Robert Jenkins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED

Pursuant to Ind. Appellate Rule 65(D), Sep 27 2017, 10:17 am

this Memorandum Decision shall not be CLERK

Indiana Supreme Court

regarded as precedent or cited before any Court of Appeals

and Tax Court

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

Robert Jenkins Curtis T. Hill, Jr.

Bunker Hill, Indiana Attorney General of Indiana

Kyle Hunter

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert Jenkins, September 27, 2017

Appellant-Defendant, Court of Appeals Case No.

49A04-1510-PC-1787

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Kurt Eisgruber,

Appellee-Plaintiff Judge

Trial Court Cause Nos.

49G01-1408-PC-40662

49G01-1408-PC-40663

May, Judge.

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[1] Robert Jenkins, pro se, appeals the post-conviction court’s dismissal of his

petition for post-conviction relief (“PCR”). Jenkins raises seven issues, which

we consolidate, reorder, and restate as:

1) Whether the court erred when it denied Jenkins’ motion to

appoint counsel;

2) Whether the court abused its discretion when it failed to grant

Jenkins’ motion to continue his hearing; and

3) Whether the court erred when it determined Jenkins failed to

exhaust his administrative remedies.

We affirm.

Facts and Procedural History

[2] Jenkins is presently serving a thirty-year sentence in the Indiana Department of

Correction (“DOC”) for Class B felony armed robbery. On August 22, 2014,

Jenkins filed a PCR petition asserting:

The following programs have been completed by Jenkins while

incarcerated, but he has not received any additional credit time

for their completion

a) Substance Abuse Phase 1 (2010)

b) Substance Abuse Phase 2 (2010)

c) Substance Abuse Phase 3 (2010)

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d) Thinking For A Change (2009)

e) Therapeutic community stages 1, 2, 3, and 4.

Additionally, Jenkins completed on his own, [sic] a college-level

study program from Blackstone Paralegal College with a

Certificate in Paralegal Studies in 2011.

(Appellant’s App. Vol. 2 at 16.) The PCR court set a hearing on Jenkins’

petition for August 11, 2015. On September 19, 2014, the State Public

Defender’s Office filed notice that it would not represent Jenkins in the

proceeding, and Jenkins thereafter confirmed he wished to proceed pro se. In

December 2014, the State filed an appearance and answer.

[3] On July 10, 2015, the State filed a “Motion to Dismiss for Lack of Jurisdiction

or in the Alternative, Motion for Summary Disposition,” (id. at 24), and a

memorandum of law in support thereof. On July 17, Jenkins filed a motion to

continue the evidentiary hearing; on July 20, he filed a motion for appointment

of counsel; and on July 22, he filed a motion for earned good time credit. On

July 30, Jenkins filed a response to the State’s motion to dismiss or for

summary disposition. The PCR court took all the motions under advisement.

[4] On August 11, 2015, the PCR court held the scheduled hearing on Jenkins’

PCR petition. On September 16, 2015, the court entered an order denying

Jenkins’ request for a continuance as moot, an order denying Jenkins’ request

for counsel, and two final orders: one dismissed Jenkins’ petition for “Failure

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to Exhaust Administrative Remedies,” (id. at 68-70), and the other denied

Jenkins’ petition on the merits. (Id. at 71-3.)

Discussion and Decision

Motion for Appointment of Counsel

[5] Jenkins asserts the PCR court erred by denying his July 20, 2015, motion for

appointment of counsel. Neither the Sixth Amendment of the United States

Constitution nor Article 1, Section 13 of the Indiana Constitution guarantee the

right to counsel in post-conviction proceedings because such proceedings are

not “criminal.” Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). Indiana

PCR Rule 1(9)(a) states:

Upon receiving a copy of the petition, including the affidavit of

indigency, from the clerk of the court, the Public Defender may

represent any petitioner committed to the Indiana Department of

Correction in all proceedings under this Rule, including appeal, if

the Public Defender determines the proceedings are meritorious

and in the interests of justice. The Public Defender may refuse

representation in any case where the conviction or sentence being

challenged has no present penal consequences. Petitioner retains

the right to employ his own counsel or to proceed pro se, but the

court is not required to appoint counsel for a petitioner other

than the Public Defender.

[6] In this case, the court notified the Public Defender of Jenkins’ petition, and the

Public Defender filed a notice of non-representation. The Public Defender was

not required to represent Jenkins. See Rule 1(9)(a) (“Public Defender may

represent”). Nor was the court required to appoint other counsel for Jenkins.

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See id. (“court is not required to appoint counsel for a petitioner other than the

Public Defender”); see also Rule 1(9)(c) (“Petitioner retains the right to proceed

pro se, in forma pauperis if indigent, after counsel withdraws.”). We

accordingly cannot find any error in the court’s denial of the motion for

appointment of counsel Jenkins filed after the Public Defender had declined to

represent him.

Motion to Continue

[7] Jenkins argues the PCR court erred in denying his motion for continuance of

the evidentiary hearing.

