MEMORANDUM DECISION                                                FILED
                                                              Aug 16 2016, 9:55 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
regarded as precedent or cited before any                           and Tax Court

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
Jeremiah Beverly                                         Gregory F. Zoeller
                                                         Attorney General of Indiana
                                                         Frances Hale Barrow
                                                         Kyle Martin Hunter
                                                         Deputy Attorney Generals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremiah Beverly,                                        August 16, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A04-1509-PC-1506
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Respondent.                                     Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1501-PC-1403



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 1 of 14
                                       Statement of the Case
[1]   Jeremiah Beverly (“Beverly”) appeals the post-conviction court’s denial of his

      petition for post-conviction relief in which he requested educational credit for

      his completion of a bachelor’s degree. The post-conviction court denied the

      petition on the basis that Beverly had not exhausted his administrative remedies

      for challenging the denial of his educational credit with the Indiana Department

      of Correction (“the DOC”). Because we also find that Beverly did not exhaust

      his administrative remedies, we conclude that we do not have subject matter

      jurisdiction over Beverly’s case and must dismiss his appeal.


[2]   We dismiss.


                                                     Issue

              Whether we have subject matter jurisdiction to review the post-
              conviction court’s denial of Beverly’s petition for post-conviction
              relief.


                                                     Facts
[3]   On March 6, 2003, Beverly was sentenced to forty (40) years with five (5) years

      suspended for Class A felony voluntary manslaughter and five (5) years for

      Class C felony carrying a handgun without a license, with the sentences to be

      served concurrently.


[4]   In May 2008, while incarcerated, Beverly completed the coursework

      requirements to earn a bachelor of general studies degree (“Bachelor’s Degree”)

      from Ball State University (“Ball State”). On July 14, 2008, he submitted an
      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 2 of 14
      application to graduate from the university at the end of the Fall 2008 semester.

      However, on August 29, 2008, he received a Class A conduct report from the

      DOC for refusing a work assignment on five occasions between July 17, 2008

      and July 28, 2008. As a result of this report, Beverly was placed in segregation

      at the Indiana State Prison (“ISP”) and withdrew his application for

      graduation.


[5]   On May 27, 2009, Beverly again applied to Ball State for graduation. He then

      graduated on June 19, 2009 and received his Bachelor’s Degree. On August 11,

      2009, the Dean of Ball State’s School of Extended Education mailed a letter to

      the DOC certifying that Beverly had “completed all of the requirements” for his

      Bachelor’s Degree on June 19, 2009. (Appellant’s App. 20). Two days later,

      the DOC Supervisor of Education at Beverly’s prison completed a form

      verifying that Beverly had completed his degree and then sent it to the Offender

      Placement section of the Classification Division of the DOC. However, on

      August 26, 2009, the DOC Supervisor of Offender Placement and

      Classification, Randall Short (“Classification Supervisor”), issued a finding that

      Beverly was not eligible for any educational credit for completing the degree

      because he had received a Class A conduct report during the year prior to

      completing his degree.1




      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.
      Pursuant to the DOC’s policies, which Beverly has partially included in his Appellant’s Appendix, an

      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016         Page 3 of 14
[6]   Sometime between the end of August 2009 and October 2009, Beverly

      transferred to the ISP.2 The Supervisor of Education there submitted a second

      form verifying that Beverly had completed his Bachelor’s Degree. However,

      the Classification Supervisor again found that Beverly was ineligible to receive

      any educational credit as a result of his conduct in the year prior to earning his

      degree.


[7]   On November 1, 2010, the DOC’s Director of Education, John Nally

      (“Director of Education”), sent a letter to Beverly stating that Beverly’s “recent

      letter to the Commissioner ha[d] been forwarded to [his] office.”3 (Appellant’s

      App. 10). The Director of Education then informed Beverly that: “I have

      confirmed with Ball State University that you officially completed your degree

      on June 19, 2009. I had them check it twice, and that is the official date.”

      (Appellant’s App. 10).4 In addition, the Director of Education noted that he

      had reviewed Beverly’s 2008 and 2009 violations, as well as a later violation in




      offender must have “one (1) year clear of any Class A conduct reports at the time of program completion” in
      order to qualify for educational credit. (Appellee’s App. 20).
      2
          It is apparent that Beverly had transferred from the ISP after his 2008 placement in segregation there.
      3
       Beverly did not include a copy of the letter he sent to the Commissioner, or any of his other letters, in his
      Appendix. Accordingly, we do not know when he sent this letter or what its contents were.
      4
       Beverly failed to number the pages in his Appellant’s Appendix in violation of Indiana Appellate Rule
      51(C). All reference to the Appellant’s Appendix will begin pagination with page one being the Notice of
      Completion of the Clerk’s Record and proceeding consecutively from there. Further, we will distinguish
      between the Appellant’s Appendix and the Appellee’s Appendix by referring to them as “Appellant’s App.”
      and “Appellee’s App.,” respectively.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016               Page 4 of 14
      2010. Based on these violations, the Director reaffirmed that he could not

      approve Beverly’s degree for purposes of educational credit.


