returned to prison on December 12, 2017. On September 16, 2019, Willet

      filed his Motion to Dismiss Sentence Time Served, arguing he was entitled to be

      released because he “actively served seven (7) years of his prison term and

      received six (6) months[’] time cuts for education classes that he took while

      incarcerated. Thus he has earned seven (7) years, six (6) months good earned


      Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020          Page 2 of 12
      credit time.” Appellee’s Appendix, Volume 2 at 14. He asserted that he was

      placed on parole for seven years and six months “after he has served seven (7)

      years and earned eight years credit time equaling [his] fifteen (15) year

      sentence[.]” Id. And therefore, he argued, he had executed his sentence and

      DOC has been unlawfully detaining him. Id.


[4]   On October 11, 2019, the trial court issued an order denying Willet’s motion on

      the basis that it “does not have purview of any good time credit awarded by the

      [DOC], which is granted that authority by Indiana Law.” Id. at 16. Willet now

      appeals.



                                 Discussion and Decision
[5]   We initially note that Willet is proceeding pro se. Pro se litigants are held to

      the same legal standard as licensed attorneys and are afforded no inherent

      leniency simply by virtue of being self-represented. Zavodnik v. Harper, 17

      N.E.3d 259, 266 (Ind. Ct. App. 2014).


[6]   As a threshold matter, we address the State’s argument that Willet has waived

      appellate review of his claim for failure to make a cogent argument. See Brief of

      Appellee at 9. The State contends Willet’s brief “is a rambling, conclusory,

      unsupported assertion that somehow he was deprived of good time [credit] as

      well as educational credit” and although Willet cites to several statutes, he fails

      to explain how they support his claims. Id.




      Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020           Page 3 of 12
[7]   Indiana Appellate Rule 46(A)(8)(a) provides that the appellant’s “argument

      must contain the contentions of the appellant on the issues presented, supported

      by cogent reasoning. Each contention must be supported by citations to the

      authorities, statutes, and the Appendix or parts of the Record on Appeal relied

      on[.]” It is well established that failure to present a cogent argument results in

      waiver on appeal. Martin v. Hunt, 130 N.E.3d 135, 137 (Ind. Ct. App. 2019).

      Although Willet has failed to make a cogent argument supported by relevant

      authority, we decline to decide this case on waiver and address the merits of

      Willet’s argument.


[8]   Willet filed a Motion to Dismiss Sentence Time Served, but the State argues

      that “[a] better reading of the motion is that it is a petition for post-conviction

      relief [pursuant to Post-Conviction Rule 1(1)(a)(5) (2015)1] alleging that Willet’s

      sentence has expired so revocation of his parole was unlawful.” Br. of Appellee

      at 7. Although the State makes a compelling argument, we disagree and

      construe Willet’s motion as a petition for writ of habeas corpus.2




      1
        “Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims
      . . . that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is
      otherwise unlawfully held in custody or other restraint . . . may institute at any time a proceeding under this
      Rule to secure relief.” Ind. Post-Conviction Rule 1(1)(a)(5) (2015).
      2
        Construing Willet’s motion as a petition for post-conviction relief is problematic because the proper
      procedure in post-conviction proceedings was not followed in this case. First, under the post-conviction
      rules, the State must respond to the defendant’s petition within thirty days. P-C.R. 1(4)(a). Here, Willet filed
      his motion on September 16, 2019 and the trial court denied the petition on October 11, before the State
      could file a response. In addition, this court has previously summarized a post-conviction court’s procedural
      options as follows:



      Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                                   Page 4 of 12
[9]    Indiana Code section 34-25.5-1-1 provides, “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.” The purpose of a writ of habeas corpus is to

       determine the lawfulness of the defendant’s detention; it cannot be used to

       attack a conviction or sentence. Love v. State, 22 N.E.3d 663, 664 (Ind. Ct. App.

       2014), trans. denied. A defendant is entitled to a writ of habeas corpus if he or

       she is unlawfully incarcerated and is entitled to immediate release. Hardley v.

