                                                                      FILED
                                                                 Aug 09 2017, 5:28 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Todd A. Currie, Jr.                                      Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd Alan Currie, Jr.,                                   August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         01A02-1609-PC-2077
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad E. Kukelhan,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         01C01-1606-PC-4



Robb, Judge.




Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017                 Page 1 of 10
                                 Case Summary and Issue
[1]   Todd Alan Currie, Jr., pro se, appeals the dismissal of his petition for post-

      conviction relief, raising one issue for our review: whether the post-conviction

      court erred in treating his petition as a successive petition for post-conviction

      relief and therefore erred in dismissing his petition with prejudice. Concluding

      the post-conviction court erred in treating Currie’s petition as an improperly

      filed successive petition, we reverse and remand.



                             Facts and Procedural History
[2]   On November 2, 2006, Currie entered a plea of guilty to two counts of Class B

      felony child molesting in Adams Circuit Court. On January 22, 2007, Currie

      was sentenced to twenty years on each count, to be served concurrently, with

      ten years of each sentence suspended.1


[3]   In 2010, Currie filed in Adams Circuit Court a pro se petition seeking post-

      conviction relief (“2010 PCR”). The 2010 PCR was later withdrawn at Currie’s

      request without prejudice. Currie alleges he was released from the Indiana

      Department of Correction in June 2012 and placed on probation and parole.

      He began his probation in Adams County, but his probation was transferred to

      another county in January 2014. In November 2014, the Adams County




      1
       Currie was sentenced on that same date in two other causes that did not affect his aggregate sentence and
      are not at issue here.

      Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017                       Page 2 of 10
      probation department filed a notice of probation violation. The Adams Circuit

      Court revoked Currie’s probation and ordered him to serve the ten years

      previously suspended from his sentence.


[4]   In January 2016, Currie filed in Adams Circuit Court a pro se motion for relief

      from judgment/petition for post-conviction relief (“2016 PCR”). Currie alleges

      his 2016 PCR raised issues related to ineffective assistance of counsel, whether

      Adams County could revoke his probation when his probation had been

      transferred to another county, and whether he could be placed simultaneously

      on probation and parole.2


[5]   On April 28, 2016, Currie filed in Henry Circuit Court a pro se complaint for

      writ of habeas corpus alleging his incarceration was illegal because neither his

      plea agreement nor the trial court at his sentencing hearing referred to a period

      of mandatory parole.3 The State moved to have Currie’s complaint treated as a

      petition for post-conviction relief and transferred to Adams Circuit Court

      pursuant to Post-Conviction Rule 1(1)(c). Currie responded to the State’s

      motion by agreeing the matter should be transferred to the sentencing court,

      noting he had a petition for post-conviction relief already pending there, and

      requesting the case be transferred to Adams Circuit Court to be docketed under




      2
          Currie has not included a copy of his 2016 PCR petition in his appendix.
      3
       Currie is currently incarcerated at the New Castle Correctional Facility located in Henry County.
      Jurisdiction over a writ of habeas corpus is with a court in the county of incarceration. Ind. Code § 34-25.5-
      2-2.

      Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017                          Page 3 of 10
the existing 2016 PCR cause number. The Henry Circuit Court transferred the

complaint to Adams Circuit Court to be re-filed as a petition for post-conviction

relief. The Adams Circuit Court docketed the case on April 29, 2016, under a

new cause number (“Current PCR”). On the same day, the post-conviction

court issued the following order in the Current PCR:


        [Currie] has previously filed a Petition for Post-Conviction Relief
        [in 2010 and 2016].


        Pursuant to Indiana Post-Conviction Rule 1(12), [Currie] must
        seek permission to file a successive petition for post-conviction
        relief by filing a Successive Post-Conviction Rule 1 Petition Form
        and the proposed successive petition for post-conviction relief
        with the Clerk of the Court for the Indiana Court of Appeals,
        which [Currie] has not done.


