Currie v. State

• Decision Date: 09 August 2017
• Docket Number: Court of Appeals Case No. 01A02-1609-PC-2077.
• Parties: Todd Alan CURRIE, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

82 N.E.3d 285

Todd Alan CURRIE, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 01A02-1609-PC-2077.

Court of Appeals of Indiana.

August 9, 2017

Appellant Pro Se : Todd A. Currie, Jr., New Castle, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] Todd Alan Currie, Jr., pro se, appeals the dismissal of his petition for post-conviction relief, raising one issue for our review: whether the post-conviction court erred in treating his petition as a successive petition for post-conviction relief and therefore erred in dismissing his petition with prejudice. Concluding the post-conviction court erred in treating Currie's petition as an improperly filed successive petition, we reverse and remand.

Facts and Procedural History

[2] On November 2, 2006, Currie entered a plea of guilty to two counts of Class B felony child molesting in Adams Circuit Court. On January 22, 2007, Currie was sentenced to twenty years on each count, to be served concurrently, with ten years of each sentence suspended.¹

[3] In 2010, Currie filed in Adams Circuit Court a pro se petition seeking post-conviction relief ("2010 PCR"). The 2010 PCR was later withdrawn at Currie's request without prejudice. Currie alleges he was released from the Indiana Department of Correction in June 2012 and placed on probation and parole. He began his probation in Adams County, but his probation was transferred to another county in January 2014. In November 2014, the Adams County probation department filed a notice of probation violation. The Adams Circuit Court revoked Currie's probation and ordered him to serve the ten years previously suspended from his sentence.

[4] In January 2016, Currie filed in Adams Circuit Court a pro se motion for relief from judgment/petition for post-conviction relief ("2016 PCR"). Currie alleges his 2016 PCR raised issues related to ineffective assistance of counsel, whether Adams County could revoke his probation when his probation had been transferred to another county, and whether he could be placed simultaneously on probation and parole.²

[5] On April 28, 2016, Currie filed in Henry Circuit Court a pro se complaint for writ of habeas corpus alleging his incarceration was illegal because neither his plea agreement nor the trial court at his sentencing hearing referred to a period of mandatory parole.³ The State moved to have Currie's complaint treated as a petition for post-conviction relief and transferred to Adams Circuit Court pursuant to Post-Conviction Rule 1(1)(c). Currie responded to the State's motion by agreeing the matter should be transferred to the sentencing court, noting he had a petition for post-conviction relief already pending there, and requesting the case be transferred to Adams Circuit Court to be docketed under the existing 2016 PCR cause number. The Henry Circuit Court transferred the complaint to Adams Circuit Court to be re-filed as a petition for post-conviction relief. The Adams Circuit Court docketed the case on April 29, 2016, under a new cause number ("Current PCR"). On the same day, the post-conviction court issued the following order in the Current PCR:

[Currie] has previously filed a Petition for Post-Conviction Relief [in 2010 and 2016].

Pursuant to Indiana Post-Conviction Rule 1(12), [Currie] must seek permission to file a successive petition for post-conviction relief by filing a Successive Post-Conviction Rule 1 Petition Form and the proposed successive petition for post-conviction relief with the Clerk of the Court for the Indiana Court of Appeals, which [Currie] has not done.

As [Currie] has not complied with the procedures found in Indiana Post-Conviction Rule 1(12), this Court should dismiss this successive petition for post-conviction relief.

The Court now dismisses this cause with prejudice.

Appellant's Appendix, Volume 2 at 12. Currie filed a motion to correct error and a motion for the post-conviction court to take judicial notice of the records from the 2010 and 2016 PCRs. The post-conviction court took no action on Currie's motions. Currie now appeals.

Discussion and Decision

[6] Currie acknowledges the Henry Circuit Court correctly transferred his Current PCR to Adams Circuit Court, because the allegations of his petition do not entitle him to immediate release. See id. at 43; see also Ind. Post-Conviction Rule 1(1)(c) ; Martin v. State , 901 N.E.2d 645, 647 (Ind. Ct. App. 2009) (holding that petitioner's habeas corpus petition challenging the validity of his convictions and sentence was required to be transferred from the county where he was incarcerated to the court where he was convicted and sentenced and was to be treated as a petition for post-conviction relief). He argues, however, that upon accepting the transfer, the post-conviction court erred in applying Post-Conviction Rule 1(12) to the Current PCR and dismissing it on the basis that it is an unauthorized successive petition. In the alternative, he argues the post-conviction court erred in dismissing his Current PCR with prejudice.