       State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008). On the other hand, when

       challenging the validity of a conviction or sentence, a petitioner must file a

       petition for post-conviction relief in the court of conviction. Id. at 743.


[10]   Here, Willet does not challenge the validity of his convictions or his fifteen-year

       sentence. Instead, he alleges he is entitled to immediate discharge because he

       has fully served his sentence. See Brief of the Appellant at 5-6. Therefore, we




                hold a full evidentiary hearing, P-C.R. 1(5); deny the petition if the pleadings show no
                merit, P-C.R.1(4)(f); decide the petition on the basis of the pleadings and other evidence
                submitted if either party moves for summary disposition and there is no genuine issue of
                material fact to be considered at a hearing, P-C.R. 1(4)(g); or, if the petitioner is pro se,
                order the case submitted on affidavit, P-C.R. 1(9).

       Laboa v. State, 131 N.E.3d 660, 664 (Ind. Ct. App. 2019). In this case, the trial court did not hold
       an evidentiary hearing or order the case to be submitted on affidavit and neither party moved for
       summary disposition. And, as we discuss below, Willet does not challenge his conviction or
       sentence. He only argues that he has served his entire sentence and is entitled to be released
       immediately. Therefore, given the relief sought and the procedural posture of this case, we
       conclude that construing Willet’s motion as a petition for post-conviction relief is not appropriate.

       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                                        Page 5 of 12
       treat his motion as a petition for a writ of habeas corpus and evaluate it as

       such.3


[11]   A trial court’s habeas corpus decision is reviewed for an abuse of discretion.

       Benford v. Marvel, 842 N.E.2d 826, 828 (Ind. Ct. App. 2006). We do not

       reweigh the evidence and consider only the evidence most favorable to the

       judgment and reasonable inferences drawn therefrom to determine whether

       sufficient evidence sustains that decision. Id. We may affirm a trial court’s

       judgment on any basis sustainable by the record, even though not on a theory

       used by the trial court. Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994).


[12]   A trial court lacks the “jurisdiction to entertain a petition for a writ of habeas

       corpus inasmuch as petitioner [is] serving time under a proper commitment, his

       sentence [has] not expired and he [has] not been denied good time or credit

       time . . . [and h]e is not seeking a correction of the beginning or the end of his




       3
         In a separate concurring opinion, Judge Vaidik respectfully disagrees with this conclusion and believes
       Willet’s motion should be treated as a petition for post-conviction relief because Willet filed his motion in the
       county where he was convicted and sentenced rather than the county where he was incarcerated. We believe
       the substance of the petition controls. Under the post-conviction rules, if a person files an application for a
       writ of habeas corpus in the county of incarceration challenging the validity of his conviction or 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[.]” P-C.R.1(c). A litigant’s self-titled “habeas” petition filed in the
       county of incarceration is not automatically treated as a petition for writ of habeas corpus because of where it
       was filed. Instead, the substance of the petition governs how it is treated. Thus, when a litigant files a
       “habeas” petition but does not allege a habeas argument (i.e., the litigant challenges the validity of his
       conviction or sentence), it is treated as a petition for post-conviction relief and transferred to the court of
       conviction. Deciding how to treat Willet’s motion based on where he filed it rather than the substance of the
       allegations therein is elevating form over substance without good reason. We acknowledge overlap between
       our post-conviction rules and the habeas statute and that the resolution of this matter – whether we treat
       Willet’s motion as a petition for post-conviction relief or petition for writ of habeas corpus – is the same
       because Willet’s argument is meritless. Nonetheless, we reiterate our position that, based on the substance of
       Willet’s motion, treating it as a petition for a writ of habeas corpus is more appropriate.

       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                                     Page 6 of 12
       sentence.” Young v. Duckworth, 274 Ind. 59, 61, 408 N.E.2d 1253, 1254 (1980)

       (citation omitted).


