MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Jul 20 2017, 8:56 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
John Chupp                                                Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Chupp,                                               July 20, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          48A04-1610-MI-2381
        v.                                                Appeal from the Madison Circuit
                                                          Court
Wendy Knight, Superintendent                              The Honorable Mark Dudley,
of Correctional Industrial                                Judge
Facility,                                                 Trial Court Cause No.
Appellee-Respondent                                       48C06-1607-MI-505




Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017      Page 1 of 6
[1]   John Chupp, pro se, appeals the dismissal of his Petitions for Writ of Habeas

      Corpus. Chupp presents four issues for our review, which we consolidate and

      restate as: Did the trial court err in dismissing Chupp’s request for habeas

      relief?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Chupp is currently incarcerated in the Indiana Department of Correction for

      crimes he committed in 1982. A jury found Chupp guilty of Class A felony

      burglary, Class A felony robbery, and Class B felony criminal confinement for

      his involvement, along with two others, in breaking into a woman’s home in

      Southport, robbing her, tying her up, and sexually assaulting her. Chupp

      received an aggregate sentence of seventy years. Our Supreme Court affirmed

      Chupp’s convictions and sentence on direct appeal. See Chupp v. State, 509

      N.E.2d 835 (Ind. 1987).


[4]   On July 21, 2016, Chupp filed a Verified Petition for Writ of Habeas Corpus

      (Petition). As the basis for his Petition, Chupp asserted that his detention is

      illegal “because the State is denying [him] a transfer to the STOP program

      where [he] can gain his release” and “that the DOC has not answered any of

      [his] classification appeals of matter dealing with the matter discussed in this

      petition [i.e., his transfer to a different program/facility].” Appellant’s Appendix

      at 7-8. On August 22, 2016, Chupp filed a second Petition for Writ of Habeas



      Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017   Page 2 of 6
      Corpus. In this second petition, Chupp claimed that he was being illegally

      detained because:


              a. I am being kept at CIF without any medical attention at all


              b. I am in need of medication and surgery and for 3 months this
              facilities [sic] doctor and medical have refused to see me


              c. I won a grievance to see the doctor here and I am still being
              denied medical attention by medical here


              d. Need to be handle [sic] by a doctor


      Id. at 21.


[5]   On August 31, 2016, the State, on behalf of Wendy Knight, Superintendent of

      Correctional Industrial Facility, filed a motion to dismiss Chupp’s Petition

      pursuant to Ind. Trial Rule 12(B)(1), asserting that the court was without

      subject matter jurisdiction because Chupp was not challenging the lawfulness of

      his detention or even claiming that he was entitled to immediate release. On

      September 9, 2016, the trial court granted the State’s motion to dismiss. The

      court explained:


              [The State]’s Motion addresses [Chupp]’s original Petition[]; it
              did not address the Amended Petition[] filed on August 22, 2016.
              The court grants the motion despite this oversight because
              neither Petition claims that the State wrongly detained [Chupp].
              [Chupp] alleges the State refused his facility placement request
              and that the State refused his request for medical care. Neither
              allegation implicates a wrongful detention.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017   Page 3 of 6
      Id. at 29.


[6]   On September 12, 2016, Chupp filed a Motion for Default Judgment on the

      basis that the State had not responded to his claim in paragraph 4(b) of his

      Petition “that the DOC has not answered any of [his] classification appeals . . .

      .” Appellant’s Appendix at 7-8. The trial court denied this motion, noting that it

      had already granted the State’s motion to dismiss. Chupp next filed a Motion

      to Correct Error, in which he alleged that “the State ha[d] not answered his

      classification appeals on educational time cuts which is what this petition is

      now all about.” Id. at 33. Two days later, the trial court denied Chupp’s

      motion to correct error. Chupp now appeals.


                                          Discussion & Decision


[7]   The purpose of a writ of habeas corpus is to determine the lawfulness of custody

      or detention of the defendant and may not be used to determine collateral

      matters not affecting the custody process. Hardley v. State, 893 N.E.2d 740, 742

      (Ind. Ct. App. 2008). A defendant is entitled to a writ of habeas corpus if he is

      unlawfully incarcerated and is entitled to immediate release. Id.; see also Ind.

      Code § 34-25.5-1-1. Generally, we review the trial court’s habeas decision for

      an abuse of discretion. Id. Where, however, the trial court dismisses the action

      pursuant to Ind. Trial Rule 12(B)(1) for lack of subject matter jurisdiction based

      only on a paper record, our review is de novo. GKN Co. v. Magness, 744 N.E.2d

      397, 401 (Ind. 2001).




      Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017   Page 4 of 6
[8]    In his Petition, Chupp claimed that he was entitled to habeas relief because the

       (1) the State denied him a transfer to a different facility and (2) the State had not

       addressed “classification appeals of matter dealing with the matter discussed in

       this petition [i.e., his transfer to a different facility].” Appellant’s Appendix at 8.

       In his Amended Petition, Chupp alleged that he was being denied needed

       medical care. His only statement that he is entitled to immediate release is

       found in the form language of the document Chupp filled out. As found by the

       trial court, Chupp’s specific allegations in his Petition and Amended Petition do

       not address his restraint, why it is illegal, or why he is entitled to immediate

       release.


[9]    As our Supreme Court has found, a trial court “does not have ‘jurisdiction to

       entertain a petition for a writ of habeas corpus inasmuch as petitioner [is]

       serving time under a proper commitment, his sentence [has] not expired and he

       [has] not been denied good time or credit time.” Partlow v. Superintendent,

       Miami Correctional 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 (Ind. Ct. App.

       2008), trans. denied. In other words, “[o]ne is entitled to habeas corpus only if

       he is entitled to his immediate release from unlawful custody.” Id. (quoting

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

       asserted no basis for immediate release, we conclude that the trial court did not

       err in dismissing Chupp’s request for habeas relief.


[10]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017   Page 5 of 6
Kirsch, J. and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 48A04-1610-MI-2381 | July 20, 2017   Page 6 of 6
