Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1787 | September 27, 2017 Page 1 of 8

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.

APPELLANT PRO SE

Robert Jenkins

Bunker Hill, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Kyle Hunter

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert Jenkins,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 27, 2017

Court of Appeals Case No.

49A04-1510-PC-1787

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

Trial Court Cause Nos.

49G01-1408-PC-40662

49G01-1408-PC-40663

May, Judge.
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[1] Robert Jenkins, pro se, appeals the post-conviction court’s dismissal of his 

petition for post-conviction relief (“PCR”). Jenkins raises seven issues, which 

we consolidate, reorder, and restate as:

1) Whether the court erred when it denied Jenkins’ motion to 

appoint counsel; 

2) Whether the court abused its discretion when it failed to grant 

Jenkins’ motion to continue his hearing; and

3) Whether the court erred when it determined Jenkins failed to 

exhaust his administrative remedies.

We affirm.

Facts and Procedural History

[2] Jenkins is presently serving a thirty-year sentence in the Indiana Department of 

Correction (“DOC”) for Class B felony armed robbery. On August 22, 2014, 

Jenkins filed a PCR petition asserting:

The following programs have been completed by Jenkins while 

incarcerated, but he has not received any additional credit time 

for their completion

a) Substance Abuse Phase 1 (2010)

b) Substance Abuse Phase 2 (2010)

c) Substance Abuse Phase 3 (2010)
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d) Thinking For A Change (2009)

e) Therapeutic community stages 1, 2, 3, and 4.

Additionally, Jenkins completed on his own, [sic] a college-level 

study program from Blackstone Paralegal College with a 

Certificate in Paralegal Studies in 2011.

(Appellant’s App. Vol. 2 at 16.) The PCR court set a hearing on Jenkins’ 

petition for August 11, 2015. On September 19, 2014, the State Public 

Defender’s Office filed notice that it would not represent Jenkins in the 

proceeding, and Jenkins thereafter confirmed he wished to proceed pro se. In 

December 2014, the State filed an appearance and answer. 

[3] On July 10, 2015, the State filed a “Motion to Dismiss for Lack of Jurisdiction 

or in the Alternative, Motion for Summary Disposition,” (id. at 24), and a 

memorandum of law in support thereof. On July 17, Jenkins filed a motion to 

continue the evidentiary hearing; on July 20, he filed a motion for appointment 

of counsel; and on July 22, he filed a motion for earned good time credit. On 

July 30, Jenkins filed a response to the State’s motion to dismiss or for 

summary disposition. The PCR court took all the motions under advisement.

[4] On August 11, 2015, the PCR court held the scheduled hearing on Jenkins’ 

PCR petition. On September 16, 2015, the court entered an order denying 

Jenkins’ request for a continuance as moot, an order denying Jenkins’ request 

for counsel, and two final orders: one dismissed Jenkins’ petition for “Failure 
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to Exhaust Administrative Remedies,” (id. at 68-70), and the other denied 

Jenkins’ petition on the merits. (Id. at 71-3.)

Discussion and Decision

Motion for Appointment of Counsel

[5] Jenkins asserts the PCR court erred by denying his July 20, 2015, motion for 

appointment of counsel. Neither the Sixth Amendment of the United States

Constitution nor Article 1, Section 13 of the Indiana Constitution guarantee the 

right to counsel in post-conviction proceedings because such proceedings are 

not “criminal.” Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). Indiana 

PCR Rule 1(9)(a) states:

Upon receiving a copy of the petition, including the affidavit of 

indigency, from the clerk of the court, the Public Defender may 

represent any petitioner committed to the Indiana Department of 

Correction in all proceedings under this Rule, including appeal, if 

the Public Defender determines the proceedings are meritorious 

and in the interests of justice. The Public Defender may refuse 

representation in any case where the conviction or sentence being 

challenged has no present penal consequences. Petitioner retains 

the right to employ his own counsel or to proceed pro se, but the 

court is not required to appoint counsel for a petitioner other 

than the Public Defender.

[6] In this case, the court notified the Public Defender of Jenkins’ petition, and the 

Public Defender filed a notice of non-representation. The Public Defender was

not required to represent Jenkins. See Rule 1(9)(a) (“Public Defender may 

represent”). Nor was the court required to appoint other counsel for Jenkins. 
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See id. (“court is not required to appoint counsel for a petitioner other than the 

Public Defender”); see also Rule 1(9)(c) (“Petitioner retains the right to proceed 

pro se, in forma pauperis if indigent, after counsel withdraws.”). We 

accordingly cannot find any error in the court’s denial of the motion for 

appointment of counsel Jenkins filed after the Public Defender had declined to 

represent him.

Motion to Continue

[7] Jenkins argues the PCR court erred in denying his motion for continuance of 

the evidentiary hearing. 

