Ritchie Hodges v. State of Indiana
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Nov 05 2013, 5:45 am FOR PUBLICATION ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: MARK SMALL Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA RITCHIE HODGES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 06A01-1210-CR-466 APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Rebecca S. McClure, Judge Cause No. 06D02-1103-FD-206 November 5, 2013 OPINION - FOR PUBLICATION ROBB, Chief Judge Ritchie Hodges appeals the post-conviction court s summary dismissal of his petition for post-conviction relief, contending the court erred in finding that post-conviction review was not available for his claim. The State, although having originally sought the dismissal, now agrees that Hodges s claim is reviewable in post-conviction proceedings. Concluding that Hodges and the State are correct, we reverse the dismissal and remand for a hearing on Hodges s post-conviction petition. Following a guilty plea, Hodges was convicted of three counts of possession of child pornography and one count of voyeurism, all Class D felonies. He was ordered to serve a six-year sentence with a four-year direct commitment to community corrections and the final two years suspended to probation. After a hearing in September 2012, Hodges s community corrections placement was revoked and he was ordered to serve the remainder of his executed sentence at the Indiana Department of Correction ( DOC ). In a separate proceeding at which the September 2012 hearing was incorporated, Hodges s probation was also revoked and his probationary period was ordered served as executed time. Hodges s appeals of both revocations were consolidated by this court. At Hodges s request, this court subsequently dismissed his appeal without prejudice to allow him to pursue post-conviction relief. Hodges filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel at his community corrections revocation hearing, and therefore, his placement was unlawfully revoked. See Ind. Post-Conviction Rule 1(1)(a)(5). The State filed a motion to dismiss, alleging the post-conviction rules did not provide Hodges an 2 avenue for relief because his petition was a collateral attack on the change of his placement from community corrections to the DOC, rather than on his conviction or sentence. See PC.R. 1(1)(a)(6). Following a hearing on the motion to dismiss, the post-conviction court found that a sole claim of ineffective assistance of counsel at a change of placement hearing does not state a claim upon which relief can be granted under Post Conviction Rule 1(a)(6). Appellant s Appendix at 22. The post-conviction court therefore granted the State s motion to dismiss and vacated the hearing set on the post-conviction petition. Hodges appeals the dismissal, contending, as he did in the post-conviction court, that Post-Conviction Rule 1(1)(a)(5) entitles him to pursue relief. We agree, as the State also does on appeal, that subsection (5) allows Hodges to pursue post-conviction relief.1 Post-Conviction Rule 1 provides that [a]ny person who has been convicted of, or sentenced for, a crime . . ., and who claims: *** (5) that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; *** may institute at any time a proceeding under this Rule to secure relief. As the State notes, placement in a community corrections program is a form of conditional release in that the defendant is conditionally released from serving his sentence in the [DOC] if he obeys the rules of the community corrections program. Brief of Appellee at 6. See also Jones v. State, 976 N.E.2d 1271, 1280 (Ind. Ct. App. 2012) ( As with probation, placement in a community corrections program is a matter of grace and a conditional liberty 3 that is a favor, not a right. ) (emphasis added) (internal quotation marks omitted), trans. denied. Moreover, a person serving a community corrections placement is entitled to certain due process protections before the placement is revoked, including the right to counsel. See Ind. Code ยง 35-38-2-3(f) ( The person [alleged to have violated probation] is entitled to confrontation, cross-examination, and representation by counsel. ); Million v. State, 646 N.E.2d 998, 1002-03 (Ind. Ct. App. 1995) (holding the due process protections required for probation revocations are also required for community corrections placement revocations). Thus, Hodges s allegation that he received ineffective assistance of counsel at the hearing to revoke his community corrections placement is a claim that his conditional release was unlawfully revoked. The trial court s order dismissing his petition for post-conviction relief on the grounds that the post-conviction rules do not allow his claim is therefore reversed, and this case is remanded to the trial court for further proceedings on the merits of Hodges s petition for post-conviction relief. Reversed and remanded. RILEY, J., and KIRSCH, J., concur. 1 The State of course does not concede that Hodges s post-conviction claim is meritorious. 4
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