Court of Appeals of Indiana | Memorandum Decision 33A01

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### MEMORANDUM DECISION 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.
A PPELLANT P RO S E Paul J. Pacheco New Castle Correctional Facility New Castle, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Paul J. Pacheco , Appellant

- Petitioner , v. 

### Keith Butts, Superintendent of the New Castle Correctional Facility , Appellee

- Respondent July 18, 2017 Court of Appeals Ca se No. 33A01

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Crone , Judge .Court of Appeals of Indiana | Memorandum Decision 33A01

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

a ccrued 1 246 of credit for actual time served , 1 246 days of good time credit as a Class I offender , and 215 days of educational credit time. 1 In sum, Pacheco earned 1 461 days of credit time in addition to his credit for actual time served. Accordingly, h e was released on parole on Marc h 3, 2016, after serving only 1 246 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 1 516 days remaining on his sentence . His current projected releas e date is now September 6, 2018 ,

1 For defendants who committed their offense before July 1, 2014, Indiana Code Section 35

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- 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 con fined awaiting trial or sentencing.”Court of Appeals of Indiana | Memorandum Decision 33A01

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based on the assumption that he will serv e 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 immediat e 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 2 922 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

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[5] Butts filed a motion for summary disposition, stating that the petition should be treated as a petition for post conviction 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 t hat 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 summ ary disposition. Accordingly, t he trial court treated the petition as one for post co nviction relief and entered its order summarily dismissing the petition on February 7, 2017. The court conclud ed 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, wasCourt of Appeals of Indiana | Memorandum Decision 33A01

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

### Discussion and Decis ion
[6] We begin by noting that a lthough 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 u nder the post conviction rules. See Samuels v. State , 849 N.E.2d 689, 691 (Ind. Ct. App. 2006) , trans. denied ; see also Ind. Code § 34

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- 1 ( “E very person whose liberty is restrained, under any pretense whatever, may prosecute a writ of habeas corpus t o inquire into the cause of the restraint, and shall be delivered from the restraint if the restraint is illegal.”); Ind. Post

- Conviction Ru le 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 petiti on, t he trial court treated the petition as one for post conviction relief and entered a summary disposition

. See Ind. Post

- Conviction Rule 1(4)(g). Pacheco does not challenge the trial court’s decision to constr ue his petition as one for post conviction relief. Where as here, neither party claims that the trial court erred by treating a writ of habeas corpus as a pet ition for post conviction 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

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[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 [,] sum mary 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] Ind iana Code Section 35

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- 1(d) provid es in relevant p art, “[w]hen a sex offender (as defined in IC 11

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- 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 d ate 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

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- 1(b). An offender “whose paro le is revoked shall be imprisoned for all or part of the remainder of the person’ s fixed term.” Ind. Code § 35

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- 1(c)

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[9] In asserting his entitlement to imm ediate 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 subtractedCourt of Appeals of Indiana | Memorandum Decision 33A01

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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 discharg e after service of a fixed
term. Boyd v. Broglin , 519 N.E.2d 541, 542 (Ind. 1988). In o ther 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

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[10] Contrary to Pacheco’s assertion, he was not entitled to immediate discharge as of March 3, 2016, rath er than being released to parole. Pacheco ’s credit time was applied to permit him to be release d on parole after serving only half his eight

- year sentence. When his parole was revoked, he was properly asses se d the amount of the fixed term which remained on his sentence , or 1 516 days. 2 His new projected release to parole date was calculated as September 6, 2018, which presumes that , as a Class I offen der, he will serve only half that remaining time due to ne wly 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 fir st place because he is a convicted sex offender. To support his argument, Pacheco relies on Indiana Code Section 11

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- 2(b)(2) , which provides that sex offenders are

2 Pache co had accrued time served of 1406 days (1 246 days served prior to his release on parole and 160 days served on parole).Court of Appeals of Indiana | Memorandum Decision 33A01

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not eligible to participate in certain minimum security release programs provided by the IDOC. Pacheco appear s 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

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[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 righ t 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) , t rans . denied

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