[8]   Four months later, on March 10, 2011, Beverly submitted a “Request for

      Interview” form to the Site Manager of the Indiana State Prison, Deborah J.

      Cutler (“ISP Site Manager”). In this request form, Beverly asked the ISP Site

      Manager if the date he had completed his Bachelor’s Degree, for the purposes

      of receiving educational credit, was the date that he had completed his

      coursework requirements for the degree. She replied that the relevant date was

      the date Beverly had “actually graduated” from the program, not the date of his

      last class. (Appellant’s App. 9).


[9]   On April 19, 2011, the Director of the Indiana Department of Administration

      Ombudsman Bureau (“Ombudsman Bureau”) wrote Beverly a letter confirming

      that the Ombudsman Bureau was “in receipt of [his] recent complaint regarding

      credit time for [his] Bachelor’s Degree.”5 (Appellant’s App. 11). The Director

      told Beverly that she had contacted the appropriate personnel concerning his

      complaint and had determined that Beverly was not eligible for educational

      credit due to the conduct report he had received prior to graduating. She

      further wrote that the Bureau had closed the complaint and that Beverly should

      “[f]eel free to file additional complaints with the Bureau should [he] suspect a




      5
        In the letter, the Director noted that the Ombudsman Bureau was established to “investigate and resolve
      complaints that [the DOC] violated a law, rule, or its own policy, or that it endangered the health or safety of
      any person.” (Appellant’s App. 11). Beverly’s complaint is not a part of the record, so we do not know the
      date that Beverly filed the complaint or its contents.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016              Page 5 of 14
       break in DOC policy or procedure.” (Appellant’s App. 11). However, she

       requested that he “please use the facility level process available to [him] before

       submitting complaints with the Bureau.” (Appellant’s App. 11).


[10]   On November 13, 2014, Beverly filed a classification appeal arguing that he

       should have been allowed to have copies of all of his completed program

       certificates or the verification forms for his completed programs. He wrote that

       the reason for his appeal was that he had not received all of his educational

       credit and needed a “stamped list of completed programs that [he had not]

       received time cuts for.” (Appellant’s App. 12). His appeal was denied based on

       the reasoning that he was not allowed to possess copies of any certificates that

       he had earned.


[11]   On January 15, 2015, Beverly filed a pro se petition for post-conviction relief

       arguing that he should have received educational credit for his Bachelor’s

       Degree because he had “completed” the degree when he finished the credit

       hours required for the degree rather than when he graduated. (Appellee’s App.

       5). Because he had completed those credit hours in May 2008, prior to

       receiving his Class A conduct report, he argued that he had not received a Class

       A conduct report within the year prior to earning his degree. As a result, he

       claimed that he should have been awarded educational credit.


[12]   On February 18, 2015, while his petition for post-conviction relief was pending,

       Beverly filed a formal grievance with the DOC Offender Grievance Program.

       As in his petition, he argued that he had completed his degree in May 2008,


       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 6 of 14
       before his Class A conduct report and, therefore, should have received credit for

       the degree.


[13]   On March 5, 2015, the State filed a motion to dismiss Beverly’s petition for

       post-conviction relief or, in the alternative, for summary disposition of the

       petition. The post-conviction court held a hearing on the State’s motion on

       April 15, 2015, and denied the motion at the end of the hearing. On June 24,

       2015, the post-conviction court then held an evidentiary hearing on Beverly’s

       petition, which it denied on September 2, 2015. As a basis for its denial of the

       petition, the post-conviction court reasoned that Beverly had not exhausted his

       administrative remedies prior to filing his petition because Beverly had not

       followed the procedures specified in the DOC’s “Offender Grievance Process.”

       (Appellant’s App. 6). Alternatively, the post-conviction court reviewed the

       merits of Beverly’s claim and determined that Beverly had not “completed his

       degree” until he had officially graduated—which occurred after he received his

       Class A conduct report. Beverly now appeals.