[13]   The crux of Willet’s argument is that, with his executed time and earned credit

       time, he has served over twenty years on a fifteen-year sentence. See Br. of the

       Appellant at 5 (statement of the facts). And therefore, he contends he is entitled

       to be released immediately. We disagree.


[14]   Once incarcerated, prisoners begin accumulating additional credits which

       shorten the length of time they will be incarcerated. Miller v. Walker, 655

       N.E.2d 47, 48 (Ind. 1995); see also Ind. Code §§ 35-50-6-3 (credit time classes for

       a person convicted before July 1, 2014) and -4 (credit time assignments).

       “Credit time is a statutory reward for a lack of conduct that is in violation of

       institutional rules. It is earned toward release on parole for felons, and does not

       diminish the fixed term or affect the date on which a felony offender will be

       discharged.” Boyd v. Broglin, 519 N.E.2d 541, 542 (Ind. 1988) (emphasis

       added). Credit time is applied to determine a defendant’s release date from

       prison but does not reduce the sentence itself. Miller, 655 N.E.2d at 48 n.3.


[15]   When a person imprisoned for a felony completes his fixed term of

       imprisonment, less the credit time he has earned with respect to that term, he

       shall be released on parole for no more than twenty-four months. Ind. Code §

       35-50-6-1(a)(1). A person, such as Willet, who is a sex offender is released on

       parole for up to ten years. Ind. Code § 35-50-6-1(d). If parole is revoked, the

       person shall be imprisoned for all or part of the remainder of his fixed term;


       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020           Page 7 of 12
       however, he shall again be released on parole when he completes that

       remainder, less the credit time earned since revocation. Ind. Code § 35-50-6-

       1(c).


[16]   Applying the above here, the record shows that on March 25, 2010, Willet was

       sentenced to serve fifteen years, with 791 days of jail time credit. Thus, Willet

       effectively began his sentence on January 23, 2008; fifteen years from that date

       is January 23, 2023. Again, credit time simply shortens a fixed executed

       sentence for release to parole, it does not reduce Willet’s fifteen-year sentence

       itself, which does not end until January 23, 2023. See Miller, 655 N.E.2d at 48

       n.3. The record reveals on its face that Willet was not entitled to immediate

       release because his sentence has not expired. Therefore, the trial court properly

       denied his petition summarily.4



                                                    Conclusion



       4
         Because we treated Willet’s motion as a habeas corpus petition, we briefly address the trial court ‘s
       jurisdiction to deny Willet’s motion. “Writs of habeas corpus may be granted by . . . circuit or superior courts
       of the county in which the person applying for the writ may be restrained of his or her liberty, or by the
       judges of those courts[.]” Ind. Code § 34-25.5-2-2(a) (emphasis added). Despite the discretionary language
       in the statute, “it has been held in effect that such actions must be brought in the [circuit or superior court of
       the county of the petitioner’s incarceration], and that such courts have exclusive jurisdiction in such
       proceedings.” State ex. rel. Moore v. Carlin, 226 Ind. 437, 438, 81 N.E.2d 670, 671 (1948); contra P.C.R. 1(1)(c)
       (requiring petitions for post-conviction relief to be filed in the court of conviction, and if a petitioner
       erroneously files a habeas corpus petition challenging the validity of his or her conviction or sentence in the
       county of incarceration, the court will treat it as a petition for post-conviction relief and must transfer it to the
       court of conviction). Here, Willet filed his habeas corpus petition in the court of conviction, not in a circuit
       or superior court located in the county of incarceration. Therefore, the court of conviction, Elkhart Superior
       Court, would lack the jurisdiction to grant Willet’s petition and issue a writ for habeas corpus. However,
       given the language of the statute, we conclude the trial court was within its authority to deny his petition.

       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                                       Page 8 of 12
[17]   The trial court did not abuse its discretion in denying Willet’s petition for writ

       of habeas corpus because his sentence has not expired. Accordingly, the

       judgment of the trial court is affirmed.


[18]   Affirmed.


       May, J., concurs.


