MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Jul 28 2017, 9:39 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
David Drummond                                            Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Drummond,                                           July 28, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A02-1606-PC-1278
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Stanley E. Kroh,
Appellee-Respondent.                                      Magistrate
                                                          The Honorable Sheila Carlisle,
                                                          Judge
                                                          Trial Court Cause No.
                                                          49G03-0108-CF-161376
                                                          49G03-1606-PC-21055



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017         Page 1 of 7
[1]   David Drummond appeals the summary denial of his successive petition for

      post-conviction relief. Drummond raises four issues which we consolidate and

      restate as whether the post-conviction court erred in denying his petition. We

      reverse and remand for further proceedings.


                                           Facts and Procedural History

[2]   In 2002, Drummond was found guilty of child molesting as a class A felony and

      sentenced to fifty years. On June 1, 2016, with authorization from this Court,

      Drummond filed a successive petition for post-conviction relief alleging that he

      had not been awarded credit time for his completion of two programs, namely,

      Life Skills Stress Management in March 2004 and Life Skills Anger

      Management in October 2004. The post-conviction court issued an order dated

      June 9, 2016, summarily denying Drummond’s petition, finding related solely

      to a long-standing dispute with the Indiana Department of Correction (the

      “DOC”) regarding additional earned credit time, and that the court had

      previously denied his claims for the same claimed credit time in orders dated

      October 24, 2014, and February 9, 2016.1 Drummond initiated an appeal, and

      on September 28 and October 27, 2016, this Court issued orders directing the

      Marion Circuit and Superior Courts Clerk to assemble the Clerk’s Record, and

      file a Notice of Completion of Clerk’s Record, which Notice was filed in

      November 2016.




      1
          The parties do not cite to the record for the October 24, 2014 and February 9, 2016 orders.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017              Page 2 of 7
                                                   Discussion

[3]   Before discussing Drummond’s allegations of error, we observe that he is

      proceeding pro se. Such litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

      We also note the general standard under which we review a post-conviction

      court’s denial of a petition for post-conviction relief. The petitioner in a post-

      conviction proceeding bears the burden of establishing grounds for relief by a

      preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

      Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

      conviction relief, the petitioner stands in the position of one appealing from a

      negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

      the judgment unless the evidence as a whole unerringly and unmistakably leads

      to a conclusion opposite that reached by the post-conviction court. Id.


[4]   Drummond argues that the post-conviction court abused its discretion in

      denying his successive petition and that he demonstrated that he is entitled to a

      total of one year of credit time. He further argues that the post-conviction court

      denied him his right to represent himself when it failed to have him present for

      a status/evidentiary hearing and that we should find the Marion Circuit and

      Superior Courts Clerk in contempt for failing to timely file a Notice of

      Completion of Clerk’s Record.


[5]   With respect to Drummond’s contempt claim, we note that the Clerk has

      already filed the Notice of Completion of Clerk’s Record, and accordingly the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017   Page 3 of 7
      relief sought by Drummond has already been granted and the issue is moot. See

      In re F.S., 53 N.E.3d 582, 590 (Ind. Ct. App. 2016) (observing an issue is

      deemed moot when no effective relief can be rendered to the parties before the

      court). As for Drummond’s claim that he was not permitted to be present at a

      hearing to represent himself, the chronological case summary does not show

      that the post-conviction court held a hearing on his successive petition for post-

      conviction relief which he could have attended.


[6]   Turning to Drummond’s argument that the court erred in denying his

      successive petition for post-conviction relief, 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. Norris v. State, 896

      N.E.2d 1149, 1151 (Ind. 2008). 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. Id. Post-Conviction Rule

      1(4)(g) provides:

              The court may grant a motion by either party for summary
              disposition of the petition when it appears from the pleadings,
              depositions, answers to interrogatories, admissions, stipulations
              of fact, and any affidavits submitted, that there is no genuine
              issue of material fact and the moving party is entitled to
              judgment as a matter of law. The court may ask for oral
              argument on the legal issue raised. If an issue of material fact is
              raised, then the court shall hold an evidentiary hearing as soon as
              reasonably possible.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017   Page 4 of 7
[7]   A post-conviction court is permitted to summarily deny a petition for post-

      conviction relief only if the pleadings conclusively show the petitioner is

      entitled to no relief. Gann v. State, 550 N.E.2d 803, 804 (Ind. Ct. App. 1990).

      The necessity of an evidentiary hearing is avoided when the pleadings show

      only issues of law. Id. The need for a hearing is not avoided, however, when a

      determination of the issues hinges, in whole or in part, upon facts not resolved.

      Id. This is true even though the petitioner has only a remote chance of

      establishing his claim. Id. at 804-805.


[8]   Ind. Code § 35-50-6-3.3 provides in part that a person may earn educational

      credit if, while confined by the DOC, the person:

              (1) is in credit Class I, Class A, or Class B;

              (2) demonstrates a pattern consistent with rehabilitation; and

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

                       (A) A certificate of completion of a career and technical or
                       vocational education program approved by the department
                       of correction.

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

                       (C) A certificate of completion of a literacy and basic life
                       skills program approved by the department of correction.

                       (D) A certificate of completion of a reformative program
                       approved by the department of correction.


      Ind. Code § 35-50-6-3.3(b).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017   Page 5 of 7
[9]    In this case, the State notes that Drummond’s petition and supporting affidavit

       were before the post-conviction court, and his affidavit states in part that he

       completed the Life Skills Program Stress Management on March 3, 2004, and

       the Life Skills Program Anger Management on October 19, 2004. His

       instructor for the programs indicated he would receive six months of credit time

       upon the completion of each of the programs for a total of one year credit time.

       The State points out that in 2007 Drummond received a letter indicating the

       programs were not eligible for credit time, but that Adult Offender

       Classification policy 01-04-101 indicates he was entitled to credit time.


[10]   The State acknowledges that Drummond raised a genuine issue of material fact,

       making a summary denial inappropriate, and states that further proceedings are

       required in order to determine whether Drummond is entitled to relief. It states

       that this case should be remanded for further proceedings in which the State can

       respond to Drummond’s petition and move for summary disposition if

       appropriate.2


[11]   Based upon the record and the State’s concession that summary denial was

       inappropriate, we conclude that the pleadings do not conclusively show that

       Drummond is entitled to no relief. Accordingly, we reverse and remand for




       2
         The State also indicates “[i]t is impermissible for the trial court to consider evidence outside the record,
       including the October 24, 2014 and February 9, 2016 orders, which the trial court had not taken judicial
       notice of” and that it “does not believe that the February 9, 2016 Findings of Fact and Conclusions of Law is
       regarding the same earned credit time that Drummond now argues he is entitled to.” Appellee’s Brief at 11,
       11 n.6.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017               Page 6 of 7
       further proceedings. See Gann, 550 N.E.2d at 805 (noting that where the facts

       pleaded raise an issue of merit, summary disposition is erroneous, agreeing with

       the petitioner that the pleadings raised a genuine question of material fact, and

       remanding for further proceedings).


                                                    Conclusion

[12]   For the foregoing reasons, we reverse and remand for further proceedings

       consistent with this opinion.


[13]   Reversed and remanded.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-PC-1278 | July 28, 2017   Page 7 of 7
