                                                                                   FILED
                                                                              May 23 2017, 5:50 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Cory Pollard                                              Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana

                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Cory Pollard,                                             May 23, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                36A01-1603-CR-659
              v.                                                Appeal from the Jackson Circuit
                                                                Court
      State of Indiana,                                         The Honorable William E. Vance,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                36C01-0306-FA-21




      Barnes, Judge.


                                              Case Summary
[1]   Cory Pollard appeals the trial court’s denial of his motion for educational credit

      time. We affirm.


      Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017                            Page 1 of 7
                                                         Issue
[2]   The sole issue Pollard raises is whether the trial court properly denied his

      motion for educational credit time.


                                                         Facts
[3]   On June 30, 2003, Pollard was charged with Class A felony dealing in cocaine.

      He pled guilty to the charge on November 9, 2005. On January 27, 2006, he

      was sentenced to twenty years executed in the Department of Correction

      (DOC), with 896 days of credit time for time served and 896 days of good time
                1
      credit.


[4]   From January 2008 to December 16, 2011, while serving his sentence at the

      Branchville Correctional Facility, Pollard pursued a Bachelor of Science degree.

      He completed the requirements and received his degree on December 16, 2011.

      Per Indiana Code Section 35-50-6-3.3(d)(4), the amount of credit time Pollard

      could earn for obtaining his bachelor’s degree was two years (730 days).

      Subsection (j) of the statute provided, however, that earned credit time could

      not reduce an inmate’s sentence to less than forty-five days. Ind. Code § 35-50-

      6-3.3(j).


[5]   On January 13, 2012, Pollard submitted his Bachelor of Science educational

      credit request to the correctional facility. His request was denied on January



      1
       The trial court amended the sentencing order several times to accurately reflect Pollard’s credit time. See
      Supp. App. Vol. II pp. 5-7.

      Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017                               Page 2 of 7
      17, 2012, because his earliest projected release date from the correctional facility

      was within forty-five days of his request for educational credit. On January 24,

      2012, Pollard was released to parole.


[6]   Pollard’s parole was revoked on or about December 5, 2013, for a violation of

      parole rules, and he was reincarcerated. On May 8, 2014, he submitted to the

      correctional facility a second request for educational credit for obtaining his

      Bachelor of Science degree. Pollard’s request was denied on May 12, 2014. A

      letter issued by the DOC Director of Education explained that the request was

      denied because Pollard “did not complete the Bachelor of Science degree during

      [his] current period of incarceration and it was denied previously, [sic] one

      cannot bank away time for future periods of incarceration. Therefore, the

      Education Division [of the DOC] cannot offer you any relief in this matter.”

      Supp. App. Vol. II p. 23.


[7]   On February 24, 2016, Pollard filed with the trial court a pro se motion for

      educational credit based on the completion of his bachelor’s degree. He

      requested that two years (730 days) of credit time be subtracted from the earliest

      projected release date for his reincarceration. On March 2, 2016, the trial court

      denied his motion. Pollard now appeals.


                                                   Analysis
[8]   Pollard argues that the trial court erred when it denied his motion for

      educational credit for a bachelor’s degree he earned when he was originally

      incarcerated for his conviction for dealing in cocaine. According to Pollard,

      Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017      Page 3 of 7
       730 days of credit time should be applied to the time he must serve due to a

       parole violation because the credit time was earned “under the same

       commitment and cause he is now serving.” Appellant’s Br. p. 5. We disagree.


[9]    Pollard’s motion for educational credit time was governed by Indiana Code

       Section 35-50-6-3.3 (2011). See Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct.

       App. 2008). A motion under that statute is treated as a petition for post-

       conviction relief under Indiana Post–Conviction Rule 1. Id. A petitioner

       seeking post-conviction relief must establish the grounds for relief by a

       preponderance of the evidence. Sander v. State, 816 N.E.2d 75, 76 (Ind. Ct.

       App. 2004). On appeal from the denial of relief, the petitioner must convince

       us that the evidence leads unerringly and unmistakably to a conclusion opposite

       that reached by the post-conviction court. Id. We will reverse the denial of

       relief only if the evidence is without conflict and leads to but one conclusion,

       and the post-conviction court reached the opposite conclusion. Id.


