      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  FILED
      court except for the purpose of establishing                          Nov 15 2017, 8:30 am
      the defense of res judicata, collateral
                                                                                 CLERK
      estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court



      APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
      Mark S. Wright                                          Curtis T. Hill, Jr.
      Michigan City, Indiana                                  Attorney General of Indiana
                                                              James D. Boyer
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Mark S. Wright,                                         November 15, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              46A03-1701-CR-230
              v.                                              Appeal from the LaPorte Superior
                                                              Court
      State of Indiana,                                       The Honorable Greta S. Friedman,
      Appellee-Plaintiff.                                     Special Judge
                                                              Trial Court Cause No.
                                                              46D01-9806-CF-94



      Mathias, Judge.

[1]   Mark S. Wright (“Wright”) appeals the post-conviction court’s denial of his

      motion for additional earned credit time. Because the post-conviction court


      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017        Page 1 of 6
      denied Wright’s motion for additional credit time without determining whether

      Wright had exhausted his administrative remedies, we reverse and remand with

      instructions.


                                 Facts and Procedural History
[2]   Wright has been incarcerated in the Department of Correction (“DOC”) since

      1999. During his time in prison, Wright has taken advantage of numerous

      programs and courses offered, including earning educational credit time by

      obtaining a bachelor’s degree from Ball State University in 2009. Recently,

      Wright completed the following programs for which he asserts he did not

      receive additional earned credit time: (1) Aramark In2Work Kitchen Basics

      101, (2) Aramark In2Work Retail Basics 101, (3) ServSafe Food Protection

      Manager Certification Program, (4) Thinking for a Change PLUS Program,

      and (5) the Anger/Stress PLUS Program. Appellant’s App. pp. 23–28.


[3]   On May 6, 2016, Wright filed a motion for earned credit time for completion of

      these programs with the post-conviction court. The post-conviction court

      denied Wright’s motion on December 15, 2016, stating in relevant part:


              [Wright] has provided a plethora of documents in support of his
              Petition, but the documents do not answer the critical
              questions[:]

              1. Did he receive a certificate of completion for a program set
                 forth in IC 35-50-6-3.3 (b) (3) (A) through (D)?

              2. If he did, has he already received credit for that program?



      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017   Page 2 of 6
               The answers to these questions can only be provided by proper
               documentation from the Department of Correction, and the
               documentation heretofore provided does not support the
               Petition. [Wright] may refile with appropriate documents if he
               chooses.


      Id. at 11.


[4]   Based on the post-conviction court’s response, Wright filed a motion to correct

      error1 on January 4, 2017. As part of his motion to correct error, Wright

      attached documentation that he believed satisfied the post-conviction court’s

      requests. On January 11, the post-conviction court denied Wright’s motion.

      Wright now appeals


                                        Discussion and Decision
[5]   Wright argues that the post-conviction court erred by denying his petition for

      earned credit time not previously awarded by the DOC. Specifically, he

      contends that the post-conviction court had subject matter jurisdiction to hear

      his petition, 2 and that the post-conviction court erred when it denied his motion

      for additional earned credit time and his subsequent motion to correct error.




      1
        Although Wright labeled this document as a motion to reconsider, and despite their similarity, “a motion
      requesting the court to revisit its final judgment must be considered a motion to correct error.” Hubbard v.
      Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998).
      2
        Wright relies on our decision in Stevens v. State, 895 N.E.2d 418 (Ind. Ct. App. 2008), to support his claim
      that the post-conviction court here had proper jurisdiction over his case. Wright appears to be conflating
      jurisdiction with the exhaustion of administrative remedies. We note that the exhaustion of administrative
      remedies is a question of procedural error, and not subject matter jurisdiction. Alkhalidi v. Indiana Dep’t. of
      Correction, 42 N.E.3d 562, 565 (Ind. Ct. App. 2015).

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017               Page 3 of 6
      The State counters that Wright’s appeal should be dismissed because he has

      failed to exhaust his administrative remedies.3 In the alternative, the State

      contends that Wright failed to provide proper documentation to the post-

      conviction court to support his claim.


