Paul J. Pacheco v. Keith Butts, Superintendent of the New Castle Correctional Facility (mem .dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 18 2017, 9:35 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Paul J. Pacheco Curtis T. Hill, Jr. New Castle Correctional Facility Attorney General of Indiana New Castle, Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paul J. Pacheco, July 18, 2017 Appellant-Petitioner, Court of Appeals Case No. 33A01-1702-MI-395 v. Appeal from the Henry Circuit Court Keith Butts, Superintendent of The Honorable Kit C. Dean Crane, the New Castle Correctional Judge Facility, Trial Court Cause No. Appellee-Respondent 33C02-1611-MI-115

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017 Page 1 of 7

Case Summary [1] Paul J. Pacheco, pro se, appeals the trial court’s summary dismissal of his

petition for writ of habeas corpus. Finding dismissal proper as a matter of law,

we affirm.

Facts and Procedural History [2] On December 17, 2013, Pacheco was convicted of child molesting and

sentenced to eight years’ imprisonment, or 2922 days. While imprisoned, he

accrued 1246 of credit for actual time served, 1246 days of good time credit as a

Class I offender, and 215 days of educational credit time.1 In sum, Pacheco

earned 1461 days of credit time in addition to his credit for actual time served.

Accordingly, he was released on parole on March 3, 2016, after serving only

1246 days of his sentence. [3] After 160 days on parole, on August 10, 2016, Pacheco was arrested on a

warrant for violating his parole. On September 15, 2016, Pacheco was found

guilty of violating his parole and ordered to serve the remainder of his sentence

in prison. At the time Pacheco was arrested, he had 1516 days remaining on

his sentence. His current projected release date is now September 6, 2018,

1 For defendants who committed their offense before July 1, 2014, Indiana Code Section 35-50-6-3(b) provides in relevant part that “[a] person assigned to Class I earns one (1) day of good time credit for each day the person is imprisoned for a crime or confined awaiting trial or sentencing.”

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based on the assumption that he will serve only half the remaining time on his

sentence. [4] On November 16, 2016, Pacheco filed a pro se petition for writ of habeas

corpus in the Henry Circuit Court challenging the calculation of his credit time

and requesting immediate discharge from incarceration. Pacheco named Keith

Butts, the Superintendent of the New Castle Correctional Facility, as the

respondent. Specifically, Pacheco claimed that his actual time served plus his

good time credit and educational credit totaled 2922 days, which is the full term

of his eight-year sentence. Thus, he argued, he had completed service of his

sentence and was entitled to immediate discharge as of March 3, 2016. He

further argued that it was unlawful for the State to place him on parole at that

time due to his status as a sex offender. [5] Butts filed a motion for summary disposition, stating that the petition should be

treated as a petition for postconviction relief and summarily disposed of, or in

the alternative, that the trial court should dismiss the petition pursuant to

Indiana Trial Rule 12(B)(6) without a hearing. Butts argued that credit time is

used only to calculate an offender’s early release on parole and that it does not

reduce the fixed term of imprisonment imposed by the trial court. Pacheco

responded with a cross-motion for summary disposition. Accordingly, the trial

court treated the petition as one for postconviction relief and entered its order

summarily dismissing the petition on February 7, 2017. The court concluded

that Pacheco had already received the benefit of his credit time when he was

released on parole, that his new release date of September 6, 2018, was

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accurate, and that he was not entitled to immediate discharge. This appeal

ensued.

Discussion and Decision [6] We begin by noting that although Pacheco called his petition a writ of habeas

corpus, it appears that because his petition alleged that his credit time entitled

him to immediate release from incarceration, he could have alternatively filed

for relief under the postconviction rules. See Samuels v. State, 849 N.E.2d 689,

691 (Ind. Ct. App. 2006), trans. denied; see also Ind. Code § 34-25.5-1-1 (“Every

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.”); Ind. Post-Conviction

Rule 1 (1)(a)(5) (providing that a person “who has been convicted of, or

sentenced for, a crime … who claims that his sentence has expired, his

probation, parole or conditional release unlawfully revoked, or he is otherwise

unlawfully held in custody or restraint … may institute at any time a proceeding

under this Rule to secure relief.”). In considering Pacheco’s petition, the trial

court treated the petition as one for postconviction relief and entered a

summary disposition. See Ind. Post-Conviction Rule 1(4)(g). Pacheco does not

challenge the trial court’s decision to construe his petition as one for

postconviction relief. Where as here, neither party claims that the trial court

erred by treating a writ of habeas corpus as a petition for postconviction relief,

we will proceed to address the merits of the case. Mills v. State, 840 N.E.2d 354,

357 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017 Page 4 of 7 [7] Our supreme court has explained our standard of review as follows:

An appellate court reviews the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a motion for summary judgment. Thus[,] summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact.

Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). [8] Indiana Code Section 35-50-6-1(d) provides in relevant part, “[w]hen a sex

offender (as defined in IC 11-8-8-4.5) completes the sex offender’s fixed term of

imprisonment, less credit time earned with respect to that term, the sex offender

shall be placed on parole for not more than ten (10) years.” An offender

“released on parole remains on parole from the date of release until the person’s

fixed term expires, unless the person’s parole is revoked or the person is

discharged from that term by the parole board.” Ind. Code § 35-50-6-1(b). An

offender “whose parole is revoked shall be imprisoned for all or part of the

remainder of the person’s fixed term.” Ind. Code § 35-50-6-1(c). [9] In asserting his entitlement to immediate discharge, Pacheco argued that his

accrued time (1246 days), good time credit (1461 days), and educational credit

(215 days) equaled 2922 days, the entirety of his fixed term of imprisonment.

Thus, he claims that he was entitled to immediate discharge as of March 3,

2016, rather than release on parole because he “had no time remaining on his

sentence.” Reply Br. at 4. He is mistaken. It is well settled that credit time

does not reduce a defendant’s sentence; instead, all credit time is subtracted Court of Appeals of Indiana | Memorandum Decision 33A01-1702-MI-395 | July 18, 2017 Page 5 of 7

from the defendant’s release date. Randolph v. Buss, 956 N.E.2d 38, 41 (Ind. Ct.

App. 2011) (citing Miller v. Walker, 655 N.E.2d 47, 48 n.3 (Ind. 1995)), trans.

denied. Release on parole is distinguished from discharge after service of a fixed

term. Boyd v. Broglin, 519 N.E.2d 541, 542 (Ind. 1988). In other words, credit

time is earned toward release on parole, and it does not diminish the fixed term

imposed by the sentencing court or affect the date on which a felony offender

will be discharged. Id. [10] Contrary to Pacheco’s assertion, he was not entitled to immediate discharge as

of March 3, 2016, rather than being released to parole. Pacheco’s credit time

was applied to permit him to be released on parole after serving only half his

eight-year sentence. When his parole was revoked, he was properly assessed

the amount of the fixed term which remained on his sentence, or 1516 days.2

His new projected release to parole date was calculated as September 6, 2018,

which presumes that, as a Class I offender, he will serve only half that

remaining time due to newly earned credit time. We conclude that Pacheco

was not and is not entitled to immediate discharge. [11] Pacheco further maintains that the Indiana Department of Correction

(“IDOC”) was prohibited from releasing him on parole in the first place

because he is a convicted sex offender. To support his argument, Pacheco relies

on Indiana Code Section 11-10-8-2(b)(2), which provides that sex offenders are

2 Pacheco had accrued time served of 1406 days (1246 days served prior to his release on parole and 160 days served on parole).

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not eligible to participate in certain minimum security release programs

provided by the IDOC. Pacheco appears to conflate parole with certain

correctional services and programs provided to offenders who are still in the

custody of the IDOC. Pacheco directs us to no relevant statutory authority, as

there is none, that prohibited him from being released on parole even though he

is a convicted sex offender. We affirm the trial court’s order summarily

dismissing Pacheco’s petition.3 [12] Affirmed.

Baker, J., and Barnes, J., concur.

3 On June 19, 2017, Pacheco submitted “Additional Information” to this Court in an attempt to raise an additional issue that was never presented to the trial court nor addressed in his appellant’s brief or reply brief. Thus, we decline to address the issue. See Chupp v. State, 830 N.E.2d 119, 125 (Ind. Ct. App. 2005) (defendant forfeited right to raise additional issue that was available but not addressed in appellant’s brief or reply brief); see also Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct. App. 2002) (failure to raise issue before trial court waives right to raise issue on appeal), trans. denied.

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