MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Apr 17 2018, 9:10 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                            Curtis T. Hill, Jr.
Huntington, Indiana                                      Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brad S. Brown,                                           April 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         90A04-1711-CR-2670
        v.                                               Appeal from the Wells Circuit
                                                         Court
State of Indiana,                                        The Honorable Kenton W.
Appellee-Plaintiff.                                      Kiracofe, Judge
                                                         Trial Court Cause No.
                                                         90C01-1708-PC-5
                                                         90C01-1205-FD-34



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018                Page 1 of 6
                                         Statement of the Case
[1]   Brad S. Brown appeals the post-conviction court’s denial of his petition for post-

      conviction relief. He presents a single dispositive issue for our review, namely,

      whether the post-conviction court erred when it summarily dismissed his

      petition. We reverse and remand for further proceedings.


                                   Facts and Procedural History
[2]   In April 2013, a jury found Brown guilty of two counts of robbery, one as a

      Class B felony and the other as a Class C felony, and domestic battery, as a

      Class D felony. The trial court entered judgment of conviction accordingly and

      sentenced Brown to an aggregate term of twelve years in the Department of

      Correction (“DOC”).


[3]   On July 31, 2017, Brown filed a motion for additional credit time based on his

      educational achievements, as well as having “successfully completed the hours

      required for career, technical[,] and vocational education programs in his jobs

      and in career development training.” Appellant’s App. Vol. II at 5. Attached

      to his motion, Brown submitted the affidavit of “D. Walter-Cook”1 who stated

      that Brown had “successfully completed the hours for department of labor

      apprenticeships not offered at his current facility.” Id. at 6. On August 7, the




      1
        The affidavit does not state who Walter-Cook is or whether he is affiliated with the prison where Brown is
      incarcerated.

      Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018             Page 2 of 6
      post-conviction court issued an order stating that Brown’s motion would be

      treated as a petition for post-conviction relief.


[4]   On September 21, the State filed its response to Brown’s post-conviction

      petition and moved for summary disposition. In that response, the State alleged

      that Brown was not entitled to additional credit time in that “Brown’s petition

      request[ed] credit for an office management program that is not offered at his

      current facility, meaning that this program is not approved by the Department

      of Correction for inmates at his location.” Id. at 15. And the State submitted

      the affidavit of Jennifer Farmer, the Program Director of the DOC’s Sentence

      Computation/Release Unit. Farmer’s affidavit states in relevant part as

      follows:


              5. The following is a list of programs for which Brad Brown has
              already received credit time on his current sentence, as well as a
              statement of time applied:

                       a. Substance Abuse 2, 3.1, 3.2, and 3.3, 180 days
                       applied.

                       b. PEN Career Development Training, 90 days
                       applied.

              6. In total Brad Brown has received 270 days of credit time for
              the successful completion of classes offered at his facility. This
              represents all of the time for which Brad Brown was eligible to
              receive credit, and has submitted for approval.

              7. Any High School Diploma and Associates Degree possessed
              by Brad Brown was not earned while he was incarcerated with


      Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018   Page 3 of 6
              the IDOC, making him ineligible for credit time for these
              attainments.

              8. A limited number of vocational courses are offered at [his
              facility] and other low security facilities due to the relatively short
              period of incarceration for these offenders, and due to the
              availability of work release programs.

              9. The office management class that Brad Brown mentions in his
              petition is not offered, and is therefore not approved by IDOC at
              his present facility. . . . This means that Brad Brown is ineligible
              to receive credit time for the office management class despite any
              alleged work or training he may have completed in connection
              with his past or present employment as kitchen trustee, sanitation
              worker, re-entry computer clerk, and tutor/lay advocate on the
              Disciplinary Hearing Board.

              10. Furthermore, Brad Brown was either not enrolled in, or had
              not completed, any other vocational class or apprenticeships that
              would make him eligible to receive credit time for any alleged
              work or training he may have completed in connection with his
              past or present employment as kitchen trustee, sanitation worker,
              re-entry computer clerk, and tutor/lay advocate on the
              Disciplinary Hearing Board.

              11. Mere employment while incarcerated is not approved by
              IDOC as a cut-time program.


      Id. at 18-19.


[5]   On October 6, Brown filed a motion for a hearing on his post-conviction

      petition in part to “present additional evidence.” Id. at 25. On October 13, the

      post-conviction court denied Brown’s motion for a hearing, granted the State’s



      Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018   Page 4 of 6
      motion for summary disposition, and denied Brown’s petition for post-

      conviction relief. This appeal ensued.


                                     Discussion and Decision
[6]   Brown appeals the post-conviction court’s summary disposition of his petition

      for post-conviction relief. As our supreme court has explained:


              An appellate court reviews the grant of a motion for summary
              disposition in post-conviction proceedings on appeal in the same
              way as a motion for summary judgment. Thus summary
              disposition, like summary judgment, is a matter for appellate de
              novo determination when the determinative issue is a matter of
              law, not fact.


      Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted). In

      summary judgment proceedings, the moving party (here, the State) is the party

      that bears the burden to demonstrate that there is no genuine issue of material

      fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15

      N.E.3d 1000, 1003-04 (Ind. 2014). However, a trial court’s grant of summary

      judgment is clothed with a presumption of validity, and the party who lost in

      the trial court (here, Brown) has the burden of demonstrating that the grant of

      summary judgment was erroneous. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

      1167, 1173 (Ind. Ct. App. 2012), trans. denied.


[7]   In his brief on appeal, Brown contends in relevant part that the post-conviction

      court erred when it “granted the State’s motion for summary disposition

      without providing Brown an opportunity to submit additional evidence.”


      Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018   Page 5 of 6
      Appellant’s Br. at 8. Indeed, the post-conviction court granted the State’s

      motion and entered judgment before the time for Brown’s response to the

      State’s motion had expired.2 Again, the State filed its motion for summary

      disposition on September 21, 2017, and, under Trial Rule 56(C), Brown had

      thirty days after service of that motion to serve a response and any opposing

      affidavits. See State v. Gonzalez-Vazquez, 984 N.E.2d 704, 709 (Ind. Ct. App.

      2013) (“declin[ing] the State’s invitation to hold that it is relieved of the time

      constraints of Trial Rule 56”), trans. denied. Thus, Brown’s response was due on

      or about October 23. We agree with Brown that the post-conviction court erred

      when it entered its Order Granting Summary Disposition on October 13.

      Accordingly, we reverse and remand for further proceedings not inconsistent

      with this opinion.


[8]   Reversed and remanded for further proceedings.


      Robb, J., and Altice, J., concur.




      2
        Inexplicably, the State claims that Brown was the moving party, “and therefore the State, and not [Brown],
      had 30 days in which to respond. See Ind. Trial Rule 56(C).” Appellee’s Br. at 13. The record is clear that
      the State moved for summary disposition and was, therefore, the moving party.

      Court of Appeals of Indiana | Memorandum Decision 90A04-1711-CR-2670 | April 17, 2018            Page 6 of 6
