Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                   Dec 27 2012, 8:51 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,

collateral estoppel, or the law of the case.                     court of appeals and
                                                                        tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

KENT A. EASLEY                                  GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                HENRY A. FLORES, JR.
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENT A. EASLEY,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 73A01-1207-CR-333
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                     APPEAL FROM THE SHELBY SUPERIOR COURT
                       The Honorable Dan E. Marshall, Special Judge
                             Cause No. 73D01-0004-CF-028



                                    December 27, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       After entering into a plea agreement that provided for a sentence of twenty years

with ten years executed in the Indiana Department of Correction (DOC) and ten years

suspended to probation regarding various drug offenses, Kent A. Easley twice had his

probation revoked for violations and is now serving the remainder of his suspended

sentence in the DOC. Easley’s appeal of the second probation revocation was dismissed

with prejudice by this Court because he failed to timely submit an appellant’s brief.

Thereafter, Easley petitioned for post-conviction relief, claiming that he should have

received credit time for substance abuse treatment that he completed prior to his original

sentencing and raising a number of issues related to his second probation revocation.

After a hearing, the post-conviction court denied all of Easley’s claims.

       Concluding that Easley is not entitled to the credit time he seeks and that his

remaining claims are barred by the doctrine of res judicata or procedurally defaulted, we

affirm the judgment of the post-conviction court.

                                          FACTS

       The facts and procedural history concerning Easley’s original conviction and his

subsequent probation revocations have previously been set forth by another panel of this

Court as follows:

       In December 2000, Easley pled guilty pursuant to a plea agreement to two
       counts of dealing cocaine as class B felonies and possession of marijuana as
       a class A misdemeanor in Shelby County Superior Court, and the trial court
       sentenced Easley to an aggregate term of twenty years with ten years
       executed and ten years suspended to probation.



                                             2
      In June 2007, a probation officer filed a petition to revoke Easley’s
      probation, and following fact-finding and dispositional hearings, the court
      found that Easley violated his probation and ordered that Easley serve three
      of the ten years of his previously-suspended sentence, gave Easley credit
      for time served, and ordered that probation continue following his release.
      On appeal from the revocation of his probation, Easley presented ten issues,
      and this court remanded solely for a determination of Easley’s total jail
      credit time and otherwise affirmed the court’s revocation determination.
      Easley v. State, 73A04-0810-CR-580 (Ind. Ct. App. August 4, 2009). The
      Shelby County Superior Court issued an order modifying its prior
      sentencing order on September 29, 2009.

      The Shelby County Probation Department filed a second petition to revoke
      Easley’s probation on February 24, 2010, which was amended by
      addendums filed on June 3, 2010, and September 20, 2010. Following a
      hearing, the Shelby County Superior Court issued an order on December
      22, 2010, finding that Easley had violated the terms of his probation and
      order[ing] him to serve the remaining seven years of his previously-
      suspended sentence in the DOC.

Easley v. Ind. Dep’t of Corr., No. 49A04-1202-PL-220 (Ind. Ct. App. Sept. 17, 2012).

Easley also appealed the trial court’s second revocation of his probation, but this appeal

was dismissed with prejudice after Easley failed to timely submit an appellant’s brief

after a number of extensions were granted.

      On April 23, 2012, Easley petitioned the Shelby County Superior Court for

additional credit time he claimed he had earned in 2000 for completing a certified

substance abuse treatment program while he was incarcerated in the Shelby County Jail

pending resolution of the original charges. In his “Successive Motion for Additional

Earned Credit Time” and the supporting memorandum and exhibits, Easley claimed to

have exhausted a number of grievance procedures in his pursuit of the credit time,

beginning with the instructor of the course and the Shelby County Jail prior to his

                                             3
conviction and including the trial court, the Shelby County Jail again, and ultimately the

DOC in the years following his conviction. Appellant’s App. p. 47-78.

       On May 7, 2012, Easley filed with the Shelby County Superior Court a document

entitled “Petitioner’s Automatic Amendments to Successive Additional Earned Credit

Time Motion.” Id. at 79. In this document, Easley added a number of claims unrelated

to his petition for credit time, but rather challenging his second probation revocation.