Typically, a fact-finding court is given discretion to act on an

issue when it is in a better position than an appellate court to

evaluate the factual context surrounding the issue. We will

second-guess the fact-finding court only when it responds to that

factual context in an unreasonable manner. Prof. Stroud has

provided the following description of this standard of review:

Abuse of discretion review, like all mixed question review,

consists of an evaluation of facts in relation to legal

formulae. In the final analysis, the reviewing court is

concerned with reasonableness of the action in light of the

record.

Therefore, a trial court’s exercise of discretion should be upset

only when the court reached an erroneous conclusion and

judgment, one clearly against the logic and effect of the facts and

circumstances before the court or the reasonable, probable and

actual deductions to be drawn therefrom.

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Tapia v. State, 753 N.E.2d 581, 585 (Ind. 2001) (internal citations and

quotations omitted).

[8] Jenkins asserts he filed the motion for continuance because of his “struggles and

difficulties . . . obtaining needed documentation and access to the law library.”

(Appellant’s Br. at 12.) He claims the court erred by holding “the hearing,

knowing [Jenkins] was not ready.” (Id.) However, “[c]ontinuances for

additional time to prepare for trial are generally disfavored, and courts should

grant such motions only where good cause is shown and such a continuance is

in the interest of justice.” Hyppolite v. State, 774 N.E.2d 584, 595 (Ind. Ct. App.

2002), trans. denied.

[9] Jenkins filed his petition for PCR on August 22, 2014. On September 3, 2014,

the PCR court scheduled the hearing on this petition for August 11, 2015. By

mid-October 2014, Jenkins knew the Public Defender would not represent him.

Thus, Jenkins had approximately ten months to gather documentation for the

hearing, and we cannot hold the court abused its discretion when it denied

Jenkins’ motion for continuance. See, e.g., id. at 597 (finding no abuse of

discretion in denial of continuance when petitioner did not demonstrate he

could have discovered necessary evidence if continuance was granted).

Exhaustion of Administrative Remedies

[10] Jenkins alleges the PCR court erred in finding Jenkins failed to exhaust his

administrative remedies. Our legislature has provided a mechanism by which

incarcerated persons can earn credit against a sentence for completion of

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educational programs. See Ind. Code § 35-50-6-3.3. Following sentencing,

when an incarcerated prisoner believes he has completed a program and

qualifies for credit, “application for educational credit time must be made to

and the initial ruling thereon made by the DOC.” Sander v. State, 816 N.E.2d

75, 78 (Ind. Ct. App. 2004). We have so held because “the DOC alone is able

to assess whether the applicant has met the behavior criterion set out in” the

statute. Id.

[11] When a petition for educational credit time is denied, the prisoner “must

exhaust his administrative remedies within the DOC before appealing to a court

because determinations altering credit time are the responsibility of the DOC.”

Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct. App. 2008). Furthermore, when

appealing the DOC’s decision to a court, the petitioner must be able to

demonstrate “what the relevant DOC administrative grievance procedures are,

and then that he has exhausted them at all levels.” Young v. State, 888 N.E.2d

1255, 1257 (Ind. 2008).

[12] Jenkins made no mention of exhaustion of administrative remedies in his PCR

petition. At the hearing, Jenkins asserted he provided the evidence

demonstrating exhaustion in response to the State’s motion to dismiss. Jenkins

has directed us to nine pages of his Appendix, which he claims demonstrate

exhaustion of administrative remedies. However, none of those memoranda

and notes requesting copies of documentation from the DOC demonstrate the

steps he needed to take to exhaust administrative remedies. Thus, Jenkins has

not sustained his burden of showing what the appeal procedures were following

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a denial of credit time or that he exhausted them. We cannot say the PCR

court erred in finding Jenkins failed to exhaust his administrative remedies. 1

See, e.g., Members v. State, 851 N.E.2d 979, 983 (Ind. Ct. App. 2006) (dismissing

appeal because PCR court had not had authority to review petition for

educational credit time when petitioner had not exhausted administrative

remedies).

Conclusion

[13] The PCR court did not abuse its discretion in denying Jenkins’ motion to

continue the evidentiary hearing or his motion to appoint counsel. Further,

Jenkins has not demonstrated the PCR court erred in determining Jenkins had

not exhausted his administrative remedies. We accordingly affirm the dismissal

of Jenkins’ petition.

[14] Affirmed.

Brown, J., and Pyle, J., concur.

1

We note the post-conviction court entered two final orders. The first dismissed Jenkins’ petition for failure

to exhaust administrative remedies, and the second denied his petition on the merits. If, however, Jenkins

had not exhausted his administrative remedies, then the post-conviction court did not have authority to

review the merits of his petition. See, e.g., Burks-Bey v. State, 903 N.E.2d 1041, 1043 (Ind. Ct. App. 2009) (“If

an offender exhausts all of his administrative remedies through the DOC . . . , Indiana’s courts then have

subject matter jurisdiction over a request for educational credit time.”). We, accordingly, decline to consider

the order denying Jenkins’ petition on the merits.

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