MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           May 25 2018, 11:26 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
John Pinnow                                              Monika Prekopa Talbot
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua Cole Smith,                                       May 25, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-73
        v.                                               Appeal from the Montgomery
                                                         Circuit Court
State of Indiana,                                        The Honorable Harry Siamas,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         54C01-1511-PC-3697



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018                   Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Joshua Smith (Smith) appeals the post-conviction court’s

      denial of his petition for post-conviction relief.


[2]   We affirm.


                                                    ISSUE
[3]   Smith presents one issue on appeal, which we restate as: Whether the post-

      conviction court properly denied Smith’s petition for post-conviction relief,

      where Smith had at first been mistakenly released from the Indiana Department

      of Correction (DOC) and then reincarcerated to serve his outstanding executed

      sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 9, 2001, Smith was convicted in Florida of armed burglary of dwelling

      with a firearm, a 1st Degree felony; and grand theft of a firearm, a 3rd Degree

      felony. Smith was sentenced to serve a “[S]plit sentence: 2 years Community

      Control followed by 4 years of probation.” (Appellant’s Exh. Vol. I, p. 188).

      On August 27, 2001, a petition to revoke Smith’s probation was filed and a

      warrant of arrest was ordered. Smith was rearrested in March 2002, but was

      released on July 30, 2002, “on condition that he reports to Community Control

      under [the] previous conditions.” (Appellant’s Exh. Vol. I, p. 188). In

      September and October of 2002, two petitions to revoke Smith’s probation were

      filed. Smith’s pre-trial release was subsequently revoked and an arrest warrant


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 2 of 21
      was ordered. By that time, Smith had already relocated to Indiana and was

      therefore not rearrested.


[5]   On October 31, 2003, in Tippecanoe County, Indiana, in Cause Number

      79D02-310-FB-00075 (FB-75), the State filed an Information, charging Smith

      with conspiracy to commit dealing in methamphetamine, a Class B felony; and

      possession of two or more chemical reagents/precursors with intent to

      manufacture a controlled substance, a Class D felony. Pursuant to a plea

      agreement, Smith pleaded guilty to the Class B felony conspiracy to commit

      dealing in methamphetamine, and the State dismissed the remaining Count.

      The trial court at that point sentenced Smith to six years in the DOC, with two

      years suspended to probation. On June 21, 2004, Smith was transferred from

      the Tippecanoe County Jail to the “New Directions Monitor House,” a drug

      treatment facility. (Appellant’s Exh. Vol. I, p. 189). On July 14, 2004, against

      the advice of the staff at New Directions Monitor House, Smith left the facility,

      and when contacted, he “confirmed that he had not made any contact with the

      Tippecanoe County Probation since leaving” New Directions Monitor House.

      (Appellant’s Exh. Vol. I, p. 189). A petition to revoke Smith’s probation was

      filed, and a warrant of arrest was ordered.


[6]   On September 2, 2004, in Montgomery County Superior Court under Cause

      Number 54D01-040-FD-00268 (FD-268), the State filed an Information,

      charging Smith with four Counts of fraud, Class D felonies; and one Count of

      receiving stolen property, a Class D felony. On November 18, 2004, Smith

      failed to appear at his trial and was tried in absentia. Smith was then found

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 3 of 21
      guilty only of the Class D felony receiving stolen property. The same day, a

      sentencing hearing was conducted and Smith was ordered to execute a one and

      one-half-year sentence in the DOC. That sentence was to run consecutive to

      Smith’s six-year sentence under FB-75 in Tippecanoe County.


[7]   On January 7, 2005, in Montgomery Circuit Court, the State charged Smith

      with multiple Counts under five Causes. In 54C01-0501-FC-00005 (FC-5),

      Smith was charged with one Count of conspiracy to commit theft, a Class D

      felony. In 54C01-0501-FC-00006 (FC-6), Smith was charged with one Count of

      forgery, a Class C felony; and one Count of conspiracy to commit forgery, a

      Class C felony. In 54C01-0501-FC-00007 (FC-7), Smith was charged two

      Counts of forgery, Class C felonies; one Count of conspiracy to commit forgery,

      a Class C felony; and one Count of attempt to commit forgery, a Class C

      felony. In 54C01-0501-FC-00008 (FC-8), Smith was charged with eight Counts

      of forgery, Class C felonies; and one Count of theft, a Class D felony. Finally,

      in 54C01-0501-FC-00009 (FC-9), Smith was charged with seven Counts of

      forgery, Class C felonies; and one Count of conspiracy to commit forgery, a

      Class C felony.


