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
                                                                      FILED
                                                                    Jan 22 2013, 8:48 am
judicata, collateral estoppel, or the law
of the case.                                                               CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court


APPELLANT PRO SE:

DAVID FROHWERK
Westville, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID FROHWERK,                                  )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )       No. 46A04-1204-MI-211
                                                 )
MARK LEVENHAGEN,                                 )
                                                 )
       Appellee.                                 )


                     APPEAL FROM THE LAPORTE CIRCUIT COURT
                         The Honorable Thomas Alevizos, Judge
                             Cause No. 46C01-1203-MI-102



                                      January 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       David Frohwerk, pro se, appeals from the denial of his Verified Petition for Writ

of Habeas Corpus asserting that he was denied credit time. Frohwerk raises one issue

which we revise and restate as whether the court abused its discretion in denying his

petition. We affirm.

       The relevant facts follow.         On March 16, 2012, Frohwerk, an inmate at the

Westville Correctional Facility in LaPorte County, filed his Verified Petition for Writ of

Habeas Corpus pursuant to Ind. Code § 34-25.5-1-1 in which he stated:

       b)      executive directive #11-41 (July 27, 2011) – entitles David
               Frohwerk #985446 (“Frohwerk”) – to approximately 1,095 days
               (Credit Class III, Time Served Credits) – for the time Frohwerk
               served on probation under St. Joseph County Superior Court Cause
               No. 71D04-9512-CF-576 (“CF 576”);[1] and

       c)      executive directive #11-41 (July 27, 2011) – entitles Frohwerk to
               approximately 1,825 days (Credit Class III, Time Served Credits) –
               for the time Frohwerk served on probation under St. Joseph County
               Superior Court Cause No. 71D03-9710-CF-466 (“CF 466”);[2] and

       d)      Neither the I.D.O.C[.] or the respondent – will apply these time
               served credits pursuant to executive directive # 11-41 (July 27,
               2011) – despite grievances and appeals taken from the
               forementioned [sic] denials.

               Frohwerk has exhausted all available administrative remedies.

Appellant’s Appendix at 7-8. Frohwerk’s petition also stated that his rights under the

Eighth Amendment to the U.S. Constitution and Sections 16, 18, and 37 of Article 1 of

the Indiana Constitution were violated due to his continued incarceration and that he “is



       1
         The record does not contain information pertaining to the conviction, sentence, or time served
under CF 576.
       2
         The record does not contain information pertaining to the conviction, sentence, or time served
under CF 466.
                                                  2
entitled to the time served credits” stemming from a “legitimate liberty interest [which]

was created by executive directive #11-41 . . . .” Id. at 8. On March 27, 2012, the court

denied Frohwerk’s petition.

       Before addressing Frohwerk’s arguments, we observe that although he is

proceeding pro se, such litigants are held to the same standard as trained counsel and are

required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.

2004), trans. denied. This court will not “indulge in any benevolent presumptions on

[their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal.”

Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 689 (Ind. Ct. App. 2009), reh’g

denied, trans. denied (citation omitted).

       We also observe that the State elected not to file a brief in this matter. When an

appellee fails to submit a brief, we do not undertake the burden of developing appellee’s

arguments, and we apply a less stringent standard of review, that is, we may reverse if the

appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct.

App. 2006). This rule was established so that we might be relieved of the burden of

controverting the arguments advanced in favor of reversal where that burden properly

rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).

Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d

337, 339 (Ind. Ct. App. 2008).

       The issue is whether the court abused its discretion in denying Frohwerk’s petition

for writ of habeas corpus. Ind. Code § 34-25.5-1-1 states: “Every person whose liberty is

restrained, under any pretense whatever, may prosecute a writ of habeas corpus to inquire

                                            3
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,

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)); see also Hardley v. State, 893

N.E.2d 740, 742 (Ind. Ct. App. 2008) (“The purpose of a writ of habeas corpus is to

determine the lawfulness of custody or detention of the defendant and may not be used to

determine collateral matters not affecting the custody process.”). “One is entitled to

habeas corpus only if he is entitled to his immediate release from unlawful custody.”

Partlow, 756 N.E.2d at 980 (quoting Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d

496, 498 (1978)); see also Dunn v. Jenkins, 268 Ind. 478, 479-480, 377 N.E.2d 868, 870-

871 (1978) (“[A] prisoner can only obtain a discharge through habeas corpus relief, not a

modification of his commitment.”); Hardley, 893 N.E.2d at 742 (“A defendant is entitled

to a writ of habeas corpus if he or she is unlawfully incarcerated and is entitled to

immediate release.”). “[A] petitioner may not file a writ of habeas corpus to attack his

conviction or sentence.” Partlow, 756 N.E.2d at 980 (citing Hawkins, 268 Ind. at 140,

374 N.E.2d at 498 (citing Ind. Post-Conviction Rule 1(1)(c)) (stating that a writ of habeas

corpus that attacks a conviction or sentence must be transferred to the court of conviction

and treated as though filed as a post-conviction relief petition))). We review the trial

court’s habeas decision for an abuse of discretion. Hardley, 893 N.E.2d at 742. Without

reweighing the evidence, this court considers only that evidence most favorable to the

judgment and reasonable inferences drawn therefrom. Id.