        As [Currie] has not complied with the procedures found in
        Indiana Post-Conviction Rule 1(12), this Court should dismiss
        this successive petition for post-conviction relief.


        The Court now dismisses this cause with prejudice.


Appellant’s Appendix, Volume 2 at 12. Currie filed a motion to correct error

and a motion for the post-conviction court to take judicial notice of the records

from the 2010 and 2016 PCRs. The post-conviction court took no action on

Currie’s motions. Currie now appeals.



                           Discussion and Decision

Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017   Page 4 of 10
[6]   Currie acknowledges the Henry Circuit Court correctly transferred his Current

      PCR to Adams Circuit Court, because the allegations of his petition do not

      entitle him to immediate release. See id. at 43; see also Ind. Post-Conviction

      Rule 1(1)(c); Martin v. State, 901 N.E.2d 645, 647 (Ind. Ct. App. 2009) (holding

      that petitioner’s habeas corpus petition challenging the validity of his

      convictions and sentence was required to be transferred from the county where

      he was incarcerated to the court where he was convicted and sentenced and was

      to be treated as a petition for post-conviction relief). He argues, however, that

      upon accepting the transfer, the post-conviction court erred in applying Post-

      Conviction Rule 1(12) to the Current PCR and dismissing it on the basis that it

      is an unauthorized successive petition. In the alternative, he argues the post-

      conviction court erred in dismissing his Current PCR with prejudice.


[7]   If a petitioner has never sought post-conviction relief in the past, he or she must

      follow the procedures outlined in Post-Conviction Rule 1(1). If the petitioner

      has sought post-conviction relief before, however, he or she must follow the

      procedure found in Post-Conviction Rule 1(12) for successive petitions. Post-

      Conviction Rule 1(12) provides a petitioner must request and receive

      permission from the appellate court to pursue a successive petition for relief.

      See Love v. State, 52 N.E.3d 937, 939-40 (Ind. Ct. App. 2016). When a court

      encounters an improper successive petition for post-conviction relief, it should

      dismiss the action. Beech v. State, 702 N.E.2d 1132, 1137 (Ind. Ct. App. 1998).

      Here, the post-conviction court determined Currie’s Current PCR was a

      successive petition because he previously filed the 2010 and 2016 PCRs. Currie


      Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017   Page 5 of 10
      asserts the post-conviction court erred as a matter of law in interpreting Post-

      Conviction Rule 1(12) to require dismissal of his Current PCR because no final

      judgment on the merits of any post-conviction petition has been entered and

      therefore the Current PCR is not a successive petition requiring this court’s

      permission to file. Interpretation of our supreme court’s rules, including the

      Rules of Procedure for Post-Conviction Remedies, is a purely legal question we

      review de novo. State v. Holtsclaw, 977 N.E.2d 348, 349 (Ind. 2012).


[8]   A post-conviction petition is not a second or successive petition requiring leave

      of court unless and until a first petition has been litigated to conclusion. See

      Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004) (noting Post-Conviction Rule

      1(12) allows a convicted person “who has already completed one state post-

      conviction relief proceeding to request a successive opportunity for post-

      conviction relief”) (emphasis added); see also P-C.R. 1 Appendix (Instructions to

      Form for Successive Post-Conviction Relief Rule 1 Petitions stating “If you

      have previously filed a Petition for Post-Conviction Relief directed to this

      conviction . . . and the earlier petition was decided on the merits, you must fill out

      this form and file it along with your petition.”) (emphasis added); cf. Lacey v.

      State, 829 N.E.2d 518, 519 (Ind. 2005) (holding petitioner’s request for DNA

      testing, treated as a petition for post-conviction relief pursuant to Post-

      Conviction Rule 1(1)(d) and filed while a petition for post-conviction relief was

      pending, was not a second or successive petition requiring authorization

      because he had not yet litigated his first petition to conclusion).




      Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017       Page 6 of 10
[9]    “At any time prior to entry of judgment the court may grant leave to withdraw

       the petition.” P-C.R. 1(4)(c). Currie’s 2010 PCR was withdrawn without

       prejudice and never decided on the merits; therefore, it is not a “completed”

       post-conviction proceeding that would render the Current PCR a successive

       petition. See Long v. State, 679 N.E.2d 981, 983 (Ind. Ct. App. 1997) (“Where

       an action is voluntarily dismissed without prejudice the situation is as though

       no action had ever been brought[;]” therefore, where petitioner’s first petition

       was dismissed without prejudice, he had “the right to refile his petition for post-

       conviction relief, and it should be treated as a new filing”); cf. Beech, 702 N.E.2d

       at 1134 (noting on petitioner’s request to “reinstate” an earlier successive

       petition for post-conviction relief that because the earlier petition had been

       dismissed, there was nothing to “reinstate”). The post-conviction court

       therefore erred to the extent it relied on the 2010 PCR as a reason to dismiss the

       Current PCR.


[10]   As for the 2016 PCR, Currie asserts it was still pending when the post-

       conviction court entered its order dismissing the Current PCR for failure to

       follow Rule 1(12). See Appellant’s Brief at 10. The State contends the record

       does not clearly support this assertion. Both parties direct us to the

       Chronological Case Summary (“CCS”) for the 2016 PCR, which shows Currie

       filed a pro se motion for relief/petition for post-conviction relief on January 28,

       2016; the State filed its answer on February 2, 2016; and an “Order Re: Pro-Se

       Request denying Motion” was entered on April 4, 2016. Appellant’s App., Vol.

       2 at 62-63. The CCS reflects the “disposition date” for the 2016 PCR is April 4,


       Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017   Page 7 of 10
2016, yet additional entries have been made on the CCS since that date,

including “Court’s Entry and Order Re: Pro Se Request” entries on August 9,

18, and 23, and September 19, 2016. Id. at 62, 64-65. Therefore, the document

the parties cite in support of their respective positions is inconclusive at best.

And although Currie has not provided any other documents associated with the

2016 PCR when it is his obligation to provide a record sufficient for us to decide

the issues he presents, Perez-Grahovac v. State, 894 N.E.2d 578, 585 (Ind. Ct.

App. 2008), trans. denied, we do note the court issued an “order of appointment”

and forwarded Currie’s 2016 PCR to the office of the State Public Defender on

February 1, 2016; there is nothing to suggest the State moved for summary

disposition; and no evidentiary hearing has been held. Finally, we also note

that the post-conviction court’s order dismissing the Current PCR mentions

only that Currie had previously filed a petition for post-conviction relief and

does not indicate the 2016 PCR had already been resolved. As resolution of

one post-conviction relief proceeding is what makes a second petition

“successive,” and as it appears plausible that Currie’s 2016 PCR had not been

resolved on the merits prior to April 28, 2016, the date on which he filed the

Current PCR, we conclude the post-conviction court erred in considering the

Current PCR to be a successive petition requiring authorization to file and

therefore erred in dismissing the Current PCR for that reason.4




4
 Caselaw states when a court encounters an improperly filed successive petition for post-conviction relief, it
should be dismissed for lack of jurisdiction. See, e.g., Beech, 702 N.E.2d at 1137. More recent caselaw from
our supreme court, however, has made clear it is not appropriate to declare that a “lack of jurisdiction”

Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017                          Page 8 of 10
[11]   We do agree with the State that Currie is required to raise all known claims

       challenging his conviction and sentence in a single petition, however. P-C.R.