[7] If a petitioner has never sought post-conviction relief in the past, he or she must follow the procedures outlined in Post-Conviction Rule 1(1). If the petitioner has sought post-conviction relief before, however, he or she must follow the procedure found in Post-Conviction Rule 1(12) for successive petitions. Post-Conviction Rule 1(12) provides a petitioner must request and receive permission from the appellate court to pursue a successive petition for relief. See Love v. State , 52 N.E.3d 937, 939-40 (Ind. Ct. App. 2016). When a court encounters an improper successive petition for post-conviction relief, it should dismiss the action. Beech v. State , 702 N.E.2d 1132, 1137 (Ind. Ct. App. 1998). Here, the post-conviction court determined Currie's Current PCR was a successive petition because he previously filed the 2010 and 2016 PCRs. Currie asserts the post-conviction court erred as a matter of law in interpreting Post-Conviction Rule 1(12) to require dismissal of his Current PCR because no final judgment on the merits of any post-conviction petition has been entered and therefore the Current PCR is not a successive petition requiring this court's permission to file. Interpretation of our supreme court's rules, including the Rules of Procedure for Post-Conviction Remedies, is a purely legal question we review de novo. State v. Holtsclaw , 977 N.E.2d 348, 349 (Ind. 2012).

[8] A post-conviction petition is not a second or successive petition requiring leave of court unless and until a first petition has been litigated to conclusion. See Williams v. State , 808 N.E.2d 652, 659 (Ind. 2004) (noting Post-Conviction Rule 1(12) allows a convicted person "who has already completed one state post-conviction relief proceeding to request a successive opportunity for post-conviction relief") (emphasis added); see also P-C.R. 1 Appendix (Instructions to Form for Successive Post-Conviction Relief Rule 1 Petitions stating "If you have previously filed a Petition for Post-Conviction Relief directed to this conviction ... and the earlier petition was decided on the merits , you must fill out this form and file it along with your petition.") (emphasis added); cf. Lacey v. State , 829 N.E.2d 518, 519 (Ind. 2005) (holding petitioner's request for DNA testing, treated as a petition for post-conviction relief pursuant to Post-Conviction Rule 1(1)(d) and filed while a petition for post-conviction relief was pending, was not a second or successive petition requiring authorization because he had not yet litigated his first petition to conclusion).

[9] "At any time prior to entry of judgment the court may grant leave to withdraw the petition." P-C.R. 1(4)(c). Currie's 2010 PCR was withdrawn without prejudice and never decided on the merits; therefore, it is not a "completed" post-conviction proceeding that would render the Current PCR a successive petition. See Long v. State , 679 N.E.2d 981, 983 (Ind. Ct. App. 1997) ("Where an action is voluntarily dismissed without prejudice the situation is as though no action had ever been brought[;]" therefore, where petitioner's first petition was dismissed without prejudice, he had "the right to refile his petition for post-conviction relief, and it should be treated as a new filing"); cf. Beech , 702 N.E.2d at 1134 (noting on petitioner's request to "reinstate" an earlier successive petition for post-conviction relief that because the earlier petition had been dismissed, there was nothing to "reinstate"). The post-conviction court therefore erred to the extent it relied on the 2010 PCR as a reason to dismiss the Current PCR.

[10] As for the 2016 PCR, Currie asserts it was still pending when the post-conviction court entered its order dismissing the Current PCR for failure to follow Rule 1(12). See Appellant's Brief at 10. The State contends the record does not clearly support this assertion. Both parties direct us to the Chronological Case Summary ("CCS") for the 2016 PCR, which shows Currie filed a pro se motion for relief/petition for post-conviction relief on January 28, 2016; the State filed its answer on February 2, 2016; and an "Order Re: Pro-Se Request denying Motion" was entered on April 4, 2016. Appellant's App., Vol. 2 at 62-63. The CCS reflects the "disposition date" for the 2016 PCR is April 4, 2016, yet additional entries have been made on the CCS since that date, including "Court's Entry and Order Re: Pro Se Request" entries on August 9, 18, and 23, and September 19, 2016. Id. at 62, 64-65. Therefore, the document the parties cite in support of their respective positions is inconclusive at best. And although Currie has not provided any other documents associated with the 2016 PCR when it is his obligation to provide a record sufficient for us to decide the issues he presents, Perez-Grahovac v....