MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Feb 29 2016, 9:55 am
this 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
Robert J. Hicks                                          Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Hicks,                                         February 29, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1507-CR-995
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent.                                     Judge

                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0611-FC-212



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016   Page 1 of 5
                                         Statement of the Case
[1]   Robert J. Hicks appeals the post-conviction court’s summary dismissal of his

      petition for educational credit.1 Hicks raises a single issue for our review,

      namely, whether the post-conviction court erred when it summarily dismissed

      his petition. We affirm.


                                   Facts and Procedural History
[2]   Following Hicks’ guilty plea to robbery, as a Class C felony, and to being a

      habitual offender, the trial court sentenced Hicks to twenty years in the

      Department of Correction (“DOC”). In September of 2011, Hicks filed a

      petition for earned credit time in the post-conviction court. Pursuant to a

      motion by the State, the post-conviction court summarily denied Hicks’

      petition.


[3]   In February of 2015, Hicks completed an apprenticeship to be an animal

      trainer. The DOC awarded Hicks six months of educational credit for the

      completion of his apprenticeship. Hicks filed an internal grievance with the

      DOC on the grounds that he was entitled to one year of educational credit. The

      DOC rejected Hicks’ argument and his ensuing internal appeal.




      1
        “‘Educational credit’ means a reduction in a person’s term of imprisonment or confinement awarded for
      participation in an educational, vocational, rehabilitative, or other program.” Ind. Code § 35-50-6-0.5(3)
      (2015).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016            Page 2 of 5
[4]   Thereafter, Hicks filed a new petition for educational credit in the post-

      conviction court. The State moved for summary dismissal of Hicks’ petition on

      the grounds that the DOC’s internal policies are left to the DOC’s discretion as

      a matter of law, and the DOC’s policies stipulate an award of six months for

      Hicks’ apprenticeship. The post-conviction court granted the State’s motion

      and dismissed Hicks’ petition. This appeal ensued.


                                     Discussion and Decision
[5]   Hicks appeals the post-conviction court’s dismissal of his petition for

      educational credit. “[A]ll manner of claims of sentencing errors (other than

      those that do not require consideration of matters outside the face of the

      sentencing judgment), are addressed via post-conviction relief proceedings.”

      Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008). This includes claims for an

      award of educational credit, even if the petitioner has not “specifically

      designated his claim as a petition for post-conviction relief.” Id. 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) (citations omitted). When appealing the denial of post-conviction

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

      judgment. Id. To prevail on appeal from the denial of post-conviction relief, a

      petitioner must show that the evidence as a whole leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016   Page 3 of 5
[6]   “In order to present a claim properly, however, a petitioner must follow the

      Indiana Rules of Procedure for Post-Conviction Remedies.” Young, 888 N.E.2d

      at 1256-57. “If the petition is not the first for post-conviction relief a petitioner

      has filed, that petitioner must follow the procedure outlined in P-C.R. 1(12) for

      filing successive petitions.” Id. at 1257. Post-Conviction Rule 1(12) requires a

      petitioner who seeks to file a successive petition for post-conviction relief to first

      obtain permission from this court; the petitioner’s failure to obtain this

      permission deprives the post-conviction court of jurisdiction over the successive

      petition. Beech v. State, 702 N.E.2d 1132, 1137 (Ind. Ct. App. 1998). The

      burden is on the petitioner to demonstrate that “his case is not an unapproved

      successive petition for post-conviction relief.” Young, 888 N.E.2d at 1257.


[7]   We must agree with the State that Hicks has not demonstrated that his petition

      “is not an unapproved successive petition for post-conviction relief.” Id.

      Indeed, in 2011, Hicks filed a petition for post-conviction relief in which he

      sought an award of credit time. The post-conviction court summarily denied

      Hicks’ petition that same year. Nonetheless, without obtaining prior approval

      from this court, in April of 2015 Hicks filed the instant petition for post-

      conviction relief in which he requested an award of educational credit.2 As

      Hicks does not demonstrate that the instant petition was an “not an unapproved




      2
        In his Reply Brief, Hicks asserts that the April 2015 petition is not a successive petition for post-conviction
      relief because the credit time sought was based on different behavior than in his 2011 petition. But the basis
      for a successive petition for post-conviction relief is not a relevant concern with respect to whether the
      petition is in fact a successive petition. Ind. Post-Conviction Rule 1(12).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016                Page 4 of 5
      successive petition for post-conviction relief,” we must affirm the post-

      conviction court’s summary dismissal of his petition. And, because we agree

      with the State that the post-conviction court lacked jurisdiction to consider

      Hicks’ petition in the first instance, we do not consider the merits of his

      petition.


[8]   Affirmed.


      Riley, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-995| February 29, 2016   Page 5 of 5