                                                     Decision
[14]   On appeal, Beverly argues that the post-conviction court erred in determining

       that he had not exhausted his administrative remedies prior to filing his petition

       for post-conviction relief.6 Specifically, he asserts that he was required to




       6
         Beverly also argues that the DOC and the post-conviction court erred in determining that he had not
       completed his degree until he officially graduated from his program. However, because we find the issue of
       jurisdiction dispositive, we need not address Beverly’s remaining argument.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016          Page 7 of 14
       exhaust his administrative remedies under the “Classification Decision Appeals

       Process,” not the “Offender Grievance Process” that the post-conviction court

       considered. (Appellant’s App. 6, 7). He also asserts that his attempts to contact

       the Commissioner, the ISP Site Manager, and the Ombudsman Bureau were

       sufficient to exhaust his administrative remedies. Because he argues that he did

       exhaust his administrative remedies, he further claims that he was entitled to

       educational credit for his degree.


[15]   Preliminarily, we note that “[t]he petitioner in a post-conviction proceeding

       bears the burden of establishing grounds for relief by a preponderance of the

       evidence.” Hollowel v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (quoting Fisher

       v. State, 810 N.E.2d 674, 679 (Ind. 2004)). When appealing from the denial of

       post-conviction relief, the petitioner stands in the position of one appealing

       from a negative judgment. Id. at 269. 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. Id.


[16]   Beverly disputes the post-conviction court’s conclusion that he did not exhaust

       his administrative remedies to challenge the DOC’s denial of his educational

       credit. Pursuant to INDIANA CODE § 35-50-6-3.3, a person earns education

       credit if the person:


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

               (2) has demonstrated a pattern consistent with
                   rehabilitation; and
       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 8 of 14
            (3) successfully completes requirements to obtain one (1)
                of the following: . . .

                         (D) A bachelor degree from an approved
                            postsecondary educational institution (as
                            defined under [I.C. §] 21-7-13-6(a)) earned
                            during the person’s incarceration.


The legislative intent behind the educational credit statute is to enhance

rehabilitation by providing offenders with the incentive to further their

education while incarcerated. Members v. State, 851 N.E.2d 979, 982 (Ind. Ct.

App. 2006). While the trial court determines the initial credit time when an

offender is sentenced, modification to that credit time—which includes

modification because of educational credit—is the responsibility of the DOC.

Id. Stated differently, “the trial court imposes the sentence, and the DOC

administers the sentence.” Id. at 983. As a consequence, the DOC maintains

the responsibility to deny or restore credit time, and an offender with a

grievance regarding credit time must exhaust all of his administrative remedies

with the DOC before resorting to judicial remedies. Id. We have previously

held that this court lacks subject matter jurisdiction to address an issue of credit

time when a defendant has failed to exhaust his administrative remedies. Id. In

such a case, we must dismiss the appeal. Id. Further, the burden is on the

defendant to show what the relevant procedures are and that he has exhausted

them at all levels. Young v. State, 888 N.E.2d 1253, 1254 (Ind. 2008); Burks-Bey

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




Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 9 of 14
[17]   Here, we find that Beverly has waived his exhaustion argument by failing to

       present evidence that he fulfilled his burden of showing the post-conviction

       court what the relevant DOC procedures were and that he had exhausted them

       at all levels. See id. Beverly’s Appendix consists of freestanding documents and

       documents that are labeled as “Exhibits” but lack any context. It is not clear if

       or when the documents were admitted as evidence. Two such freestanding

       documents are excerpts of the DOC’s “Offender Grievance Process” and

       “Classification Decisions Appeal Process.” (Appellant’s App. 6, 7). Neither of

       these excerpts is labeled as an exhibit, and Beverly has not given any context for

       either of them to establish which procedural remedy he was required to

       exhaust. Further, there is no evidence that he submitted either excerpt at his

       post-conviction hearing to inform the post-conviction court of the relevant

       procedures. Beverly withdrew his request for a transcript of the post-conviction

       hearing, so our ability to review the evidence he presented to the post-

       conviction court is limited.


[18]   Our supreme court has held that an appellant bears the burden of presenting

       this Court with a record that is complete with respect to the issues raised on

       appeal. Clark v. State, 562 N.E.2d 11, 13 (Ind. 1990), cert. denied. This burden

       includes the duty to ensure that the appellate court has before it a transcript of

       the trial proceedings or, where no transcript is available, an affidavit setting

       forward the content of the proceedings. Id. Failure to do so can result in

       waiver. Id. Accordingly, because Beverly’s exhaustion of administrative

       remedies is an issue on appeal and he did not meet his burden of ensuring that


       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 10 of 14
       the record was complete with respect to his handling of that issue at his hearing,

       we conclude that he has waived his claim.