[8]   On June 17, 2005, pursuant to an agreement, Smith pleaded guilty to Class D

      felony conspiracy to commit forgery in FC-5; Class C felony conspiracy to

      commit forgery in FC-6; Class C felony conspiracy to commit forgery in FC-7;

      Class C felony forgery in FC-8; and Class C felony conspiracy to commit

      forgery in FC-9. The State agreed to dismiss the remaining outstanding charges

      under each Cause Number. The trial court afterward accepted Smith’s guilty

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 4 of 21
       plea and sentenced Smith as follows: in FC-5, a sentence of one and one-half

       years; and four-year sentences on each of the Counts under FC-6, FC-7, FC-8,

       and FC-9. Smith’s sentences were to run consecutive, for an aggregate sentence

       seventeen and one-half years. However, five and one-half years were

       suspended to probation. The plea agreement also stipulated that Smith’s

       seventeen and one-half year sentence under the five Causes would run

       consecutive to the one and one-half-year sentence under FD-268. Also, Smith

       expressed at his sentencing hearing that he understood that his seventeen and

       one-half year sentence under FC-5, FC-6, FC-7, FC-8, and FC-9 would run

       consecutive to his six-year sentence under FB-75, and to any other sentence

       imposed in Florida due to his probation violation.


[9]    On February 22, 2006, under FB-75, the trial court determined that Smith had

       violated his probation and ordered Smith to serve four years, the balance of his

       previously suspended sentence in Tippecanoe County. In June of 2006, Smith

       completed his Montgomery Superior Court sentence under FD-268. Then in

       September of 2007, Smith completed his sentence under FB-75.


[10]   The record shows that Smith’s seventeen and one-half year sentence in

       Montgomery Circuit Court under FC-5, FC-6, FC-7, FC-8, and FC-9, did not

       display on the DOC website. Instead of serving the executed portion of that

       sentence in Indiana, on September 13, 2007, Smith was directly transferred

       from the Indiana DOC to the Florida DOC to serve a four-year sentence based

       on a probation violation. In 2010, Smith was released from the Florida DOC

       and he returned to Indiana. Smith lived in Terre Haute and Crawfordsville,

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 5 of 21
       Indiana, where he held various jobs in each town. Smith also lived a year in

       Texas working as a construction worker. In 2014, Smith fathered a son. The

       record shows that Smith’s son has since been declared a Child In Need of

       Services and is currently in foster care. The Indiana Department of Child

       Services has also filed a petition to terminate Smith’s parental rights.


[11]   On July 24, 2014, in Montgomery County, the State filed an Information,

       charging Smith with one Count of possession of paraphernalia, a Class A

       misdemeanor. Smith was later sentenced to eighty-six days in Montgomery

       County Jail. On May 20, 2015, in Montgomery County under Cause Number

       54CO1-1505-F5-001501 (F5-1501), the State filed an Information, charging

       Smith with driving with a suspended license, a Class A infraction; possession of

       methamphetamine, a Level 5 felony; possession of marijuana, a Class B

       misdemeanor; and for being a habitual offender. Smith entered into a plea

       agreement with the State and the trial court ordered the probation department

       to prepare a presentencing report. As a result, it was discovered that Smith had

       not served the executed portion of his seventeen and one-half year as sentenced

       in FC-5, FC-6, FC-7, FC-8, and FC-9, in Montgomery County. 1 On August 23,




       1
        The record shows that the State filed a petition to revoke the five and one-half years of probation in FC-5,
       FC-6, FC-7, FC-8, and FC-9. However, the State later dismissed that petition.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018                        Page 6 of 21
       2015, the DOC took custody of Smith and recommitted him to serve the

       executed portion of his sentence under FC-5, FC-6, FC-7, FC-8, and FC-9. 2


[12]   On November 16, 2015, Smith, pro se, filed a petition for post-conviction relief,

       arguing, in part, that the reinstatement of the executed portion of his sentence

       under FC-5, FC-6, FC-7, FC-8, and FC-9, was unconstitutional due to the delay

       in recommitting him to serve that sentence. On November 24, 2015, the trial

       court appointed a public defender for Smith. On June 2, 2017, through his

       counsel, Smith filed an amended post-conviction relief petition which alleged

       that his recommitment to the Indiana DOC after he had been released from the

       Florida DOC, “violates the principles of equity.” (Appellant’s App. Vol. II, p.

