MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jul 06 2017, 8:09 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
Clayton S. Lindsey                                        Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Clayton S. Lindsey,                                       July 6, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          46A03-1701-CR-44
        v.                                                Appeal from the LaPorte Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas J.
Appellee-Respondent.                                      Alevizos, Judge
                                                          Trial Court Cause No.
                                                          46C01-0909-MR-496



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-44 | July 6, 2017           Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Clayton Lindsey (Lindsey), appeals the post-conviction

      court’s order granting the State’s motion for summary disposition.


[2]   We affirm.


                                                    ISSUE
[3]   Lindsey presents one issue on appeal, which we restate as: Whether the post-

      conviction court erred in granting the State’s motion for summary disposition.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 21, 2009, the State filed an Information, charging Lindsey with

      two Counts of murder, and one Count of burglary, a Class B felony. On July

      18, 2011, Lindsey was sentenced to concurrent sixty-five year sentences for the

      murder convictions, and a consecutive twenty-year sentence for the burglary

      conviction, with ten years suspended to probation.


[5]   In 2013, Lindsey obtained his general education development diploma (GED),

      and completed a literacy basic life skills program. In 2016, Lindsey also

      completed a welding program. On July 11, 2016, Lindsey requested the dorm

      unit team office for a list of all his completed programs and their respective

      earned credits. The dorm unit team office responded by advising Lindsey that

      his earned credit time would be applied closer to his release date. On July 21,

      2016, Lindsey filed a classification appeal with the DOC challenging the

      decision rendered by the dorm unit team office. On July 26, 2016, the DOC

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-44 | July 6, 2017   Page 2 of 7
      denied Lindsey’s application stating, in part, that the DOC “facility only enters

      the information for the time cuts. Central [O]ffice actually process them. The

      facility does not control this process.” (Appellee’s App. Vol. II, p. 38). On

      August 1, 2016, Lindsey filed an offender complaint, reiterating that he had

      earned additional credit time for obtaining a GED and completing two

      vocational programs. On August 2, 2016, the DOC responded by stating that,

      “central office will post when closer to outdate.” (Appellee’s Vol. II, p. 39).


[6]   On September 14, 2016, Lindsey filed a motion for the award of additional

      credit time with the post-conviction court. On October 12, 2016, the post-

      conviction court denied Lindsey’s motion stating that DOC had not denied

      Lindsey’s request for additional time. In addition, the post-conviction court

      stated that Lindsey had not exhausted all of his administrative remedies with

      the DOC. On October 19, 2016, Lindsey filed another classification appeal

      with the DOC reiterating that he was entitled to the award of additional credit

      time. On October 20, 2016, the DOC responded by stating:

              The application of time credits for program completion is a
              central office function. Central [O]ffice has been consulted on
              this issue and they have advised that said application is arranged
              and applied to offenders based on their earliest projected release
              date. At some point in the future the credits that you have
              earned will be applied to your commitment(s).


              Your classification appeal is hereby denied.


      (Appellee’s App. Vol. II, p. 49).


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[7]   Following the denial of his classification appeal, on October 25, 2016, Lindsey

      filed an appeal with the Central Office. The Central Office did not respond to

      Lindsey’s appeal, and on November 17, 2016, Lindsey filed a motion to show

      compliance with the court order of October 12, 2016. In his motion, Lindsey

      claimed that he had exhausted all administrative remedies with the DOC, and

      the post-conviction court had jurisdiction to determine his appeal. On

      December 2, 2016, the State responded to Lindsey’s motion by filing a motion

      for summary disposition, with an attached declaration sworn by Jennifer

      Farmer (Farmer), DOC’s Director of Sentence Computation and Release Unit.

      In the declaration, Farmer acknowledged Lindsey’s GED award, and

      completion of two other vocational programs. Farmer additionally declared

      that:

              7. []DOC’s Classification Division will conduct a final review of
              Lindsey’s request and then recalculate Lindsey’s earliest possible
              release date (“EPRD”).


              8. []DOC’s Classification Division conducts its final review of
              time cut requests based on the requesting offender’s EPRD.


