 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                    Dec 17 2014, 10:22 am
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:
CARRIE DOUGLAS                                       GREGORY F. ZOELLER
Carlisle, Indiana                                    Attorney General of Indiana

                                                     JODI KATHRYN STEIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CARRIE DOUGLAS,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 49A02-1310-CR-911
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                APPEAL FROM THE MARION COUNTY SUPERIOR COURT
                         The Honorable Mark D. Stoner, Judge
                               Cause No. CR87296F


                                         December 17, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                            Case Summary

       The trial court dismissed Carrie Douglas’s petition for writ of habeas corpus after

finding that it was actually a successive petition for post-conviction relief that Douglas had

not received permission from this Court to file. On appeal, Douglas appears to argue that

his sentence is erroneous because the trial court erred when it imposed the habitual-

offender enhancement as a separate sentence, and that the trial court does not need this

Court’s permission to correct his sentence. Because we find that Douglas’s petition was

properly treated as a successive petition for post-conviction relief, and that Douglas has

failed to follow the necessary procedure for filing such a petition, we affirm the trial court’s

dismissal of Douglas’s petition.

                                   Facts and Procedural History

        In 1988, Douglas was convicted of rape as a Class A felony, criminal confinement

as a Class B felony, and found to be a habitual offender.1 Thereafter, Douglas was

sentenced to “forty years for rape, twenty years for [criminal] confinement, and thirty years

for being a habitual offender, with the sentences to be served consecutively.” Douglas v.

State, 800 N.E.2d 599, 603 (Ind. Ct. App. 2003), reh’g denied, trans. denied. On direct

appeal, Douglas questioned the sufficiency of the evidence, the trial court’s denial of his


       1
           On direct appeal, this Court summarized the facts as follows:

       The evidence reveals that Douglas persuaded the victim to drive with him on an errand.
       He eventually drove her to a park and smoked marijuana and drank wine coolers with her.
       Douglas then asked the victim to have sexual intercourse with him, which she refused. In
       response, Douglas locked the car door, retrieved a knife from the glove compartment, and
       held it to her throat as he threatened to kill her. He then forced the victim to disrobe and
       engage in sexual intercourse with him in the car.

Douglas v. State, 800 N.E.2d 599, 603 (Ind. Ct. App. 2003) (quoting Douglas v. State, No. 49A02-8906-
CR-300, mem. op. at 2, 567 N.E.2d 1206 (Ind. Ct. App. Mar. 5, 1991), reh’g denied, trans. denied).
                                                     2
motion for a new trial based on newly discovered evidence, the trial court’s admission of

evidence, and the effectiveness of assistance from trial counsel. Id. This Court held that

all of Douglas’s claims failed and affirmed his sentence and conviction. See id.

        In 2002, Douglas filed a petition for post-conviction relief, which was denied, and

this Court affirmed that denial. In 2009, this Court declined to authorize the filing of

Douglas’s successive petition for post-conviction relief. Thereafter, Douglas filed two

motions to correct erroneous sentence—in 2010 and 2012—and a motion for declaratory

judgment; in all three motions, Douglas challenged his sentence on grounds requiring the

court to look beyond the face of the judgment into matters contained within the record. All

three motions were dismissed as successive petitions for post-conviction relief that had not

been authorized by this Court.2

        In September 2013, Douglas filed a verified petition for writ of habeas corpus,

which the trial court determined was actually a successive post-conviction petition in which

Douglas was again challenging his sentence. The trial court dismissed his petition, finding

that Douglas’s petition did not comply with Post-Conviction Rule 1, Section 12, as Douglas

had not received permission to file such a petition. Douglas now appeals from this

dismissal.




        2
           As noted in the State’s brief, Douglas also appears to be trying to appeal the denial of his two
previous motions to correct erroneous sentence and his motion for declaratory judgment in this appeal, but
because he did not timely appeal those orders, he has waived these challenges. “In any event, [Douglas]
could not raise claims of a single episode, double jeopardy, and Apprendi in a motion to correct erroneous
sentence, as the trial court repeatedly found.” Appellee’s Br. p. 7 (citing Appellant’s App. p. 6-7, 11-13;
Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008) & Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004)).
                                                    3
                                  Discussion and Decision

       Douglas appeals from the dismissal of his petition for writ of habeas corpus. On

appeal, Douglas appears to argue that his sentence is erroneous, and that the trial court does

not need to obtain permission from this Court to correct the sentence. A defendant is

entitled to a writ of habeas corpus if he is unlawfully incarcerated and is entitled to

immediate release. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008). We review

the trial court’s habeas decision for an abuse of discretion. Id. Without reweighing the

evidence, this Court considers only that evidence most favorable to the judgment and

reasonable inferences drawn therefrom. Id.

       However, as stated by our Supreme Court: “One is entitled to habeas corpus only

if he is entitled to his immediate release from custody. . . . A prisoner can only obtain a

discharge through habeas corpus. He cannot obtain a modification of his commitment.”

Hawkins v. Jenkins, 268 Ind. 137, 139, 140, 374 N.E.2d 496, 498 (1978). Therefore, a

petitioner attacking the validity of his sentence who does not allege that he is entitled to

immediate release must file a petition for post-conviction relief in the court of conviction

(rather than a petition for a writ of habeas corpus in the court in the county of incarceration).

See Hardley, 893 N.E.2d at 743. Nevertheless, “if a petitioner erroneously captions his

action as petition for a writ of habeas corpus rather than post-conviction relief, courts will

frequently and properly treat the petition as one for post-conviction relief, based on the

content of the petition, rather than the caption.” See id. (citing Hawkins, 374 N.E.2d at

498); see also Ind. Post-Conviction Rule 1(1)(c) (“if a person applies for a writ of habeas

corpus in the county where the person is incarcerated and challenges the validity of his . .


                                               4
. sentence, that court shall transfer the cause to the court in which the conviction took place,

and the latter court shall treat it as a petition for relief under this Rule.”).

       The trial court therefore properly treated Douglas’s petition for writ of habeas

corpus as a successive petition for post-conviction relief, since Douglas had previously

filed for (and been denied) post-conviction relief. See Douglas, 800 N.E.2d 599. As such,

Douglas was required to request a second, or successive, petition for post-conviction relief

by submitting a properly and legibly completed Successive Post-Conviction Relief Rule 1

Petition Form in substantial compliance with the form appended to Post-Conviction Rule

1, to the Clerk of the Indiana Supreme Court, Indiana Court of Appeals, and Tax Court.

See P-C.R. 1(12)(a). Then, the Court would authorize the filing of the petition if the

petitioner established a reasonable possibility that the petitioner is entitled to post-

conviction relief. See P-C.R. 1(12)(b) (emphasis added).

       Here, Douglas did not follow the clear, proper procedure for filing a successive

petition, and therefore we find that the trial court did not err in dismissing his petition.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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