[6]   Generally, the trial court determines the amount of initial credit time a

      defendant is entitled to at sentencing, and thereafter the credit due is

      determined by the DOC. Ellis v. State, 58 N.E.3d 938, 941 (Ind. Ct. App. 2016),

      trans. denied. “The DOC is required to implement a departmental grievance

      procedure in which a committed person may submit grievances arising out of

      administrative acts that affect that person, including claims that the DOC

      wrongfully denied education credit time.” Id. (internal citations omitted).

      “When educational credit time is denied, a person must exhaust his

      administrative remedies within the DOC before appealing to a court because

      determinations altering credit time are the responsibility of the DOC.” Stevens v.

      State, 895 N.E.2d 418, 419 (Ind. Ct. App. 2008). Wright bears the burden to

      show what the relevant DOC procedures are, and that he has exhausted

      them. Burks-Bey v. State, 903 N.E.2d 1041, 1043–44 (Ind. Ct. App. 2009).




      3
        The State also argues “that Wright’s appeal should be dismissed because his motion in this case is an
      unapproved successive petition for post-conviction relief.” Appellee’s Br. at 8. However, on June 23, 2017,
      this court’s motions panel dismissed a motion by the State on the same argument. It is well established that
      we may reconsider a ruling of our motions panel, but we decline to do so here. State v. Sagalovsky, 836 N.E.2d
      260, 264 (Ind. Ct. App. 2005), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017           Page 4 of 6
[7]   Here, the post-conviction court did not deny Wright’s petition for earned credit

      time based on a finding that Wright failed to show he had exhausted his

      administrative remedies with the DOC. Instead, the post-conviction court

      denied Wright’s motion because the petition had failed to answer two critical

      questions: (1) whether Wright received the certificates for a program in

      accordance with Indiana Code section 35-50-6-3.3, and (2) if he did, whether

      Wright had already received credit for those programs. Appellant’s App. p. 11.

      The post-conviction court then explained that “[t]he answers to these questions

      can only be provided by proper documentation from the Department of

      Correction, and the documentation heretofore provided does not support the

      petition. [Wright] may refile with appropriate documents if he chooses.” Id.

      After Wright attached the documents4 the post-conviction court had requested

      as part of his motion to correct error, the trial court denied it without stating

      that Wright had failed to exhaust his administrative remedies.


[8]   We find that the post-conviction court erred when it denied Wright’s initial

      petition for credit time and his subsequent motion to correct error without first

      considering whether he had exhausted his administrative remedies. See Ellis, 58

      N.E.3d at 941 (reversing post-conviction court’s denial of Ellis’s petition for

      credit time where the court denied Ellis’s motion without first considering




      4
        Wright attached an “Offender Information System” print-out notarized by DOC staff which shows the
      programs he has received credit for and those he has not. The document shows that Wright has not been
      given credit for the five programs at issue in this appeal. Appellant’s App. pp. 34–35. Wright also attached
      five documents of the actual completed programs for which he is seeking additional earned credit time for. Id.
      at 23–28.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017           Page 5 of 6
       whether Ellis had exhausted his administrative remedies), trans. denied; Burks-

       Bey, 903 N.E.2d at 1043–44 (reversing post-conviction court’s dismissal or

       Burks-Bey’s motion for additional credit time because the court failed to

       determine whether Burks-Bey had exhausted his administrative remedies).

       Therefore, we reverse the post-conviction court’s denial of Wright’s petition for

       earned credit time and remand to allow the DOC to respond to Wright’s

       claims, and for the post-conviction court to determine whether Wright has

       exhausted his administrative remedies.


[9]    If Wright establishes that he has exhausted his administrative remedies, then

       the post-conviction court should reconsider the merits of his motion for

       additional credit time. If Wright fails to establish that he has exhausted his

       administrative remedies, then the post-conviction court may dismiss the

       petition without prejudice.


[10]   Reversed and remanded.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-230 | November 15, 2017   Page 6 of 6
