      MEMO RANDUM DECISION                                                 FILED
                                                                      Feb 08 2017, 8:38 am

      Pursuant to Ind. Appellate Rule 65(D), this                          CLERK
      Memorandum Decision shall not be regarded as                     Indiana Supreme Court
                                                                          Court of Appeals
      precedent or cited before any court except for the                    and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Thomas E. Sparks                                          Curtis T. Hill, Jr.
      Michigan City, Indiana                                    Attorney General of Indiana
                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Thomas E. Sparks,                                        February 8, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               89A04-1605-CR-1014
              v.                                               Appeal from the Wayne Superior
                                                               Court.
                                                               The Honorable Gregory A. Horn,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 89D02-9602-CF-8




      Darden, Senior Judge


                                       Statement of the Case
[1]   In 1996, Thomas Sparks was convicted of Class B felony dealing in a controlled

      substance, and was found to be an habitual offender. Since his original

      conviction and sentencing, Sparks has filed multiple pleadings in the trial and

      Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017   Page 1 of 6
      post-conviction courts, and appeals with this Court, attacking his underlying

      conviction and habitual offender adjudication. He now appeals from the denial

      of his application for a writ of habeas corpus but fails to present an argument

      which supports his claim that he is entitled to immediate discharge. We affirm.


                                                    Issues
[2]   Sparks raises the following issues (restated) for review:

              I. Whether the trial court should have allowed him to withdraw
              his guilty plea in a 1986 case that resulted in a conviction that
              was used as evidence in his 1996 habitual offender adjudication;
              II. Whether Sparks was denied effective assistance of trial
              counsel; and
              III. Whether the trial court erred in sentencing him in the 1986
              case.

                               Facts and Procedural History
[3]           . . . Sparks and Belinda Goodwin had a tumultuous relationship
              which spanned more than fifteen years. The relationship
              continued while Sparks was incarcerated at the Indiana
              Department of Correction from 1986 to 1996, for dealing in a
              schedule II controlled substance. Upon his release from prison,
              Sparks and Goodwin spent several days together at a motel,
              where they engaged in sexual activity and used drugs.
              Thereafter, Sparks left and stayed with his ex-girlfriend.
              Consequently, Goodwin contacted the Indiana State Police and
              assisted the law enforcement agency in conducting a controlled
              buy from Sparks. After Goodwin introduced the undercover
              officer to Sparks at Sparks’ residence, the officer exchanged three
              VCRs for three of Sparks’ dilaudid pills. Subsequently, the State
              charged Sparks with dealing in a schedule II controlled
              substance, a class B felony, and also sought an habitual offender

      Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017   Page 2 of 6
              enhancement.


      Sparks v. State, Cause No. 89A05-9907-CR-331, slip op. at 2-3 (Ind. Ct. App.

      July 12, 2000), trans. denied. It appears that one of the prior unrelated felonies

      used as evidence for the habitual offender adjudication was a 1986 Class B

      felony dealing in a schedule II controlled substance conviction, which was the

      result of a guilty plea and for which Sparks received a twenty-year sentence.


[4]   Sparks’s jury trial under the instant lower cause number was held in 1996, and

      Sparks was found guilty as charged. Sparks was sentenced to twenty years on

      the Class B felony dealing in a controlled substance conviction, and the

      sentence was enhanced by thirty years due to the habitual offender finding.


[5]   After his 1996 jury trial, Sparks filed a motion to correct error, claiming that

      one of the jurors committed misconduct during voir dire. The trial court denied

      the motion. Id. Sparks then filed a direct appeal, claiming that the trial court

      erroneously denied the motion to correct error and that the evidence was

      insufficient to sustain his conviction. Id. This Court affirmed and our Supreme

      Court subsequently denied transfer. Id.


[6]   In 2001, Sparks filed a petition for post-conviction relief, arguing that new

      evidence had been discovered that suggested that the State had suppressed

      exculpatory evidence. Sparks v. State, 89A01-0404-PC-00160, slip op. at 3 (Ind.

      Ct. App. November 12, 2004). The post-conviction court denied relief, and

      Sparks appealed. Id. This Court affirmed.



      Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017   Page 3 of 6
[7]    In 2005, Sparks requested permission to seek successive post-conviction relief

       under Cause Number 89A01-0404-PC-00160. This Court denied his request.

[8]    In 2015, Sparks filed a motion to correct erroneous sentence. On February 18,

       2016, the trial court denied the motion.

[9]    The current case began on February 25, 2016, when Sparks filed a “Notice of

       Filing Writ of Habeas Corpus.” The trial court dismissed the notice on

       February 29, 2016. On March 14, 2016, Sparks filed an “Application for a Writ

       of Habeas Corpus,” alleging that he was being held illegally at the Indiana State

       Prison because the previous convictions that formed the basis of his habitual

       offender finding “were proven on the face of the record to be void.” See

       Appellant’s Br. p. 55. The trial court dismissed the application on March 30,

       2016, stating that it did not meet the requirements because it was unverified.


[10]   On April 18, 2016, Sparks filed an acknowledgment of his pleading by a

       witness, stating that he was thereby verifying the notice the trial court had

       dismissed on February 29, 2016. The trial court found that the

       acknowledgement lacked clarity and treated it as a motion to correct

       error/motion to reconsider the court’s dismissal of the notice. The court denied

       Sparks’s acknowledgment as untimely, because it was filed more than thirty

       days after the February 29th dismissal of the notice. Sparks appeals.


                                    Discussion and Decision
[11]   Sparks appeals from the denial of his application for writ of habeas corpus.

       Therefore, the only issue on appeal should be whether the trial court erred by
       Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017   Page 4 of 6
                                                1
       denying Sparks’s application. Indiana Code section 34-25.5-1-1 (1998)

       provides that “[e]very person whose liberty is restrained, under any pretense

       whatever, may prosecute a writ of habeas corpus to inquire into the cause of the

       restraint, and shall be delivered from the restraint if the restraint is illegal.”

       “The purpose of the writ of habeas corpus is to bring the person in custody

       before the court for inquiry into the cause of restraint.” State ex rel. O’Leary v.

       Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941). “One is entitled to habeas

       corpus only if he is entitled to his immediate release from unlawful custody.”

       Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496, 498 (1978). “[A]

       petitioner may not file a writ of habeas corpus to attack his conviction or

       sentence.” Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980

       (Ind. Ct. App. 2001), superseded by statute on other grounds as stated in Paul v.

       State, 888 N.E.2d 818, 826 (Ind. Ct. App. 2008) (citing Hawkins, 268 Ind. at 140,

       374 N.E.2d at 498 (citing Ind. Post-Conviction Rule 1(1)(c), which states that a

       writ of habeas corpus that attacks a conviction or sentence must be transferred

       to the court of conviction and treated as though filed as a post-conviction relief

       petition)).

[12]   Sparks’s application for writ of habeas corpus was not a proper writ for habeas

       corpus because it attempted to challenge his 1996 conviction and sentence, in

       addition to his 1996 sentence enhancement after an habitual offender finding.




       1
        It is not entirely clear from the record whether this issue is properly before this Court. We, nevertheless,
       exercise our judicial discretion and address the issue.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017              Page 5 of 6
       This appeal represents Sparks’s most recent attempt to collaterally attack his

       previous convictions, adjudications, and sentences which we will not entertain.

       The decision of the trial court is affirmed.


                                                Conclusion
[13]   For the reasons stated, we affirm the trial court’s decision.


[14]   Affirmed.


[15]   Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A04-1605-CR-1014 | February 8, 2017   Page 6 of 6