              9. Based on Lindsey’s EPRD of 2047, his request for time cut
              has not been processed and applied at the time this declaration
              was signed.


              10. As of November 29, 2016 at 3:48 p.m., there are
              approximately 2,802 other requests ahead of Lindsey’s awaiting
              final review by []DOC’s Classification Division.




      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-44 | July 6, 2017   Page 4 of 7
[8]    (Appellee’s App. Vol. II, p. 57). On December 12, 2016, the post-conviction

       court entered findings of fact and conclusions thereon granting the State’s

       motion for summary disposition.


[9]    Lindsey now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Lindsey argues that the trial court erred in granting the State’s motion for

       summary disposition. We initially observe that Lindsey is pro se on appeal. Pro

       se litigants are held to the same standard as trained legal counsel and are

       required to follow the procedural rules. Evans v. State, 809 N.E.2d 338, 344

       (Ind. Ct. App. 2005), trans. denied. It is an appellant’s duty to provide a record

       that reflects the error alleged. Williams v. State, 690 N.E.2d 162, 176 (Ind.

       1987). To the extent the record is inadequate, it results in waiver of the issue.

       Id.


[11]   We review the grant of a motion for summary disposition in post-conviction

       proceedings on appeal in the same way as a civil motion for summary

       judgment. Norris v. State, 896 N.E.2d 1149, 1151nd. 2008). Summary

       disposition, like summary judgment, is a matter for appellate de novo review

       when the determinative issue is a matter of law, not fact. Id. In summary

       judgment proceedings, the moving party 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

       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-44 | July 6, 2017   Page 5 of 7
       presumption of validity, and the party who lost in the trial court 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.


[12]   Lindsey maintains that his earned credit time should be applied immediately to

       his sentence. In response, the State maintains the DOC’s denial of Lindsey’s

       request to the immediate application of additional credit time to his sentence

       was consistent with the DOC’s policies and procedures. The State argues that

       the DOC did not refuse to award Lindsey’s earned credit time; rather, the DOC

       indicated that it would grant him credit time at a later time as specified in its

       policy. In support of its argument, the State directs us to the DOC’s response

       dated October 20, 2016. In that response, the DOC informed Lindsey that

       “Central [O]ffice has been consulted on this issue and they have advised that

       said application is arranged and applied to offenders based on their earliest

       projected release date. At some point in the future the credits that you have

       earned will be applied to your commitment.” (Appellee’s App. Vol. II, p. 49).


[13]   In the summary disposition order, the post-conviction court recognized that

       pursuant to Indiana Code section 11-8-2-5(a)(8), the DOC is responsible for

       developing policies, programs, and services for committed persons, for

       administration of facilities, and for conduct of employees of the department.

       Here, the evidence before the post-conviction court shows that there was no

       genuine issue as to any material fact, and summary disposition was appropriate.

       The record demonstrates that DOC prioritizes credit time requests based on an

       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-44 | July 6, 2017   Page 6 of 7
       offender’s release date. As of November 2016, there were approximately 2,802

       requests ahead of Lindsey, and Lindsey’s earliest release date is 2047. As per

       the DOC policies and procedures, DOC will process and complete Lindsey’s

       request closer to his release date, which is thirty years away. Based on the

       evidence before it, the post-conviction court properly granted the State’s motion

       for summary disposition.


[14]   Lindsey also asserts that the DOC’s failure to award him additional credit time

       forecloses him from being “eligible for additional []DOC programs.”

       (Appellant’s Br. p. 9). In addition, Lindsey claims that if the credit time is not

       awarded now, it will be lost forever. Lindsey did not raise these additional

       arguments in his motion with the post-conviction court. Because Lindsey raises

       these arguments the first time on appeal, he waives them for appellate review.

       See Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)


                                             CONCLUSION
[15]   Based on the foregoing, we conclude that there are no genuine issues of

       material fact with respect to Lindsey’s motion seeking the calculation of his

       credit time, and the post-conviction court correctly granted the State’s motion

       for summary disposition.


[16]   Affirmed.


[17]   Najam, J. and Bradford, J. concur




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