More particularly, Easley challenged the validity of a “re-arrest” warrant and claimed that

his double jeopardy rights were violated when the trial court ordered him to “re-serve the

7 executed years . . . again,” that the trial court judge acted without jurisdiction in finding

him guilty of a probation violation, and that the trial court had erred by ordering him to

pay court costs and fees related to his probation. Id. at 81, 83.

       The Shelby County Superior Court held a hearing on Easley’s amended post-

conviction petition on June 29, 2012. At the hearing, Easley made arguments paralleling

those in his petition regarding the credit time issue, the alleged double jeopardy concerns,

and the allegedly invalid re-arrest warrant. Easley also argued the fact that a judge who

had previously recused himself from the case may have signed the re-arrest warrant was

another reason that it was void. Easley made no mention at the hearing of his claims

regarding the trial court having no jurisdiction or the order to pay court costs and fees.

       At the conclusion of the evidence, the post-conviction court stated it would take

Easley’s request for credit time under advisement but denied each of Easley’s remaining

claims, stating:

                                              4
      I think you’re just wanting the Court to readdress issues that have
      previously been addressed or could have been addressed by this Court and
      the Indiana Court of Appeals, and have either been ruled adversely to you
      or have not previously been raised by you. I don’t find those are issues that
      are proper for me to hear . . . .

Tr. p. 20. On July 17, 2012, the post-conviction court entered an order denying Easley’s

request for credit time and reaffirming its denial of his remaining requests. Easley now

appeals.

                           DISCUSSION AND DECISION

      Easley raises numerous challenges to the trial court’s order denying his request for

post-conviction relief, some of which he presented to the post-conviction court and some

of which are being raised for the first time on appeal.       More particularly, Easley

contends:

      (1) that the trial court erred by denying him credit time for the substance
          abuse treatment he completed in 2000;

      (2) that the trial court erred by summarily denying his remaining claims
          because the public officials who brought about his second probation
          revocation were engaged in fraud;

      (3) that the re-arrest warrant issued before his second probation violation
          was invalid because it had been issued by a judge who had recused
          himself earlier in the proceedings;

      (4) that the judge who recused himself erred by failing to provide advance
          notice to Easley and not allowing him to select a special judge from a
          list of judges;

      (5) that the appointed special judge erred by failing to file an affidavit
          qualifying himself and that this failure resulted in the special judge
          having no jurisdiction over Easley’s probation revocation hearing;


                                           5
       (6) that prosecutorial misconduct and malicious prosecution mandated the
           reversal of his probation violation;

       (7) that the revocation of Easley’s probation subjected him to “double
           jeopardy sentencing;”

       (8) that the trial court erred by ordering Easley to pay certain costs and
           fees related to his probation;

       (9) that Easley did not waive any of his arguments by failing to timely
           object because he had mental defects at the time;

       (10) that the State’s brief fails to state a claim upon which relief can be
            granted because of procedural errors such as failing to submit an
            appendix;

       (11) that the State waived its arguments of waiver and res judicata as to
            Easley’s claims of error because it failed to present them to the trial
            court;

       (12) that this Court and the Indiana Supreme Court denied Easley his right
            to a full and fair appeal when it dismissed the appeal from his second
            probation revocation because the trial court clerk did not file the
            correct transcripts until after Easley’s appeal was dismissed; and

       (13) that this Court denied Easley his right to a full and fair appeal as to his
            second probation violation by releasing transcripts to appellees before
            they were released to Easley.

              I. Easley’s Claims are in the Nature of Post-Conviction Relief

       We first observe that Easley’s requests for relief, including his request for credit

time, are in the nature of post-conviction proceedings and should be analyzed as such.

See Diaz v. State, 753 N.E.2d 724, 727 (Ind. Ct. App. 2001) (stating that a request for

credit time has historically been treated as a petition for post-conviction relief). Post-

conviction proceedings allow a petitioner to request relief from a conviction or a sentence

under limited circumstances, such as when “the sentence exceeds the maximum

                                              6
authorized by law, or is otherwise erroneous” or when “probation [has been] unlawfully

revoked.” Ind. Post-Conviction Rule 1(1)(a)(3), (5).