       36).


[13]   On December 11, 2017, the post-conviction court conducted an evidentiary

       hearing. During his direct examination, Smith testified that after he completed

       his Florida sentence in 2010, the Florida DOC issued him a “bus ticket to Terre

       Haute.” (PCR Tr. p. 11). Smith claimed that he “didn’t realize that there was

       an unexecuted sentence” in Indiana, because after he was directly transferred

       from the Tippecanoe County Jail to the Florida DOC, he thought that his

       seventeen and one-half year sentence under FC-5, FC-6, FC-7, FC-8, and FC-9,

       run concurrent with his Florida sentence. (PCR Tr. p. 11). Smith then claimed




       2
         Following Smith’s recommitment to the DOC, Smith withdrew his plea and the State dismissed the
       Information.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018                 Page 7 of 21
that the reinstatement of his prior sentence under FC-5, FC-6, FC-7, FC-8, and

FC-9 was inequitable


        because one[,] I have a son that was born June [23, 2014]. Right
        now he’s in foster care and if my sentence had been executed
        when it properly should have I would be out there right now to
        take care of my son and he wouldn’t be in foster care. Also, I
        believe I’m being held accountable for the [S]tate’s negligence. I
        also believe that if I did anything to compromise my sentence as
        escape for example, I’d be held accountable by time being added
        to my sentence. In this case the [S]tate made the mistake so I feel
        like they should have some accountability, possibly and time
        being deducted from my sentence. Also, I feel like I haven’t been
        given the same opportunity that every other offender in the State
        of Indiana has been given to execute their sentence in a fair and
        timely manner. I can go on all day talking about why it’s not
        fair, but those are the main reasons.


(PCR Tr. p. 16). During Smith’s cross examination, the following exchange

then occurred between the State and Smith:


        [State]. You were in court when you got sentenced right?


        [Smith]. Yes sir.


        [State]. You understood you had a total sentence of seventeen
        and a half years?


        [Smith]. Yes sir.


        [State]. And twelve of those had to be executed?


        [Smith]. Yes sir.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 8 of 21
               [State]. And you were aware when you got cut loose by Florida
               that you hadn’t done that Indiana time right?


               [Smith]. I was not aware of that because and I’ll explain. I
               never, I did recall in my sentencing and now that I’ve read the
               transcripts I know I did agree to and I was told that the sentence
               would be ran [sic] consecutive with Florida, but I thought at the
               time I was cut loose from Florida I did not remember that and I
               thought that something had got ran concurrent somehow.


       (PCR Tr. pp. 18-19). On January 2, 2018, the post-conviction court issued its

       findings of fact and conclusions thereon, denying Smith’s petition for post-

       conviction relief.


[14]   Smith now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[15]   Under the rules of post-conviction relief, the petitioner must establish the

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

       succeed on appeal from the denial of relief, the post-conviction petitioner must

       show that the evidence is without conflict and leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Id. at 975. The purpose of post-conviction relief is not to provide a

       substitute for direct appeal, but to provide a means for raising issues not known

       or available to the defendant at the time of the original appeal. Id. If an issue

       was available on direct appeal but not litigated, it is waived. Id.
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 9 of 21
[16]   Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       cannot affirm the judgment on any legal basis, but rather, must determine if the

       court’s findings are sufficient to support its judgment. Graham v. State, 941

       N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962.

       Although we do not defer to the post-conviction court’s legal conclusions, we

       review the post-conviction court’s factual findings under a clearly erroneous

       standard. Id. Accordingly, we will not reweigh the evidence or judge the

       credibility of witnesses, and we will consider only the probative evidence and

       reasonable inferences flowing therefrom that support the post-conviction court’s

       decision. Id.


                                              I. Delayed Sentence


[17]   At the post-conviction hearing, Smith did not seek an alteration of his executed

       sentence under FC-5, FC-6, FC-7, FC-8, and FC-9; rather, he asked to be

       discharged from incarceration because the DOC delayed five years before

       recommitting him to serve his seventeen and one-half year sentence. In support

       of his claim, Smith relied on the principles of equity articulated in Woods v.

       State, 583 N.E.2d 1211 (Ind. 1992).


