Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Jul 09 2013, 6:22 am
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:

STEVEN GATES                                      GREGORY F. ZOELLER
Plainfield, Indiana                               Attorney General of Indiana

                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

STEVEN GATES,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1208-CR-685
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                         The Honorable Steven J. Rubick, Magistrate
                             Cause No. 49G01-1107-FB-51856



                                         July 9, 2013


               MEMORANDUM DECISION - NOT FOR PUBLICATION


DARDEN, Senior Judge
                              STATEMENT OF THE CASE

      Steven Gates appeals the denial of his request for credit time for the completion of

various programs while he was in the Marion County Jail awaiting trial. We affirm.

                       FACTS AND PROCEDURAL HISTORY

      Gates was arrested on July 21, 2011, and later charged with Class B felony

robbery, Class C felony battery, and being a habitual offender. On May 2, 2012, the day

scheduled for trial, Gates pleaded guilty to Class B felony robbery and being a habitual

offender pursuant to a plea agreement in which the State agreed to dismiss the battery

charge as well as charges pending in another cause number.          The plea agreement

provided for a sentence of sixteen years, with fourteen years to be served at the

Department of Correction and two years to be served on home detention. The trial court

accepted the plea, entered judgments of conviction, and later sentenced him according to

the terms of the agreement.

      On August 10, 2012, Gates filed a pro se Motion for Additional Earned Credit

Time. In the motion, he requested credit time pursuant to the educational credit time

statute for certain programs he had completed while in the Marion County Jail. He

attached several certificates of completion to the motion. The trial court denied the

motion, stating that “credit decisions regarding educational and vocational programs are

properly left to the discretion of the Department of Correction which is in the best

position to determine the relative merits of these programs, and this Court will not

second-guess the Department’s decision in this regard.” Appellant’s App. p. 88. Gates

now appeals.

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                             DISCUSSION AND DECISION

      As an initial matter, we note that we treat Gates’s denominated Motion for

Additional Earned Credit Time as a petition for post-conviction relief. See Young v.

State, 888 N.E.2d 1255, 1256 (Ind. 2008) (treating Young’s Verified Petition for

Educational Credit Time as a petition for post-conviction relief because “post-conviction

proceedings are the appropriate procedure for considering properly presented claims for

educational credit time”).   When appealing the denial of post-conviction relief, the

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

conclusion opposite that reached by the post-conviction court. Bethea v. State, 983

N.E.2d 1134, 1138 (Ind. 2013).

      Gates contends that the post-conviction court erred by denying his request for

credit time under Indiana Code section 35-50-6-3.3 (2012) for certificates of completion

he received while he was in the Marion County Jail awaiting trial.           However, no

provision of this statute grants credit time for Gates’s certificates. We presume he relies

on Section 35-50-6-3.3(b), but that provision imposes requirements on certificates not

met or shown here:

      (b) In addition to any credit time that a person earns under subsection (a) or
      section 3 of this chapter, a person may earn credit time if, while confined by
      the department of correction, the person:
              (1) is in credit Class I;
              (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
                      education program approved by the department of correction.
                      (B) A certificate of completion of a substance abuse program
                      approved by the department of correction.

                                            3
                     (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.

(Emphases added). Gates was not confined by the Department of Correction when he

earned his certificates, nor has he shown that the programs he completed are approved by

the Department of Correction.

       Gates nonetheless claims Murphy v. State, 930 N.E.2d 630 (Ind. Ct. App. 2010),

adopted in full by Murphy v. State, 942 N.E.2d 818 (Ind. 2011), entitles him to relief. In

that case, the defendant asked the sentencing court to grant him educational credit time

for receiving his general educational development diploma (“GED”) while in pretrial

confinement, but the court told him that he should submit his request to the Department

of Correction. On direct appeal, the Indiana Supreme Court reversed and remanded,

agreeing with this Court that the trial court is the proper authority to determine whether a

defendant who completes an educational degree before sentencing is entitled to

educational credit time. Murphy, 942 N.E.2d at 819.

       Murphy involved educational credit time for a GED. Educational credit time for a

GED is governed by Indiana Code section 35-50-6-3.3(a), which does not require that the

GED be earned while confined by the Department of Correction or that the GED be

approved by the Department of Correction. Murphy is thus inapplicable here.

       Because Gates is not entitled to receive educational credit time under Indiana

Code section 35-50-6-3.3 for certificates of completion he received while he was in the

Marion County Jail awaiting trial, he has not shown that the evidence as a whole leads


                                             4
unerringly and unmistakably to a conclusion opposite that reached by the post-conviction

court.

                                       CONCLUSION

         We therefore affirm the denial of post-conviction relief.

MAY, J., and VAIDIK, J., concur.




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