MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Nov 29 2018, 6:35 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Toby D. Johnson                                         Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Kelly A. Loy
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Toby D. Johnson,                                        November 29, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-CR-1177
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause Nos.
                                                        79D02-0402-MR-1
                                                        79D02-1312-PC-18



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018          Page 1 of 6
                                     Case Summary and Issue
[1]   In June 2005, Toby Johnson pleaded guilty to murder and criminal

      confinement. After a direct appeal, his original sentence of eighty years in the

      Indiana Department of Correction (“DOC”) was reduced to sixty-five years. In

      2018, Johnson filed a petition for habeas corpus. On the State’s motion, the

      trial court dismissed the petition as an unauthorized successive petition for post-

      conviction relief. Johnson appeals the trial court’s decision, raising several

      issues for our review that we consolidate and restate as one: whether the trial

      court erred in dismissing his petition. Concluding the trial court properly

      dismissed the petition as an unauthorized successive petition for post-conviction

      relief, we affirm.



                                 Facts and Procedural History
[2]   After Johnson pleaded guilty to murder and criminal confinement in

      Tippecanoe County in 2005, he was sentenced to sixty-five years for murder

      and fifteen years for criminal confinement, to be served consecutively. Johnson

      appealed. On remand, at this court’s direction, the trial court revised Johnson’s

      sentence to concurrent terms for a total sentence of sixty-five years. In 2013,1

      Johnson filed a petition for post-conviction relief that was denied by the post-

      conviction court on April 15, 2015. Johnson filed a timely notice of appeal and




      1
          Johnson filed his first petition for post-conviction relief in 2006, but subsequently withdrew the petition.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018                        Page 2 of 6
      then filed a motion for leave to file a belated brief. His motion was granted,

      and he was ordered to file his appellant’s brief by September 7, 2015. On June

      1, 2017, this court issued an order noting no appellant’s brief had been filed and

      dismissing the appeal with prejudice. Johnson then filed a motion to file a

      belated appeal which this court denied on September 29, 2017.


[3]   On November 22, 2017, Johnson petitioned for permission to file a successive

      petition for post-conviction relief. On January 4, 2018, this court denied the

      petition because Johnson had failed to establish a reasonable probability that he

      is entitled to post-conviction relief.2


[4]   On March 16, 2018, Johnson filed a petition for writ of habeas corpus in

      LaPorte Circuit Court, alleging he was incarcerated at the Indiana State Prison

      in Michigan City and challenging the validity of his guilty plea and sentence.

      On the State’s motion, the case was transferred to Tippecanoe Superior Court

      as the sentencing court. On April 24, 2018, the Tippecanoe Superior Court

      dismissed Johnson’s petition, finding it to be an unauthorized successive

      petition for post-conviction relief. Johnson now appeals.



                                  Discussion and Decision




      2
       On January 19, 2018, Johnson filed a petition for habeas relief in the United District Court for the Northern
      District of Indiana which was dismissed as untimely on February 1, 2018. See Appellant Appendix, Volume
      2 at 64-86.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018                  Page 3 of 6
[5]   Indiana Code section 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.” Love v. State, 22 N.E.3d 663, 664 (Ind. Ct. App. 2014), trans. denied.

      A petitioner is entitled to habeas corpus only if he is unlawfully incarcerated

      and entitled to immediate release from custody. Hardley v. State, 893 N.E.2d

      740, 742 (Ind. Ct. App. 2008). We review the trial court’s habeas decision for

      an abuse of discretion. Id.


[6]   Here, it is apparent that Johnson is challenging the validity of his convictions

      and sentence. See Appellant Brief at 11-12 (including as issues for appeal that

      he was wrongfully denied his right to trial by jury, that his guilty plea was

      coerced and involuntary, that he was wrongfully denied his right to withdraw

      his guilty plea, and that dismissal of the appeal from the denial of post-

      conviction relief was through no fault of his own). However, “a petitioner may

      not file a writ of habeas corpus to attack his conviction or sentence.” Love, 22

      N.E.3d at 664. “[A] trial court does not have 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 sentence.” Hardley, 893 N.E.2d at 742-43 (quotation

      omitted, alterations in original). Instead, a petitioner attacking the validity of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018   Page 4 of 6
      his conviction or sentence must file a petition for post-conviction relief in the

      court of conviction. Id. at 743. When a petitioner erroneously captions his

      action as a petition for writ of habeas corpus, courts properly treat the petition

      as one for post-conviction relief based on the content of the pleading rather than

      the caption. Id.


[7]   That is what occurred here. Johnson filed his petition in the county of his

      incarceration, but that court determined Johnson’s petition was attacking the

      validity of his sentence. The case was therefore transferred to the county of his

      conviction to be treated as a petition for post-conviction relief pursuant to

      Indiana Post-Conviction Rule 1(1)(c), which states:


               [I]f a person applies for a writ of habeas corpus in the county
               where the person is incarcerated and challenges 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 relief under this Rule.


      However, Johnson has already filed a petition for post-conviction relief that was

      decided on the merits.3 In such a case, the petitioner must follow the procedure

      found in Post-Conviction Rule 1(12) for successive petitions. Currie v. State, 82

      N.E.3d 285, 287 (Ind. Ct. App. 2017). Under that rule, the petitioner must file

      with the Clerk of the Indiana Supreme Court, Indiana Court of Appeals, and



      3
       Johnson’s original petition for post-conviction relief was denied on the merits by the post-conviction court.
      Johnson’s purported appeal of that decision was dismissed because two years after filing a notice of appeal,
      he had not filed an appellant’s brief. The case was therefore litigated to its conclusion even though no appeal
      on the merits was completed because of Johnson’s procedural default.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018                   Page 5 of 6
       Tax Court, a petition seeking permission to file a successive petition for post-

       conviction relief as well as a copy of the proposed petition. Ind. Post-

       Conviction Rule 1(12)(a). The appellate court will then consider the petition

       and authorize the filing of such petition “if the petitioner establishes a

       reasonable possibility that the petitioner is entitled to post-conviction relief.” P-

       C.R. 1(12)(b).


[8]    Johnson previously requested permission to file a successive petition for post-

       conviction relief and was denied. He did not file a petition seeking to file a

       successive petition this time, instead filing a petition he styled as a petition for

       writ of habeas corpus but failing to demonstrate the right to immediate release.

       Thus, upon receiving Johnson’s habeas corpus petition and treating it as a post-

       conviction petition, the trial court properly dismissed Johnson’s petition

       because it was an unauthorized successive petition.



                                              Conclusion
[9]    Because Johnson has already completed a post-conviction proceeding and filed

       a second petition challenging his conviction and sentence without receiving

       authorization to file the petition, we affirm the trial court’s dismissal of

       Johnson’s petition as an unauthorized successive petition for post-conviction

       relief.


[10]   Affirmed.


       Baker, J., and May, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1177 | November 29, 2018   Page 6 of 6