[18]   In Woods, Woods had been released from jail while he was awaiting the

       resolution of his appeal. Id. at 1212. After Woods’s conviction had been

       affirmed by our court and certified to the trial court, the trial court delayed five




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 10 of 21
       and one-half years before ordering Woods’s sentence executed. Id. In ordering

       that Woods be discharged from incarceration, our supreme court held that:


               Through no fault of [Woods], the State delayed the
               commencement of his sentence for more than five and one-half (5
               ½ ) years. Thus . . . the sword of Damocles dangled over the
               head of [Woods] for that five and one-half (5 ½) year period. We
               hold that the trial court in fact lost jurisdiction over appellant by
               reason of this undue delay and that the motion for discharge
               should have been granted . . . . we now hold a court loses
               jurisdiction if it does not act within a reasonable time after the
               certification of the affirmance of a conviction.


               ****


               the execution of the sentence in fact does violate the principles of
               equity and the requirements of prompt action on the part of the
               State in discharging its duties in criminal cases.


       Id. at 1212-13. One of equitable factors weighed by the Woods court was the

       fact that, during the five and one-half year delay, Woods had stayed out of

       trouble, had supported his children, and had developed health problems. Id. at

       1213.


[19]   The post-conviction court in this case made a thorough analysis of Woods in its

       conclusions of law, stating, in pertinent part,


               20. [Smith] has the burden of establishing his grounds for relief
               by a preponderance of the evidence.


               21. Smith does not challenge the sentence [under FC-5, FC-6,
               FC-7, FC-8, and FC-9 as] originally ordered. . . . . Instead, Smith
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 11 of 21
        challenges his incarceration for the reason that he was released
        from custody mistakenly and over five years lapsed before IDOC
        detained and placed him back to custody. He asserts that
        pursuant to the holding in Woods v State, 583 N.E.2d 1211 (Ind.
        1992), the Indiana Department of Corrections [sic] is detaining
        him illegally. Smith demands that the [post-conviction court]
        order[s] his immediate release from [the] IDOC custody so that
        he can begin to serve the 5 ½ year probation term . . . . . He
        requests discharge of the executed portion of the sentence based
        on undue delay in carrying out the sentence.


        ****


        25. [Smith] argues that his circumstances are so similar to those
        of the [d]efendant in Woods v State, 583 N.E.2d 1211 (Ind. 1992)
        that the holding in Woods requires this Court to order his
        immediate release from IDOC custody. The defendant in Woods
        was convicted of reckless homicide. The court sentenced him to
        five years, two executed and three suspended. [Woods] appealed
        his conviction, and he remained free during the appeal process.
        The appellate court affirmed [Woods’s] conviction but the trial
        court delayed ordering his commitment to the Department of
        Corrections [sic] for five and [one-half] years. During that time
        the defendant provided for his two children, had no arrests, and
        had developed some health problems. The Indiana Supreme
        reiterated that an American citizen is entitled to live without the
        Damocles sword dangling over his head; and that the defendant’s
        sentence did violate the principles of equity and the requirements
        of prompt action on the part of the State in discharging the duties
        in criminal cases. The Supreme Court set aside the defendant’s
        commitment and discharged him.


        The State argues, in opposition that if the [post-conviction court]
        must apply principles of equity in its analysis in the lawfulness of
        [Smith’s] IDOC detention, then the [post-conviction court] must
        consider whether [Smith] has clean hands. The unclean hands
Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 12 of 21
        doctrine demands that one who seeks relief in a court of equity
        must be free of wrongdoing in the matter before the court.
        Galloway v. Hadley, 881 N.E.2d 667, 678 (Ind. Ct App. 2008).
        The alleged wrongdoing must have an immediate and necessary
        relation to the matter being litigated. Id. For the doctrine of
        unclean hands to apply, the misconduct must be intentional. Id.
        The purpose of the unclean hands doctrine is to prevent a party
        from reaping benefits from his misconduct. Id. The doctrine is
        not favored by the courts and is applied with reluctance and
        scrutiny. Id.


        Another maxim of equity provides that whomever seeks equity
        must do equity, a principle whereby relief which involves
        perpetration of an injustice will be denied. Thus, he who would
        invoke the aid of a court of equity must show that he has done
        equity to him of whom he complains.


        Yet another maxim provides that equity follows the law. In
        application, this means that an equitable right cannot be founded
        on a violation of law. Hopper Resources, Inc. v. Webster, 878
        N.E.2d 418, 422 (Ind. Ct. App. 2007).