                                              4
       Frohwerk argues “that he is entitled to credit for days served on probation, as it is

Community Corrections/Court supervision or put another way – RESTRAINT upon his

liberty by the judicial branch of the State government.”          Appellant’s Brief at 3-4.

Specifically, Frohwerk claims that under Executive Directive #11-41 (“ED 11-41”), he is

entitled to approximately 600 days of credit for time served. Frohwerk requests his

“immediate release from approx. six hundred (600) days of illegal restraint put upon him

by the respondent and the Indiana Department of Corrections’ [sic] refusal to apply

‘TIME SERVED CREDIT’ for the days that [he] served on probation.” Id. at 5.

       Frohwerk attached in his appellant’s appendix a copy of ED 11-41 which is a

directive issued on June 27, 2011, by the Department of Correction presenting “several

revisions to the administrative procedures for Policy 01-04-101, ‘Adult Offender

Classification,’ and its appendices.” Appellant’s Appendix at 60. The first page of ED

11-41 states that “[t]hese changes are applicable to all facilities housing adult offenders . .

. .” Id. Frohwerk specifically directs our attention to Section L, paragraph 3 of the

revised Policy 01-04-101 which states:

       L.     Credit Time Calculation

              1.     An offender receives incarceration credit, and credit time on
                     the sentence for the day of release from a Department facility
                     to parole or court jurisdiction.

              2.     When an offender’s parole is revoked, and the offender is
                     returned to Department incarceration, the remaining time to
                     be served is calculated by determining a revised fixed term of
                     incarceration. The following formula is applied:

                     FTI =          FTI -          Time +        Time on
                     revised        prior          served        parole

                                              5
                3.         An offender does not receive time served credit, or credit time
                           on his/her sentence for the day the offender:

                           a.     Escapes.
                           b.     Absconds from parole or probation.

Id. at 92-93.

       ED 11-41 and Policy 01-04-101 govern the treatment of prisoners of the

Department of Correction. This court has previously noted that defendants often “blur []

the distinction between parole and probation.” Harris v. State, 762 N.E.2d 163, 167 (Ind.

Ct. App. 2002), reh’g denied, trans. denied. Probation is “[a] court-imposed criminal

sanction that, subject to stated conditions, releases a convicted person into the community

instead of sending the criminal to jail or prison.” Id. (emphasis added). A probationer

“specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Id.

(quoting Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006)). On the other

hand, parole is “[t]he release of a prisoner from imprisonment before the full sentence has

been served.”        Id.    Thus, there is an important distinction between the two in that

“‘[p]robation’ relates to judicial action taken before the prison door is closed, whereas

‘parole’ relates to executive action taken after the door has closed on a convict.” Id.

(emphases added).

       Frohwerk does not cite to authority for the proposition that ED 11-41 should be

applied to time served while on probation. Nor do we believe that such a result is

warranted. Indeed, Ind. Code § 35-38-2-3(g), which governs a court’s power to revoke

probation following a finding of a probation violation, specifically provides that the court

may impose sanctions including ordering the “execution of all or part of the sentence that

                                                  6
was suspended at the time of initial sentencing.” (Emphases added). We conclude that

Frohwerk’s arguments have no merit, and accordingly the court did not abuse its

discretion in denying Frohwerk’s petition.3

        For the foregoing reasons, we affirm the trial court’s denial of Frohwerk’s

Verified Petition for Writ of Habeas Corpus.

        Affirmed.


        3
          To the extent that Frohwerk’s arguments suggest that he is entitled to “credit time,” rather than
credit for time served while on probation, we observe that Section I of Policy 01-04-101, titled “Credit
Time and Incarceration Factors,” states the following:

        4.      Parole

                a.       The day a felon offender is released to parole, counts as a day of
                         incarceration. The offender receives credit time in accordance with the
                         credit class to which he/she is assigned.

                b.       Each day that the offender serves on parole, counts as a day served on
                         the sentence. The offender earns no credit time while on parole.

                c.       A parolee incarcerated under a parole violation warrant shall earn time
                         served and applicable earned credit time from the date of service of the
                         warrant.

Id. at 90-91 (emphasis added). Thus, both Sections L.1 and I.4.a merely provide that on the day that an
offender is released, he/she also earns a day of credit time. At no point, however, does Policy 01-04-101
provide that parolees are entitled to credit time and indeed, Section I.4.b specifically provides that persons
on parole do not earn credit time. This is in accordance with Ind. Code § 35-50-6-6 which provides:

        (a)     A person imprisoned for a crime earns credit time irrespective of the degree of
                security to which he is assigned. Except as set forth under IC 35-38-2.5.-5, a
                person does not earn credit time while on parole or probation.

        (b)     A person imprisoned upon revocation of parole is initially assigned to the same
                credit time class to which he was assigned at the time he was released on parole.

        (c)     A person who, upon revocation of parole, is imprisoned on an intermittent basis
                does not earn credit time for the days he spends on parole outside the institution.

(Emphases added). Ind. Code § 35-38-2.5.-5 provides, in subsection (e), that “[a] person confined on
home detention as a condition of probation earns credit for time served.” This court has observed that
defendants who are in a work release program may earn credit time. Reed v. State, 844 N.E.2d 223, 225
(Ind. Ct. App. 2006). Frohwerk does not suggest that either of these exceptions apply to his case.
                                                      7
BAILEY, J., and VAIDIK, J., concur.




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