       1(1)(8) (“All grounds for relief available to a petitioner under this rule must be

       raised in his original petition.”). As the post-conviction rules preclude Currie

       from simultaneously litigating multiple petitions challenging the same

       judgment, the post-conviction court’s erroneous dismissal of the Current PCR

       could have been harmless error. This is because Post-Conviction Rule 1(4)(c)

       would ordinarily allow Currie the opportunity to amend his 2016 PCR to

       incorporate the claims in the Current PCR.5 As the State notes, “it is




       precludes consideration of a case when a party has failed to comply with procedural requirements, and the
       court has significantly relaxed those requirements when it comes to the exercise of appellate jurisdiction. See
       In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017) (noting a premature appeal from a non-
       final order does not deprive the appellate court of jurisdiction); In re Adoption of O.R., 16 N.E.3d 965, 970-71
       (Ind. 2014) (holding appellate court has jurisdiction to consider an appeal forfeited for failure to file a timely
       notice of appeal). Jurisdiction “speak[s] to the power of the court rather than to the rights or obligations of
       the parties.” In re O.R., 16 N.E.3d at 971 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61 (2010)
       (holding failure to comply with a statutory registration requirement is a precondition to filing a copyright
       infringement claim but does not restrict a court’s subject matter jurisdiction)). “Subject matter jurisdiction” is
       the power of a court, granted by statute or our constitution, to decide the general class of actions to which a
       case belongs. Garwood v. State, 77 N.E.3d 204, 215 (Ind. Ct. App. 2017). Circuit courts have original and
       concurrent jurisdiction in all civil and criminal cases, Ind. Code § 33-28-1-2(a)(1), and Post-Conviction Rule
       1(12) simply imposes a pre-condition to invoking that jurisdiction in certain cases. In fact, there was no such
       pre-condition to successive petitions until January 1, 1994, when Post-Conviction Rule 1(12) was amended to
       require prior authorization. See P-C.R. 1(12) (1991). Thus, it is clear the Adams Circuit Court has
       jurisdiction to entertain a successive petition and if Currie has indeed filed a successive petition without prior
       authorization, it is only a procedural default and not a jurisdictional defect.
       5
         It appears that is what Currie intended to do. In his response to the State’s Motion to Transfer to
       Sentencing Court, Currie asked that his self-styled habeas petition be transferred to the Adams Circuit Court
       to be filed under the 2016 PCR cause number. Although his response was filed in the Henry Circuit Court
       and sought an action the Henry Circuit Court did not have the power to take, it is clear Currie understands
       all his claims should be heard in one proceeding. See Brief of Appellant at 11 (Currie noting his Current PCR
       was dismissed “without an opportunity for the petitioner to present any relevant information or motions,
       such as to withdraw without prejudice under P-C.R. 1(4)(C) or to amend the issues into an already pending
       petition”). Moreover, the post-conviction court had Currie’s response before it at the time it dismissed the
       Current PCR but did not allow him the time to pursue amending his 2016 PCR and/or withdrawing his
       Current PCR.

       Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017                            Page 9 of 10
       incumbent upon [Currie] to properly seek to amend his petition and raise all

       grounds for relief available to him” in a single petition and it is not the post-

       conviction court’s obligation to “shape and monitor the contents of his

       pleadings[.]” Brief of Appellee at 12. But the fact the post-conviction court

       dismissed the Current PCR with prejudice for being an unauthorized successive

       petition on the same day it docketed the transferred case precluded the

       opportunity for Currie to amend his 2016 PCR to include the allegations from

       his Current PCR. “A dismissal with prejudice is a dismissal on the merits . . .

       and is res judicata as to any questions which might have been litigated.” Fox v.

       Nichter Constr. Co., Inc., 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012), trans.

       denied. Currie should be given the opportunity to amend his pending petition to

       pursue all his post-conviction claims in one proceeding. Therefore, we must

       reverse the dismissal with prejudice and remand for further proceedings

       consistent with this opinion.



                                               Conclusion
[12]   The post-conviction court improperly determined Currie’s Current PCR was a

       successive petition and therefore erred in dismissing his petition with prejudice.

       We reverse the dismissal and remand for further proceedings consistent with

       this opinion.


[13]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.

       Court of Appeals of Indiana | Opinion 01A02-1609-PC-2077 | August 9, 2017   Page 10 of 10
