MEMORANDUM DECISION
                                                                    Jul 22 2015, 9:22 am
Pursuant to Ind. Appellate Rule 65(D), this                                   Jul 22 2015, 9:22 am




Memorandum Decision shall not be regarded as
precedent or cited before any 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
John Bochner                                              Gregory F. Zoeller
New Castle, Indiana                                       Attorney General of Indiana

                                                          Kristin Garn
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

John Bochner,                                             July 22, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          41A01-1409-CR-404
        v.                                                Appeal from the Johnson Circuit
                                                          Court;
                                                          The Honorable K. Mark Loyd,
State of Indiana,                                         Judge;
Appellee-Plaintiff.                                       41C01-9806-CF-96




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1409-CR-404 | July 22, 2015                  Page 1 of 5
[1]   John Bochner appeals the denial of his request for restoration of credit time.

      We affirm.


                                     Facts and Procedural History
[2]   In 1998, Bochner began serving the first of his two consecutive twenty-year

      sentences. On December 30, 2003, Bochner was found guilty of two prison

      disciplinary offenses and lost 120 days of earned credit time. On December 13,

      2004, Bochner was found guilty of another prison disciplinary offense and lost

      thirty days of earned credit time. On January 19, 2007, the Department of

      Correction granted Bochner’s appeal of the deprivation of his earned credit time

      and restored forty-six days. On December 22, 2007, Bochner reached the end

      of his first sentence.


[3]   On June 28, 2013, Bochner filed a Verified Motion for Restoration of Deprived

      Earned Credit Time seeking 116 1 days of earned credit time restored. On April

      14, 2014, the trial court denied Bochner’s motion, finding he did not appeal the

      deprivation of his earned credit time prior to the end of the sentence during



      1
          In his motion, Bochner stated, regarding the number of days he was requesting restored,

                 Bochner, in making his request for one hundred and sixteen (116) days of ECT [earned
                 credit time] to be restored. [He] calculated the one hundred and eighty (180) day total
                 deprivation times 25% times 2, and the 180 day period times 15% less one (1) day that
                 was previously awarded.
                 The calculations are:
                 180 x .25 = 45 x 2 = 90
                 180 x .15 = 27 - 1 = 26
                                     116 Total
      (Appellant’s App. at 114.)

      Court of Appeals of Indiana | Memorandum Decision 41A01-1409-CR-404 | July 22, 2015                  Page 2 of 5
      which it was earned. On May 14, Bochner filed a motion to correct error,

      which the trial court denied on May 28.


                                       Discussion and Decision
[4]   We first note that Bochner proceeds pro se. It is well settled that pro se litigants

      are held to the same standard as licensed attorneys, and thus they are required

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

      2004), trans. denied.


[5]   Ind. Code § 35-50-6-5(c) states: “Any part of the credit time of which a person is

      deprived under this section may be restored.” (Emphasis added.) Bochner

      argues “the legal definition [of “may”] . . . may be interpreted as the mandatory

      word ‘shall,’” (Br. of Appellant at 8), and thus Ind. Code § 35-50-6-5(c) should

      be interpreted to require the restoration of his lost credit time.


[6]   Our standard of review for statutory interpretation 2 is well-settled:

               A question of statutory interpretation is a matter of law. In such
               interpretation, the express language of the statute and the rules of
               statutory interpretation apply. We will examine the statute as a whole,
               and avoid excessive reliance on a strict literal meaning or the selective
               reading of words. Where the language of the statute is clear and
               unambiguous, there is nothing to construe. However, where the
               language is susceptible to more than one reasonable interpretation, the
               statute must be construed to give effect to the legislature’s intent. The




      2
        Bochner does not argue the trial court erred when it denied his Motion to Correct Error, and our standard
      of review for appeal of a Motion to Correct Error directs us to consider the underlying order, here the denial
      of Bochner’s motion for restoration of earned credit time. See In re Paternity of H.H., 879 N.E.2d 1175, 1177
      (Ind. Ct. App. 2008) (review of motion to correct error includes review of underlying order).

      Court of Appeals of Indiana | Memorandum Decision 41A01-1409-CR-404 | July 22, 2015                 Page 3 of 5
               legislature is presumed to have intended the language used in the
               statute to be applied logically and not to bring about an absurd or
               unjust result. Thus, we must keep in mind the objective and purpose
               of the law as well as the effect and repercussions of such a
               construction.
      Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. When

      interpreting the language of a statute, “[w]ords and phrases shall be taken in

      their plain, or ordinary and usual, sense.” Ind. Code § 1-1-4-1(1).


[7]   The term “may” in a statute “ordinarily implies a permissive condition and a

      grant of discretion.” Romine v. Gagle, 782 N.E.2d 369, 380 (Ind. Ct. App. 2003),

      trans. denied. Bochner has not offered persuasive argument to justify a departure

      from that usual rule of construction, and we therefore decline his invitation to

      encroach on the discretion of the trial court. 3 See Williams v. City of Indianapolis

      Dept. of Public Works, 558 N.E.2d 884, 887 (Ind. Ct. App. 1990) (absence of an

      argument to justify departure from usual rule of construction precludes

      appellate court from interpreting “may” in a way other than to imply

      discretion), trans. denied. 4 Accordingly, we affirm the decision of the trial court.




      3
        The denial of Bochner’s request is consistent with Department of Correction policy, which states in relevant
      part: “The credit time being requested must be credit time that was deprived while serving the current
      sentence. Credit time deprived while serving a previous sentence . . . can not [sic] be restored.” (Appellant’s
      App. at 153.) Bochner alleges he was denied credit time in 2003 and 2004, and he filed his request for
      restoration of credit time in 2013. Bochner completed the first of his two twenty-year sentences in 2007.
      Thus, his 2013 request for restoration of credit time concerned credit time allegedly deprived while he was
      serving the previous sentence.
      4
        Bochner asserts the Department of Correction policy violates the constitutional prohibition against ex post
      facto laws. As Bochner did not present this argument before the trial court, he may not assert it for the first
      time on appeal. See Frances Slocum Bank & Trust Co. v. Estate of Martin, 666 N.E.2d 411, 413 (Ind. Ct. App.
      1996) (“A party who raises an issue on appeal that was not raised in the trial court waives that issue.”), trans.
      denied.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1409-CR-404 | July 22, 2015                   Page 4 of 5
[8]   Affirmed.


      Robb, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 41A01-1409-CR-404 | July 22, 2015   Page 5 of 5
