MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Sep 27 2017, 10:17 am

this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert Jenkins                                           Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Jenkins,                                          September 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1510-PC-1787
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         49G01-1408-PC-40662
                                                         49G01-1408-PC-40663



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017            Page 1 of 8
[1]   Robert Jenkins, pro se, appeals the post-conviction court’s dismissal of his

      petition for post-conviction relief (“PCR”). Jenkins raises seven issues, which

      we consolidate, reorder, and restate as:

              1) Whether the court erred when it denied Jenkins’ motion to
                 appoint counsel;


              2) Whether the court abused its discretion when it failed to grant
                 Jenkins’ motion to continue his hearing; and


              3) Whether the court erred when it determined Jenkins failed to
                 exhaust his administrative remedies.


      We affirm.



                            Facts and Procedural History
[2]   Jenkins is presently serving a thirty-year sentence in the Indiana Department of

      Correction (“DOC”) for Class B felony armed robbery. On August 22, 2014,

      Jenkins filed a PCR petition asserting:

              The following programs have been completed by Jenkins while
              incarcerated, but he has not received any additional credit time
              for their completion


              a)       Substance Abuse Phase 1 (2010)


              b)       Substance Abuse Phase 2 (2010)


              c)       Substance Abuse Phase 3 (2010)

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 2 of 8
              d)       Thinking For A Change (2009)


              e)       Therapeutic community stages 1, 2, 3, and 4.


              Additionally, Jenkins completed on his own, [sic] a college-level
              study program from Blackstone Paralegal College with a
              Certificate in Paralegal Studies in 2011.


      (Appellant’s App. Vol. 2 at 16.) The PCR court set a hearing on Jenkins’

      petition for August 11, 2015. On September 19, 2014, the State Public

      Defender’s Office filed notice that it would not represent Jenkins in the

      proceeding, and Jenkins thereafter confirmed he wished to proceed pro se. In

      December 2014, the State filed an appearance and answer.


[3]   On July 10, 2015, the State filed a “Motion to Dismiss for Lack of Jurisdiction

      or in the Alternative, Motion for Summary Disposition,” (id. at 24), and a

      memorandum of law in support thereof. On July 17, Jenkins filed a motion to

      continue the evidentiary hearing; on July 20, he filed a motion for appointment

      of counsel; and on July 22, he filed a motion for earned good time credit. On

      July 30, Jenkins filed a response to the State’s motion to dismiss or for

      summary disposition. The PCR court took all the motions under advisement.


[4]   On August 11, 2015, the PCR court held the scheduled hearing on Jenkins’

      PCR petition. On September 16, 2015, the court entered an order denying

      Jenkins’ request for a continuance as moot, an order denying Jenkins’ request

      for counsel, and two final orders: one dismissed Jenkins’ petition for “Failure



      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 3 of 8
      to Exhaust Administrative Remedies,” (id. at 68-70), and the other denied

      Jenkins’ petition on the merits. (Id. at 71-3.)



                                 Discussion and Decision
                                  Motion for Appointment of Counsel

[5]   Jenkins asserts the PCR court erred by denying his July 20, 2015, motion for

      appointment of counsel. Neither the Sixth Amendment of the United States

      Constitution nor Article 1, Section 13 of the Indiana Constitution guarantee the

      right to counsel in post-conviction proceedings because such proceedings are

      not “criminal.” Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). Indiana

      PCR Rule 1(9)(a) states:

              Upon receiving a copy of the petition, including the affidavit of
              indigency, from the clerk of the court, the Public Defender may
              represent any petitioner committed to the Indiana Department of
              Correction in all proceedings under this Rule, including appeal, if
              the Public Defender determines the proceedings are meritorious
              and in the interests of justice. The Public Defender may refuse
              representation in any case where the conviction or sentence being
              challenged has no present penal consequences. Petitioner retains
              the right to employ his own counsel or to proceed pro se, but the
              court is not required to appoint counsel for a petitioner other
              than the Public Defender.


[6]   In this case, the court notified the Public Defender of Jenkins’ petition, and the

      Public Defender filed a notice of non-representation. The Public Defender was

      not required to represent Jenkins. See Rule 1(9)(a) (“Public Defender may

      represent”). Nor was the court required to appoint other counsel for Jenkins.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 4 of 8
      See id. (“court is not required to appoint counsel for a petitioner other than the

      Public Defender”); see also Rule 1(9)(c) (“Petitioner retains the right to proceed

      pro se, in forma pauperis if indigent, after counsel withdraws.”). We

      accordingly cannot find any error in the court’s denial of the motion for

      appointment of counsel Jenkins filed after the Public Defender had declined to

      represent him.


                                            Motion to Continue

[7]   Jenkins argues the PCR court erred in denying his motion for continuance of

      the evidentiary hearing.

              Typically, a fact-finding court is given discretion to act on an
              issue when it is in a better position than an appellate court to
              evaluate the factual context surrounding the issue. We will
              second-guess the fact-finding court only when it responds to that
              factual context in an unreasonable manner. Prof. Stroud has
              provided the following description of this standard of review:


                       Abuse of discretion review, like all mixed question review,
                       consists of an evaluation of facts in relation to legal
                       formulae. In the final analysis, the reviewing court is
                       concerned with reasonableness of the action in light of the
                       record.