       Vaidik, J., concurs in result with opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020          Page 9 of 12
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Shawn G. Willet,                                           Court of Appeals Case No.
                                                                  19A-CR-2699
       Appellant-Defendant,

               v.

       State of Indiana
       Appellee-Plaintiff,




       Vaidik, Judge, concurring in result.


[19]   I respectfully disagree with the majority’s conclusion that Willet’s motion

       should be treated as an application for a writ of habeas corpus rather than as a

       petition for post-conviction relief. An inmate who believes their sentence has

       expired has two options. First, they can file a petition for post-conviction relief

       in the county where they were convicted and sentenced. See Ind. Post-

       Conviction Rule 1(1)(a)(5) (providing that a person who claims “that his

       sentence has expired” can “institute at any time a proceeding under this Rule to

       secure relief”); P-C.R. 1(2) (providing that “[a] person who claims relief under

       this Rule” must generally “file a verified petition with the clerk of the court in
       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020                      Page 10 of 12
       which the conviction took place”). In the alternative, they can file an

       application for a writ of habeas corpus in the county where they are

       incarcerated. See Ind. Code § 34-25.5-2-1 (providing that a person who claims

       that they are being illegally held can file an application for a writ of habeas

       corpus); I.C. § 34-25.5-2-2(a)(1) (providing that “[w]rits of habeas corpus may

       be granted by: (1) the circuit or superior courts of the county in which the

       person applying for the writ may be restrained of his or her liberty, or by the

       judges of those courts”). See also Partlow v. Superintendent, Miami Corr. Facility,

       756 N.E.2d 978, 981 (Ind. Ct. App. 2001) (“Jurisdiction over writs of habeas

       corpus is traditionally with the court in the county where the petitioner is

       incarcerated, Ind. Code § 34-25.5-2-2 (1998), whereas petitions for post-

       conviction relief must be filed in the conviction court, Ind. Post-Conviction

       Rule 1(2).”), superseded by statute on other grounds as stated in Paul v. State, 888

       N.E.2d 818 (Ind. Ct. App. 2008), trans. denied. Here, Willet filed his motion in

       the county where he was convicted and sentenced (Elkhart County), rather than

       in the county where he was incarcerated (Henry County). As such, the motion

       should be treated as a petition for post-conviction relief.


[20]   The majority suggests that I believe Willet’s motion should be treated as a

       petition for post-conviction relief “based on where he filed it rather than the

       substance of the allegations therein[.]” Slip op. n.3. Not true. The substance of

       the motion is just as important as the location of filing. And the substance of

       Willet’s motion is a claim that his sentence has expired—a claim that is

       explicitly authorized by the post-conviction rules. Again, Post-Conviction Rule


       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020             Page 11 of 12
       1(1)(a)(5) very clearly provides that a person who claims “that his sentence has

       expired” can “institute at any time a proceeding under this Rule to secure

       relief.” In short, it is the two things taken together—the substance of Willet’s

       motion and the fact that he filed it in the county of conviction—that lead me to

       conclude that the motion should be treated as a petition for post-conviction

       relief.


[21]   The majority also states, “Construing Willet’s motion as a petition for post-

       conviction relief is problematic because the proper procedure in post-conviction

       proceedings was not followed in this case.” Slip op. n.2. While failure to follow

       the proper post-conviction procedures might be a reason to remand for further

       proceedings, it is not a reason to treat Willet’s motion as something other than a

       petition for post-conviction relief. But I believe the trial court’s denial of

       Willet’s motion was consistent with the post-conviction rules. Post-Conviction

       Rule 1(4)(f) provides, “If the pleadings conclusively show that petitioner is

       entitled to no relief, the court may deny the petition without further

       proceedings.” Willet’s motion conclusively shows that his sentence has not

       expired and that he is entitled to no relief. Therefore, the motion was properly

       denied, and I concur in the result reached by the majority.




       Court of Appeals of Indiana | Opinion 19A-CR-2699 | July 31, 2020           Page 12 of 12