        26. The first question is whether the Woods court really intended
        to apply equitable principles in a criminal case; or when the
        [Woods court] stated that Wood’s [sic] sentence did violate the
        principles of equity, was the [Woods court] really just applying a
        fundamental fairness standard? It isn’t clear from the decision,
        but the [Woods court] does refer to principles of equity and
        therefore this [c]ourt must assume that it must apply principles of
        equity in its analysis of the issue presented by the case at bar.


        27. While the facts of this case are similar to the facts in the
        Woods[’s] case in many respects, there are significant differences.
        First, Woods challenged the inaction of the [trial court] in
        ordering his commitment to the DOC. [Smith] here challenges

Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 13 of 21
        the ability of the DOC to require him to serve his sentence after
        the DOC mistakenly released him from custody. It was not the
        DOC’s inaction that caused the delay, it was the DOC’s mistake
        (which went undetected until [Smith] committed another
        offense).


        Secondly, and most importantly Woods was waiting for the [trial
        court] to order his commitment to begin his sentence. However,
        [Smith] was well aware that a mistake had been made by DOC.
        At the sentencing hearing on June 17, 2005[,] Smith stated that
        he understood that any sentence that the Montgomery Circuit
        Court ordered would be consecutive to the Montgomery
        [S]uperior Court sentence that he was serving at that time. In
        addition, Smith acknowledged during the sentencing hearing that
        he knew that he had a detainer pending against him from the
        State of Florida. Furthermore, he acknowledged that he
        understood that any sentence that he received from the
        Montgomery Circuit Court would run consecutive to any
        sentence that he might receive in Florida. He also stated that he
        had the pending case in Tippecanoe County and that he
        understood that any Montgomery Circuit Court sentence must be
        served consecutive to any Tippecanoe County sentence that he
        might receive. [Smith] wasn’t waiting to be committed to [the]
        DOC [in order] to begin [his sentence under FC-5, FC-6, FC-7,
        FC-8, and FC-9]; he was evading that sentence. The proof is that
        [Smith] was well aware that he had five and a half years of
        probation to serve after he had served his sentences and finally
        was released from custody (presumably by the State of Florida).
        He was under a duty to report to his probation officer when he
        was released from custody. [Smith] never did that. It was not
        the duty of the probation department to find [Smith] [i]n order
        for [Smith] to begin his period of probation. It was [Smith’s]
        duty to report to probation as soon as he was released.
        Therefore, [Smith] effectively evaded justice for over five years
        after his mistaken release.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 14 of 21
        Thirdly, while Woods led a law-abiding life during the five years
        between the hand down of the appellate court decision and the
        trial court’s commitment of him to [the] DOC, [Smith] did not.
        Smith was arrested in 2014 for [p]ossession of a [s]yringe. He
        was in jail for two weeks. In 2014 he [] was charged with
        [p]ossession of [m]arijuana and received a [ninety-day] sentence.
        On May 15, 2015[,] [S]mith was arrested in Montgomery County
        and charged with [p]ossession of [m]ethamphetamine,
        [p]ossession of [m]arijuana and [d]riving [w]hile [s]uspended.
        Eventually Smith entered into a plea agreement with the State.
        When [the] DOC incarcerated [Smith], he withdrew his plea and
        the State dismissed the Information.


        Based on these much different circumstances[,] the [post-
        conviction court] finds that the Woods decision does not compel
        the [post-conviction court] to ignore [Smith’s] wrongdoing in
        evading justice. Smith knew that [the] IDOC mistakenly
        released him because he knew that he had not served the [twelve-
        year] executed sentence that [had been] ordered. He also knew
        that he was to report to probation after his release but he never
        did. This was a violation of his probation terms. Justice is not a
        game[,] but [Smith] certainly was gaming the system and evading
        the executed sentence that he knew he had not served.


        28. The Woods court also held that the State is required to act
        promptly in discharging its duties in criminal cases. While it is
        clear that [the] IDOC did not promptly discharge its duties in
        carrying out [the sentence under FD-5, FC-6, FC-7, FC-8, and
        FC-9] between 2005 and 2010; it is just as clear that [the] IDOC
        made a mistake. [The] IDOC acted promptly to correct the
        mistake as soon as the mistake was discovered. All the while
        [Smith] was free even though he was well aware that by a stroke
        of luck he had never served any portion of the seventeen and
        [one-half] year sentence that . . .[was] ordered in 2005.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 15 of 21
               29. [Smith] has failed to carry out his burden of proof. His
               petition for post-conviction relief should be denied.