[19]   Waiver notwithstanding, we conclude that we do not have subject matter

       jurisdiction over Beverly’s claim because he has not shown that he exhausted

       his remedies, regardless of whether the applicable DOC procedure was the

       “Offender Grievance Process” or the “Classification Decisions Appeal

       Process.” According to a document “Procedure for Earning Additional Credit

       under 135-50-6-33,” which Beverly included in his Appendix, it is the role of

       the Offender Placement/Release Sections within the Classification Division of

       the DOC to determine, once they have received verification that an offender

       has completed an educational degree, whether the offender meets all of the

       eligibility requirements for earning educational credit.7 (Appellant’s App. 15).

       The Supervisor of the Classification Division must then notify the offender of

       the change in his or her earliest possible release date and the amount of credit

       time that he or she has been awarded or denied. (Appellant’s App. 15). The

       DOC’s “Manual of Policies and Procedures” (“the Manual”) then delineates

       the “Offender Grievance Process” and the “Classification Decisions Appeals

       Process.


[20]   If, as the post-conviction court determined, the “Offender Grievance Process”

       applies to Beverly’s challenge, Beverly was required to attempt to “resolve the




       7
           Beverly did not provide a context for this document.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 11 of 14
       grievance in an informal manner by discussing it with [his] counselor or another

       staff member in the housing unit who may be able to assist in the resolution of

       the problem,” according to the excerpt of the Manual that he included in his

       Appendix. (Appellee’s App. 39). Beverly had to contact the staff member “as

       soon as possible after the incident, but in no case . . . [after] more than five (5)

       working days from the date of the incident” without “a reasonable explanation

       for delay.” (Appellee’s App. 39). If he was unable to resolve his grievance

       informally, he was then required to file a formal written grievance within

       twenty working days from the date of the incident triggering the grievance.


[21]   Beverly has not shown that he completed any of these processes within the time

       limits specified in the Manual. Even if his letter to the Commissioner or request

       for an interview with the ISP Site Manager qualified as attempts at resolving his

       grievance informally, he did not undertake either action until over a year after

       he was initially denied educational credit. In addition, he did not file his formal

       written grievance until February 18, 2015—five-and-a-half years after he was

       initially denied educational credit.


[22]   Alternatively, Beverly also failed to show that he exhausted his administrative

       remedies under the “Classification Decisions Appeals Process.” Pursuant to

       the excerpt of the Manual that Beverly included in his Appendix, if an offender

       decides to appeal a classification decision,

               the offender shall:




       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 12 of 14
                        (1) Submit a written appeal within ten (10) working days
                            from the date that the offender received the
                            classification decision;

                        (2) Submit the appeal on the State Form 9260,
                            CLASSIFICATION APPEAL;

                        (3) Attach relevant documents to the appeal form as
                            deemed necessary; and,

                        (4) Submit the appeal form and all other documents to the
                            Superintendent.

       (Appellant’s App. 7). The Superintendent is the final administrative review for

       intra-facility classification decisions. (Appellant’s App. 8).


[23]   Rather than filing an appeal within ten days, as required, Beverly did not file a

       classification appeal until November 13, 2014, five years after the Classification

       Division had initially denied his educational credit in August 2009. Further,

       Beverly’s classification appeal did not even directly challenge the Classification

       Division’s denial of his educational credit. Instead, Beverly argued in his

       appeal that he should have been allowed to have copies of all of his completed

       program certificates. He mentioned that he had not received all of his

       educational credit, but he did so only in order to justify his request for the

       certificates rather than to challenge the denial of the credit.


[24]   In spite of his failure to follow either the “Offender Grievance Process” or the

       “Classification Decision Appeals Process,” Beverly argues that he exhausted his

       remedies through the various attempts he made to raise his grievances with

       DOC officials. In support of this argument, Beverly cites to Delp v. State, No.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 13 of 14
       49A02-1405-PC-358 (Ind. Ct. App. March 27, 2015). However, Delp is an

       unpublished memorandum decision that does not have any precedential value.

       See Ind. Appellate Rule 65 (stating that a memorandum decision that is not

       published in the official reporter and is not citable). Beverly has not provided us

       with any other authority indicating that we may deviate from the DOC’s

       established procedures when determining whether a defendant has exhausted

       his remedies. Accordingly, we conclude that, because Beverly did not follow

       either of the DOC processes he potentially presented at his post-conviction

       hearing, he has not met his burden of showing that he exhausted his

       administrative remedies prior to filing his petition for post-conviction relief. As

       such, we do not have jurisdiction to review his claim and must dismiss his

       appeal. See, e.g., Members, 851 N.E.2d at 983 (holding that this Court was

       required to dismiss the appeal where the defendant had not exhausted his

       administrative remedies to challenge the denial of his educational credit).


[25]   Dismissed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-PC-1506 | August 16, 2016   Page 14 of 14
