Derrick Love v. State of Indiana (NFP)

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FILED 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. Jan 22 2010, 8:44 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: ANTHONY C. LAWRENCE Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA DERRICK LOVE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 48A04-0905-CR-300 APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-9911-CF-338 January 22, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge Derrick Love appeals from an order denying his request for education credit time. We dismiss. On February 17, 2000, Love was convicted of dealing in cocaine, a class A felony, and possession of marijuana, a class A misdemeanor. He was sentenced to an aggregate sentence of fifty years. After appeal, Love s sentence was reduced to thirty years. On February 5, 2007, Love filed a petition to modify his sentence. That motion was granted and Love was placed in a work-release facility for the remainder of his sentence. On August 28, 2007, Love filed another motion for sentence modification, requesting release from work release. That motion was granted and Love was placed on ten years probation. OnApril 23, 2009, the probation department filed a notice of probation violation. At a May 11, 2009 hearing, Love admitted he had violated the conditions of probation by committing domestic battery and failing to pay probation fees. The trial court revoked probation and ordered him to serve the remainder of his sentence at the DOC. Love was awarded credit time pursuant to the abstract of judgment reflecting the revocation of probation, which specified 11/20/99 to 9/24/07 (JAIL/DOC/WORK RELEASE); 4/19/09 TO PRESENT (JAIL/Madison County Correctional Facility)[.] Appellant s Appendix at 16. Love appeals from the sentence, arguing that the trial court erred in failing to award educational credit time pursuant to Ind. Code Ann. § 35-50-6-3.3 (West, PREMISE through 2009 1st Regular Sess.), which he claims in his case would authorize credit time for earning his GED and an Associates of Arts degree. Love claims he earned those degrees in 2000 and 2005, respectively, and further claims that the DOC had originally subtracted the appropriate credit time against his projected release 2 date, but such is no longer the case. As we understand it, he contends upon appeal that the trial court should have noted his education credit time on the abstract of judgment, and in any event that the DOC s esoteric and difficult to decipher records no longer reflect the appropriate education credit time. Appellant s Brief at 5. In Robinson v. State, 805 N.E.2d 783, 789 (Ind. 2004), our Supreme Court indicated that a trial court s judgment of conviction must reflect both the amount of time spent by the defendant prior to imposition of sentence and also the amount of credit time earned in accordance with the defendant s credit time class. By inference, the third category of credit time cited in Robinson, i.e., successful completion of specified educational achievements while demonstrating a pattern consistent with rehabilitation, need not be noted on the judgment of conviction. Robinson v. State, 805 N.E.2d 783. In Robinson, the Court stated, [w]hen claims of sentencing errors require consideration of matters outside the face of the sentencing judgment, they are best addressed promptly on direct appeal and thereafter via post-conviction relief proceedings where applicable. Id. at 787. The Court indicated that the direct-appeal route consists of the filing of a statutory motion to correct sentence. See Ind. Code Ann. § 35-38-1-15 (West, PREMISE through 2009 1st Regular Sess.). The Court further indicated that such a motion should ¦ be narrowly confined to claims apparent from the face of the sentencing judgment[.] Robinson v. State, 805 N.E.2d at 787. On the other hand, [c]laims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence. Id. Therefore, inasmuch as the trial court was not required to record 3 educational credit time on the face of the judgment (and thus would not be apparent on the face of the judgment), this error may not be raised on direct appeal. See Robinson v. State, 805 N.E.2d 783. The Supreme Court recently reiterated that all manner of claims of sentencing errors (other than those that do not require consideration of matters outside the face of the sentencing judgment), are addressed via post-conviction relief proceedings. Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008). Perhaps even more to the point, the Court stated, postconviction proceedings are the appropriate procedure for considering properly presented claims for educational credit time. Id. Because Love did not present this claim in the approved form, his appeal must be dismissed. See Young v. State, 888 N.E.2d 1255. Finally, we note that in Young, the Court indicated that a claim such as the one presented in the instant appeal is subject to dismissal on a separate basis. That is, we will not consider the matter unless Love establishes that he exhausted his administrative remedies with respect to the DOC on this matter. See id. Love has not done this. In summary, we reproduce below the penultimate paragraph of Young, which, with only slight alterations, and substituting Love s name for Young s, is equally applicable in the instant case: If [Love] hopes to prevail on his claim after he has properly presented it to the Court via post-conviction procedures, he must present evidence supporting each portion of it with his ¦ petition for post-conviction relief ¦. Here, for example, [Love] must show in the first place what the relevant DOC administrative grievance procedures are, and then that he has exhausted them at all levels. [Love] must also present evidence of his diploma[s] and the credentials of the school[s] that awarded [them]. He must show that he meets each requirement of any necessary statute (for example, I.C. § 35-50-6-3.3). 4 ¦[E]ven if [Love s] claim were properly before a court, the court would not be able to decide it without more information. Id. at 1257. Appeal dismissed. NAJAM, J., and BRADFORD, J., concur. 5

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