       (Appellant’s Corrected App. Vol. II, pp. 60-64).


[20]   Smith now argues that the post-conviction court erroneously distinguished his

       case from Woods in Conclusion #27. He challenges the first distinguishing

       factor cited by the post-conviction court that unlike the defendant in Woods,

       who challenged the inaction of the trial court in ordering his recommitment to

       the DOC, the delay in the commencement of Smith’s already imposed sentence

       under FC-5, FC-6, FC-7, FC-8, and FC-9, was solely on the DOC and not on

       the trial court. Smith claims that “[t]his is not a significant difference because

       the common denominator in both cases is mistakes by the court system.”

       (Appellant’s Br. p. 15). Turning to the facts of this case, unlike the defendant in

       Woods, who challenged the inaction of the trial court in ordering his

       recommitment to the DOC, Smith’s sentence had been imposed by the trial

       court, and presumably due to a clerical error on the Indiana DOC website,

       Smith was mistakenly released to the Florida DOC prior to serving his sentence

       under FC-5, FC-6, FC-7, FC-8, and FC-9. Moreover, Smith’s plea agreement

       for Causes FC-5, FC-6, FC-7, FC-8, through FC-9, stipulated that the executed

       portion of Smith’s seventeen and one-half year sentence under the five cases

       would run consecutive to Smith’s one and one-half-year sentence under FD-

       268. In addition, at the sentencing hearing for Causes FC-5, FC-6, FC-7, FC-8,

       through FC-9, Smith stated that he was aware that his seventeen and one-half

       year sentence under those five cases would run consecutive to his six-year

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 16 of 21
       sentence under FB-75 and consecutive to any sentence imposed by the State of

       Florida due to his probation violation.


[21]   Smith next argues that there was no indication from the Woods case that Woods

       “immediately surrendered himself to the trial court once he lost on appeal.

       Instead, [Woods] continued to live his life of freedom, worked, and supported

       his children. When he was ordered to surrender and serve his sentence, he

       moved for [a] discharge[] based on the delay in ordering his DOC

       commitment.” (Appellant’s Br. p. 15). Smith contends that he too, like

       Woods, is seeking “equitable relief in a manner similar to what was ordered in

       Woods. He no more gamed the system than Woods did.” (Appellant’s Br. p.

       16). Again, we disagree. The five and one-half year delay in the recommitment

       of Woods was because the trial court had delayed in ordering Woods’s sentence

       to be executed. Woods, 583 N.E.2d at 1213. Woods was not gaming the legal

       system; rather, the legal system had regrettably failed him because the trial

       court had delayed ordering his sentence in a timely fashion. We find that the

       stark contrast between Woods and Smith, is that in Smith’s case, the trial court

       had ordered the sentence, and the delay in recommitting Smith to serving his

       sentence was due to a clerical mistake committed by the DOC.


[22]   Lastly, as noted, it was the principles of equity that led to Woods’s discharge

       from incarceration in the Woods case. One of the equitable factors weighed by

       the Woods court was that during the five and one-half year delay, Woods had

       stayed out of trouble, had supported his children, and had developed health

       problems. Woods, 583 N.E.2d at 1213. In the instant case, when Smith

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 17 of 21
       returned to Indiana for an interim period, he avoided legal trouble and he

       fathered a son. However, between 2014 and 2015, Smith committed other

       crimes. Therefore, we find that the equitable principles that operated to effect

       Woods’s discharge in Woods have not been triggered here.


[23]   Smith makes an additional argument stating that the post-conviction court

       erroneously relied on the unclean hands doctrine in denying him relief.

       Specifically, Smith argues that “he was not guilty of intentional misconduct.

       His premature release from prison was caused by the Indiana [DOC]

       mistakenly releasing him . . . . Smith did not falsify records or engage in fraud

       to cause the error.” (Appellant’s Br. pp. 12-13). The unclean hands doctrine is

       an equitable tenet that demands one who seeks equitable relief to be free of

       wrong doing in the matter before the court. Ruder v. Ohio Valley Wholesale, Inc.,

       736 N.E.2d 776, 780 (Ind. Ct. App. 2000). In addition, the alleged wrongdoing

       must have an immediate and necessary relation to the matter being litigated.