       However, a post-conviction petition “is not a substitute for a direct appeal from the

conviction and/or the sentence and all available steps including those under Rule PC 2

should be taken to perfect such an appeal.” P-CR 1(1)(b). Rather, post-conviction relief

is limited to “issues that were not known at the time of the original trial or that were not

available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). An

issue known and available on direct appeal, but not raised, is waived by procedural

default. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). And an issue that was

raised on direct appeal but decided adversely to the petitioner is barred as res judicata.

Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999).

       To obtain relief on issues properly before the post-conviction court, a petitioner

must establish the grounds for relief by a preponderance of the evidence. Wesley v.

State, 788 N.E.2d 1247, 1250 (Ind. 2003). If the petitioner fails to satisfy that burden

before the post-conviction court, on appeal the petitioner faces a rigorous standard of

review and “must convince the court that the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction court.” Id. We

neither reweigh the evidence nor judge the credibility of witnesses, and we examine only

the probative evidence and reasonable inferences supporting the post-conviction court’s

determination. Holmes v. State, 728 N.E.2d 164, 169 (Ind. 2000).



                                             7
                                  II. The Request for Credit Time

          Easley claims that he is entitled to credit time under Indiana Code section 35-50-6-

3.3(b), which provides in relevant part:

          In addition to any credit time that a person earns under subsection (a) or
          section 3 of this chapter, a person may earn credit time if, while confined
          by the department of correction, the person:

          (1) is in credit Class I;

          (2) demonstrates a pattern consistent with rehabilitation; and

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

                                               ...

             (B) A certificate of completion of a substance abuse program approved
                 by the department.

The DOC has the obligation to “establish admissions criteria and other requirements for

programs available for earning credit time under subsection (b).” Ind. Code § 35-50-6-

3.3(c).

          We first observe that by Easley’s own account, he completed the substance abuse

treatment program in 2000 while he was detained in the Shelby County Jail prior to the

sentencing on his original charges. Given that Indiana Code section 35-50-6-3.3(b)

seems only to provide the possibility of credit time if one completes a qualifying program

“while confined by the department,” the statute is wholly inapplicable to Easley. In

addition, Easley presented no evidence before the post-conviction court that the program

he completed was “approved by the department,” and indeed, there was ample evidence

                                                8
presented that the program was not approved by the DOC. Tr. p. 10; Appellant’s App. p.

61, 64, 71-72. Finally, because Easley completed the substance abuse treatment prior to

sentencing, any determination of how much his sentence should have been reduced as a

result of its completion was within the purview of the trial court at the time of sentencing.

See Murphy v. State, 942 N.E.2d 818, 819 (Ind. 2011) (stating that because the trial court

initially determines a defendant’s sentence and the amount of credit time to which a

defendant is entitled at the time of sentencing, it is the trial court, and not the DOC, that

should decide whether a defendant should be granted credit time for completion of any

educational degrees prior to sentencing). Thus, the post-conviction court did not err in

denying Easley credit time pursuant to Indiana Code section 35-50-6-3.3(b).

                             III. Easley’s Remaining Claims

       Each of Easley’s remaining claims relates to the second revocation of his

probation in 2010 which resulted in him being ordered to serve the seven remaining years

of his original sentence in the DOC.       We note that Easley’s appeal of the second

probation revocation was dismissed with prejudice by this Court. Easley v. State, No.

73A04-1012-CR-3 (Ind. Ct. App. Oct. 28, 2011) (dismissed without opinion). Because a

dismissal with prejudice is generally viewed as a dismissal on the merits, the dismissal of

Easley’s appeal was “conclusive of the rights of the parties and is res judicata as to any

questions which might have been litigated.” Ilagan v. McAbee, 634 N.E.2d 827, 829

(Ind. Ct. App. 1994). Thus, each of Easley’s claims collaterally challenging his second

probation revocation is barred under the doctrine of res judicata. Also, those issues that

                                             9
were previously available to Easley but that he now raises for the first time on appeal are

procedurally defaulted. Bunch v. State, 778 N.E.2d at 1289.

       The judgment of the post-conviction court is affirmed.

RILEY, J., and BARNES, J., concur.




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