[10]   At the time Pollard earned his educational credit, Indiana Code Section 35-50-

       6-3.3(a) provided:


               a person earns credit time if the person:


               (1) is in credit Class I;


               (2) has demonstrated a pattern consistent with rehabilitation; and


               (3) successfully completes requirements to obtain one (1) of the
               following: . . .

       Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017        Page 4 of 7
                        (D) A bachelor’s degree from an approved postsecondary
                        educational institution (as defined under IC 21-7-13-6(a)).


       Subsection (j) of the statute provided: “[t]he amount of credit time earned

       under this section is reduced to the extent that application of the credit time

       would otherwise result in: (1) postconviction release (as defined in IC 35-40-4-

       6); . . . in less than forty-five (45) days after the person earns the credit time.”
                                          2
       Ind. Code § 35-50-6-3.3(j).


[11]   Pollard’s argument, essentially, is that the 730 days of educational credit he

       earned during his incarceration for the dealing in cocaine conviction should be

       applied to reduce the time he must serve for the parole violation. Pollard bases

       his argument on Rodgers v. State, 705 N.E.2d 1039, 1042 (Ind. Ct. App. 1999),

       and the proposition that an inmate’s entitlement to educational credit time

       accrues immediately upon his or her completion of the degree, regardless of

       subsequent parole violations or parole status.


[12]   In Rodgers, the defendant completed the requirements for earning a GED while

       serving his sentence in a community corrections program. Rodgers twice

       violated his probation after being released on home detention. When his

       probation was revoked, he applied for educational credit. The trial court denied

       the credit. The State argued on appeal that the trial court was correct because:




       2
        Subsections (a)(3)(D) and (j) of Ind. Code § 35-50-6-3.3 have since been amended. See Ind. Code § 35-50-6-
       3.3 (2016).

       Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017                           Page 5 of 7
       1) Rodgers was on probation when he requested the credit and Indiana Code

       Section 35-50-6-6 precluded a person from earning credit time while on

       probation; and 2) Rodgers twice violated his probation after earning his GED,

       thus failing to show that he had demonstrated a pattern consistent with

       rehabilitation as required by Indiana Code Section 35-50-6-3.3. This court

       concluded that, at the time Rodgers violated his probation, he already had

       earned the credit time for his GED. Therefore, the trial court could not deny

       him the credit based on his subsequent probation violations, and the probation

       violations could not be used as evidence of his failure to demonstrate a pattern

       consistent with rehabilitation. Id.


[13]   Rodgers is distinguishable from the instant case. Unlike Rodgers, Pollard was

       not denied the educational credit because of his parole violation. Pollard

       earned the credit; however, the credit could not be applied to reduce his

       sentence for dealing in cocaine because he earned the credit within forty-five

       days of his release date. Ind. Code § 35-50-6-3.3(j). Had he obtained his degree

       earlier, or if the time remaining until his release date had been longer, some or

       all of the credit earned could have been applied to his earlier incarceration.

       Nothing, however, in Rodgers suggests that Pollard should be able to “bank”

       credit time to be used toward a future incarceration due to a parole violation.

       To the contrary, this court observed that Rodgers’s “entitlement to the

       education credit time accrued immediately upon his completion of the degree.”

       Rodgers, 705 N.E.2d at 1042; see Ind. Code § 35-50-6-1(c) (providing that “[a]

       person whose parole is revoked shall be imprisoned for all or part of the


       Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017       Page 6 of 7
       remainder of the person’s fixed term . . . less the credit time the person has

       earned since the revocation”); see also Randolph v. Buss, 956 N.E.2d 38, 41 (Ind.

       Ct. App. 2011) (holding that petitioner was not entitled to unused educational

       credit time upon revocation of parole), trans. denied. Pollard has not shown that

       the trial court erred when it declined to apply the educational credit time earned

       for his 2011 completion of a bachelor’s degree to his reincarceration for a parole

       violation.


                                                  Conclusion
[14]   The trial court properly denied Pollard’s motion for educational credit time.

       We affirm.


[15]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 36A01-1603-CR-659| May 23, 2017      Page 7 of 7
