MEMORANDUM DECISION                                               Feb 20 2015, 10:03 am

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,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Keytron W. Johnson                                        Gregory F. Zoeller
Bunker Hill, Indiana                                      Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Keytron W. Johnson,                                       February 20, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          02A05-1408-CR-370
        v.                                                Appeal from the Allen Superior
                                                          Court
                                                          Cause No. 02D04-0004-CF-232
State of Indiana,
Appellee-Plaintiff.                                       The Honorable Frances C. Gull
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1408-CR-370 | February 20, 2015    Page 1 of 5
                                             Case Summary
[1]   Keytron Johnson appeals the denial of his request for educational credit time.

      We reverse and remand.


                                                     Issue
[2]   Johnson raises one issue, which we restate as whether the trial court properly

      denied his motion without a hearing.


                                                     Facts
[3]   In 2001, Johnson pled guilty to Class A felony burglary and was sentenced to

      thirty-five years. On July 11, 2014, Johnson filed a pro se petition seeking

      credit time for his completion of various education programs. The petition

      alleged that he had completed the programs and that the Department of

      Correction (“DOC”) failed to award him credit time for such. In his

      memorandum of law in support of his petition, Johnson claimed the DOC did

      not respond to his written requests for credit time or his appeals. On July 29,

      2014, before the State responded, the trial court denied the motion without a

      hearing. Johnson now appeals.


                                                  Analysis
[4]   Johnson argues that the trial court improperly denied his petition for

      educational credit time. In response, the State contends that, because Johnson

      failed to show what administrative remedies were available, “it is impossible for

      [Johnson] to prove that he exhausted his available remedies.” Appellee’s Br. p.


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      6. The State goes on to argue, “since the DOC did not respond to [Johnson’s]

      applications or appeals, it is unlikely that he actually exhausted his available

      remedies. Accordingly, the [trial court] court did not have jurisdiction, and this

      appeal should be dismissed.” Id.


[5]   The State relies on Members v. State, 851 N.E.2d 979, 983 (Ind. Ct. App. 2006),

      trans. denied, in which a panel of this court dismissed an appeal challenging the

      failure to award educational credit time reasoning that the petitioner’s failure to

      exhaust administrative remedies deprived the post-conviction court of subject

      matter jurisdiction. In Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008), our

      supreme court clarified “that post-conviction proceedings are the appropriate

      procedure for considering properly presented claims for educational credit

      time.” Further, to properly present a claim, the petitioner must follow the

      Indiana Post-Conviction Relief Rules and, if the petition is not the first petition

      for post-conviction relief, the rules for filing successive petitions must be

      followed. Young, 888 N.E.2d at 1256-57. Without clearly addressing the issue

      of subject matter jurisdiction, the Young court cited Members for the proposition

      that, to prevail on a claim presented via post-conviction procedures, a petitioner

      must establish to the post-conviction court that he or she exhausted his

      administrative remedies. Id. 1257.


[6]   Thus, based on Young, Johnson’s petition for educational credit time should be

      treated as a post-conviction relief petition, not as a free-standing challenge to his

      sentence. Nevertheless, dismissal is not appropriate because we do not believe

      that the failure to exhaust administrative remedies implicates the subject matter

      Court of Appeals of Indiana | Memorandum Decision 02A05-1408-CR-370 | February 20, 2015   Page 3 of 5
      jurisdiction of post-conviction courts. See First Am. Title Ins. Co. v. Robertson, 19

      N.E.3d 757, 760 (Ind. 2014) (explaining “that the exhaustion of administrative

      remedies under AOPA is a procedural error and does not implicate the trial

      court’s subject matter jurisdiction.”); K.S. v. State, 849 N.E.2d 538, 542 (Ind.

      2006) (observing that the question of subject matter jurisdiction involves a

      determination of whether a court has jurisdiction over the general class of

      actions to which a particular case belongs and that “characterizing other sorts of

      procedural defects as ‘jurisdictional’ misapprehends the concepts.”). The State

      makes no claim that post-conviction courts generally lack the authority to

      determine educational credit time claims, and we decline to dismiss the appeal

      on that basis.


[7]   As for the State’s claim that Johnson did not establish he exhausted his

      administrative remedies, the State offers no authority for the proposition that

      exhaustion of administrative remedies must be proven in a petition. It may

      very well be that Johnson has not exhausted his administrative remedies.

      However, Johnson should be afforded the opportunity to establish such, and the

      State should have the opportunity to respond before the post-conviction court

      rules on the petition. See Wilson v. State, 785 N.E.2d 1152, 1155 (Ind. Ct. App.

      2003) (remanding with instructions to allow the State the opportunity to

      respond to a request for educational credit pursuant to Indiana Post-Conviction

      Relief Rule 1(4)(a)). Thus, the trial court’s denial of Johnson’s petition was

      premature and contrary to the procedure set forth in the post-conviction rules.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1408-CR-370 | February 20, 2015   Page 4 of 5
                                                Conclusion
[8]   Johnson’s petition for educational credit time should be treated as a post-

      conviction relief petition. As such, the trial court’s denial of his claim was

      premature, and it should be addressed in accordance with the post-conviction

      rules. We reverse and remand.


[9]   Reversed and remanded.


      May, J., and Pyle, J., concur.




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