Willet v. State, No. 19A-CR-2699, __ N.E.3d __ (Ind. Ct. App., Jul. 31, 2020).

Robb, J.

Shawn Willet, pro se, appeals from the denial of his Motion to Dismiss Sentence Time Served alleging he has served his entire sentence and was being unlawfully detained by the Indiana Department of Correction (“DOC”). Willet raises one issue for our review, which we revise and restate as whether the trial court abused its discretion in denying Willet’s motion. Concluding the trial court did not abuse its discretion, we affirm.

Willet filed a Motion to Dismiss Sentence Time Served, but the State argues that “[a] better reading of the motion is that it is a petition for post-conviction relief [pursuant to Post-Conviction Rule 1(1)(a)(5) (2015)1 ] alleging that Willet’s sentence has expired so revocation of his parole was unlawful.” Br. of Appellee at 7. Although the State makes a compelling argument, we disagree and construe Willet’s motion as a petition for writ of habeas corpus.

Indiana Code section 34-25.5-1-1 provides, “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.” The purpose of a writ of habeas corpus is to determine the lawfulness of the defendant’s detention; it cannot be used to attack a conviction or sentence. Love v. State, 22 N.E.3d 663, 664 (Ind. Ct. App. 2014), trans. denied. A defendant is entitled to a writ of habeas corpus if he or she is unlawfully incarcerated and is entitled to immediate release. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008). On the other hand, when challenging the validity of a conviction or sentence, a petitioner must file a petition for post-conviction relief in the court of conviction. Id. at 743.

Here, Willet does not challenge the validity of his convictions or his fifteen-year sentence. Instead, he alleges he is entitled to immediate discharge because he has fully served his sentence. See Brief of the Appellant at 5-6. Therefore, we treat his motion as a petition for a writ of habeas corpus and evaluate it as such.

The crux of Willet’s argument is that, with his executed time and earned credit time, he has served over twenty years on a fifteen-year sentence. See Br. of the Appellant at 5 (statement of the facts). And therefore, he contends he is entitled to be released immediately. We disagree.

When a person imprisoned for a felony completes his fixed term of imprisonment, less the credit time he has earned with respect to that term, he shall be released on parole for no more than twenty-four months. Ind. Code § 35-50-6-1(a)(1). A person, such as Willet, who is a sex offender is released on parole for up to ten years. Ind. Code § 35-50-6-1(d). If parole is revoked, the person shall be imprisoned for all or part of the remainder of his fixed term; however, he shall again be released on parole when he completes that remainder, less the credit time earned since revocation. Ind. Code § 35-50-6- 1(c).

Applying the above here, the record shows that on March 25, 2010, Willet was sentenced to serve fifteen years, with 791 days of jail time credit. Thus, Willet effectively began his sentence on January 23, 2008; fifteen years from that date is January 23, 2023. Again, credit time simply shortens a fixed executed sentence for release to parole, it does not reduce Willet’s fifteen-year sentence itself, which does not end until January 23, 2023. See Miller, 655 N.E.2d at 48 n.3. The record reveals on its face that Willet was not entitled to immediate release because his sentence has not expired. Therefore, the trial court properly denied his petition summarily.

The trial court did not abuse its discretion in denying Willet’s petition for writ of habeas corpus because his sentence has not expired. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

May, J., concurs.

Vaidik, J., concurs in result with opinion.

Vaidik, J.

I respectfully disagree with the majority’s conclusion that Willet’s motion should be treated as an application for a writ of habeas corpus rather than as a petition for post-conviction relief. An inmate who believes their sentence has expired has two options. First, they can file a petition for post-conviction relief in the county where they were convicted and sentenced. See Ind. Post-Conviction Rule 1(1)(a)(5) (providing that a person who claims “that his sentence has expired” can “institute at any time a proceeding under this Rule to secure relief”); P-C.R. 1(2) (providing that “[a] person who claims relief under this Rule” must generally “file a verified petition with the clerk of the court in which the conviction took place”). In the alternative, they can file an application for a writ of habeas corpus in the county where they are incarcerated. See Ind. Code § 34-25.5-2-1 (providing that a person who claims that they are being illegally held can file an application for a writ of habeas corpus); I.C. § 34-25.5-2-2(a)(1) (providing that “[w]rits of habeas corpus may be granted by: (1) the circuit or superior courts of the county in which the person applying for the writ may be restrained of his or her liberty, or by the judges of those courts”). See also Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 981 (Ind. Ct. App. 2001) (“Jurisdiction over writs of habeas corpus is traditionally with the court in the county where the petitioner is incarcerated, Ind. Code § 34-25.5-2-2 (1998), whereas petitions for postconviction relief must be filed in the conviction court, Ind. Post-Conviction Rule 1(2).”), superseded by statute on other grounds as stated in Paul v. State, 888 N.E.2d 818 (Ind. Ct. App. 2008), trans. denied. Here, Willet filed his motion in the county where he was convicted and sentenced (Elkhart County), rather than in the county where he was incarcerated (Henry County). As such, the motion should be treated as a petition for post-conviction relief.

The majority also states, “Construing Willet’s motion as a petition for postconviction relief is problematic because the proper procedure in post-conviction proceedings was not followed in this case.” Slip op. n.2. While failure to follow the proper post-conviction procedures might be a reason to remand for further proceedings, it is not a reason to treat Willet’s motion as something other than a petition for post-conviction relief. But I believe the trial court’s denial of Willet’s motion was consistent with the post-conviction rules. Post-Conviction Rule 1(4)(f) provides, “If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.” Willet’s motion conclusively shows that his sentence has not expired and that he is entitled to no relief. Therefore, the motion was properly denied, and I concur in the result reached by the majority.

 

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