              Therefore, a trial court’s exercise of discretion should be upset
              only when the court reached an erroneous conclusion and
              judgment, one clearly against the logic and effect of the facts and
              circumstances before the court or the reasonable, probable and
              actual deductions to be drawn therefrom.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 5 of 8
       Tapia v. State, 753 N.E.2d 581, 585 (Ind. 2001) (internal citations and

       quotations omitted).


[8]    Jenkins asserts he filed the motion for continuance because of his “struggles and

       difficulties . . . obtaining needed documentation and access to the law library.”

       (Appellant’s Br. at 12.) He claims the court erred by holding “the hearing,

       knowing [Jenkins] was not ready.” (Id.) However, “[c]ontinuances for

       additional time to prepare for trial are generally disfavored, and courts should

       grant such motions only where good cause is shown and such a continuance is

       in the interest of justice.” Hyppolite v. State, 774 N.E.2d 584, 595 (Ind. Ct. App.

       2002), trans. denied.


[9]    Jenkins filed his petition for PCR on August 22, 2014. On September 3, 2014,

       the PCR court scheduled the hearing on this petition for August 11, 2015. By

       mid-October 2014, Jenkins knew the Public Defender would not represent him.

       Thus, Jenkins had approximately ten months to gather documentation for the

       hearing, and we cannot hold the court abused its discretion when it denied

       Jenkins’ motion for continuance. See, e.g., id. at 597 (finding no abuse of

       discretion in denial of continuance when petitioner did not demonstrate he

       could have discovered necessary evidence if continuance was granted).


                                Exhaustion of Administrative Remedies

[10]   Jenkins alleges the PCR court erred in finding Jenkins failed to exhaust his

       administrative remedies. Our legislature has provided a mechanism by which

       incarcerated persons can earn credit against a sentence for completion of

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 6 of 8
       educational programs. See Ind. Code § 35-50-6-3.3. Following sentencing,

       when an incarcerated prisoner believes he has completed a program and

       qualifies for credit, “application for educational credit time must be made to

       and the initial ruling thereon made by the DOC.” Sander v. State, 816 N.E.2d

       75, 78 (Ind. Ct. App. 2004). We have so held because “the DOC alone is able

       to assess whether the applicant has met the behavior criterion set out in” the

       statute. Id.


[11]   When a petition for educational credit time is denied, the prisoner “must

       exhaust his administrative remedies within the DOC before appealing to a court

       because determinations altering credit time are the responsibility of the DOC.”

       Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct. App. 2008). Furthermore, when

       appealing the DOC’s decision to a court, the petitioner must be able to

       demonstrate “what the relevant DOC administrative grievance procedures are,

       and then that he has exhausted them at all levels.” Young v. State, 888 N.E.2d

       1255, 1257 (Ind. 2008).


[12]   Jenkins made no mention of exhaustion of administrative remedies in his PCR

       petition. At the hearing, Jenkins asserted he provided the evidence

       demonstrating exhaustion in response to the State’s motion to dismiss. Jenkins

       has directed us to nine pages of his Appendix, which he claims demonstrate

       exhaustion of administrative remedies. However, none of those memoranda

       and notes requesting copies of documentation from the DOC demonstrate the

       steps he needed to take to exhaust administrative remedies. Thus, Jenkins has

       not sustained his burden of showing what the appeal procedures were following

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017   Page 7 of 8
       a denial of credit time or that he exhausted them. We cannot say the PCR

       court erred in finding Jenkins failed to exhaust his administrative remedies. 1

       See, e.g., Members v. State, 851 N.E.2d 979, 983 (Ind. Ct. App. 2006) (dismissing

       appeal because PCR court had not had authority to review petition for

       educational credit time when petitioner had not exhausted administrative

       remedies).



                                                   Conclusion
[13]   The PCR court did not abuse its discretion in denying Jenkins’ motion to

       continue the evidentiary hearing or his motion to appoint counsel. Further,

       Jenkins has not demonstrated the PCR court erred in determining Jenkins had

       not exhausted his administrative remedies. We accordingly affirm the dismissal

       of Jenkins’ petition.


[14]   Affirmed.


       Brown, J., and Pyle, J., concur.




       1
         We note the post-conviction court entered two final orders. The first dismissed Jenkins’ petition for failure
       to exhaust administrative remedies, and the second denied his petition on the merits. If, however, Jenkins
       had not exhausted his administrative remedies, then the post-conviction court did not have authority to
       review the merits of his petition. See, e.g., Burks-Bey v. State, 903 N.E.2d 1041, 1043 (Ind. Ct. App. 2009) (“If
       an offender exhausts all of his administrative remedies through the DOC . . . , Indiana’s courts then have
       subject matter jurisdiction over a request for educational credit time.”). We, accordingly, decline to consider
       the order denying Jenkins’ petition on the merits.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017             Page 8 of 8