       Id. The purpose of the unclean hands doctrine is to prevent a party from

       reaping benefits from his misconduct. Id. at 781. To the extent that Smith

       claims that he is without blame as to his delayed sentence, Smith is mistaken.

       Smith knew he had an outstanding seventeen and one-half year sentence to

       serve in Indiana and he was aware that he should have surrendered to

       authorities in Indiana at the very least when he returned to Indiana from

       Florida. Even if we were to credit Smith’s testimony proffered at his post-

       conviction hearing—that he thought that the executed portion of his sentence

       under FC-5, FC-6, FC-7, FC-8, and FC-9 ran concurrently with his Florida


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 18 of 21
       sentence—when Smith was released from the Florida DOC, Smith had a duty

       to report for probation. Yet, the record shows that when Smith returned to

       Indiana in 2010, he did not report to the relevant probation department and that

       fact alone goes to prove that Smith was avoiding his Indiana sentence.


[24]   The State then argues that Smith’s case is more akin to our holding in Beliles v.

       State, 663 N.E. 2d 1168 (Ind. Ct. App. 1996). In Beliles, just like here, Beliles

       was convicted and sentenced under the terms of a written plea agreement on

       December 20, 1990. Id. at 1170. The parties agreed that Beliles was to receive

       the maximum twenty-year sentence with six years suspended. Id. However, an

       error was made in the preparation of the sentencing order, and the order stated

       that Beliles received a twenty-year sentence with fourteen years suspended and

       six years executed. Id. Beliles was committed to the DOC under this incorrect

       sentencing order. Id. Less than a month later, on January 18, 1991, a corrected

       sentencing order reflecting the actual sentence to be imposed under the plea

       agreement was entered by the judge pro tem; however, no notice of that

       correction was given to either Beliles or his attorney. Id. Moreover, no

       corrected abstract of the judgment was prepared nor was the corrected

       sentencing order/judgment forwarded to the DOC. Id. In 1993, based on his

       projected release from prison in December of 1993, Beliles was placed in a work

       release center. Id. Beliles had secured employment after his anticipated release

       date, and he also had made plans regarding housing and the purchase of a used

       car. Id. However, on September 1, 1993, the sitting trial judge (the successor to

       the judge who had presided over the trial court during the earlier proceedings in

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 19 of 21
Beliles’ case) entered a new abstract of judgment reflecting Beliles’s actual

sentence of an executed term of fourteen years. Id. The DOC was notified and

Beliles was picked up at the work release center, shackled, and taken to the

DOC to serve the rest of his fourteen-year sentence. Id. We then held that


        The present case is distinguishable from Woods because the sword
        here is double-edged and cuts the other way. Woods had been
        free and had lived a law-abiding life during the period in which
        the sword hung over his head-time which he could have spent
        serving his sentence. On the other hand, in the present case, the
        “sword” which hung over Beliles’ head while he was in prison
        properly serving his sentence consisted of the chance that the
        error in the sentencing order would be corrected depriving him of
        the windfall of a shorter executed sentence than the one he had
        bargained for under his plea agreement. . . . . Beliles has not
        shown prejudice beyond frustrated expectations. Therefore, the
        equitable principles that operated to effect the prisoner’s
        discharge in Woods have not been triggered here.


Id. at 1173. Just like the defendant in Beliles, Smith essentially seeks a windfall

from an inadvertent clerical error that failed to display his correct sentence.

The intent all along was to have Smith serve the executed portion of his

seventeen and one-half year sentence which was consecutive to all his other

sentences in Montgomery and Tippecanoe County, as well as any sentence that

Florida intended to impose. Allowing Smith to be discharged now from the

DOC would create a windfall of a sentence shorter than the one he had

bargained for under his plea agreement under FC-5, FC-6, FC-7, FC-8, and FC-

9. While the delay in commencement of Smith’s sentence is regrettable,

pursuant to Woods and Beliles, Smith has not carried his burden of establishing

Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 20 of 21
       that he is entitled to post-conviction relief. Accordingly, we hold that the post-

       conviction court properly denied Smith’s relief.


                                              CONCLUSION

[25]   Based on the above, we conclude that Smith has failed to prove that his claim

       warrants post-conviction relief.


[26]   Affirmed.


[27]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-73 | May 25, 2018   Page 21 of 21