Typically, a fact-finding court is given discretion to act on an 

issue when it is in a better position than an appellate court to 

evaluate the factual context surrounding the issue. We will 

second-guess the fact-finding court only when it responds to that 

factual context in an unreasonable manner. Prof. Stroud has 

provided the following description of this standard of review:

Abuse of discretion review, like all mixed question review, 

consists of an evaluation of facts in relation to legal 

formulae. In the final analysis, the reviewing court is 

concerned with reasonableness of the action in light of the 

record.

Therefore, a trial court’s exercise of discretion should be upset 

only when the court reached an erroneous conclusion and 

judgment, one clearly against the logic and effect of the facts and 

circumstances before the court or the reasonable, probable and 

actual deductions to be drawn therefrom.
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Tapia v. State, 753 N.E.2d 581, 585 (Ind. 2001) (internal citations and 

quotations omitted). 

[8] Jenkins asserts he filed the motion for continuance because of his “struggles and 

difficulties . . . obtaining needed documentation and access to the law library.” 

(Appellant’s Br. at 12.) He claims the court erred by holding “the hearing, 

knowing [Jenkins] was not ready.” (Id.) However, “[c]ontinuances for 

additional time to prepare for trial are generally disfavored, and courts should 

grant such motions only where good cause is shown and such a continuance is 

in the interest of justice.” Hyppolite v. State, 774 N.E.2d 584, 595 (Ind. Ct. App. 

2002), trans. denied. 

[9] Jenkins filed his petition for PCR on August 22, 2014. On September 3, 2014, 

the PCR court scheduled the hearing on this petition for August 11, 2015. By 

mid-October 2014, Jenkins knew the Public Defender would not represent him. 

Thus, Jenkins had approximately ten months to gather documentation for the 

hearing, and we cannot hold the court abused its discretion when it denied 

Jenkins’ motion for continuance. See, e.g., id. at 597 (finding no abuse of 

discretion in denial of continuance when petitioner did not demonstrate he 

could have discovered necessary evidence if continuance was granted). 

Exhaustion of Administrative Remedies

[10] Jenkins alleges the PCR court erred in finding Jenkins failed to exhaust his

administrative remedies. Our legislature has provided a mechanism by which 

incarcerated persons can earn credit against a sentence for completion of 
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educational programs. See Ind. Code § 35-50-6-3.3. Following sentencing, 

when an incarcerated prisoner believes he has completed a program and 

qualifies for credit, “application for educational credit time must be made to 

and the initial ruling thereon made by the DOC.” Sander v. State, 816 N.E.2d 

75, 78 (Ind. Ct. App. 2004). We have so held because “the DOC alone is able 

to assess whether the applicant has met the behavior criterion set out in” the 

statute. Id. 

[11] When a petition for educational credit time is denied, the prisoner “must 

exhaust his administrative remedies within the DOC before appealing to a court 

because determinations altering credit time are the responsibility of the DOC.” 

Stevens v. State, 895 N.E.2d 418, 419 (Ind. Ct. App. 2008). Furthermore, when 

appealing the DOC’s decision to a court, the petitioner must be able to 

demonstrate “what the relevant DOC administrative grievance procedures are, 

and then that he has exhausted them at all levels.” Young v. State, 888 N.E.2d 

1255, 1257 (Ind. 2008). 

[12] Jenkins made no mention of exhaustion of administrative remedies in his PCR 

petition. At the hearing, Jenkins asserted he provided the evidence 

demonstrating exhaustion in response to the State’s motion to dismiss. Jenkins 

has directed us to nine pages of his Appendix, which he claims demonstrate 

exhaustion of administrative remedies. However, none of those memoranda 

and notes requesting copies of documentation from the DOC demonstrate the 

steps he needed to take to exhaust administrative remedies. Thus, Jenkins has

not sustained his burden of showing what the appeal procedures were following 
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a denial of credit time or that he exhausted them. We cannot say the PCR

court erred in finding Jenkins failed to exhaust his administrative remedies.1

 

See, e.g., Members v. State, 851 N.E.2d 979, 983 (Ind. Ct. App. 2006) (dismissing 

appeal because PCR court had not had authority to review petition for 

educational credit time when petitioner had not exhausted administrative 

remedies). 

Conclusion

[13] The PCR court did not abuse its discretion in denying Jenkins’ motion to 

continue the evidentiary hearing or his motion to appoint counsel. Further, 

Jenkins has not demonstrated the PCR court erred in determining Jenkins had 

not exhausted his administrative remedies. We accordingly affirm the dismissal 

of Jenkins’ petition.

[14] Affirmed. 

Brown, J., and Pyle, J., concur. 

 

1 We note the post-conviction court entered two final orders. The first dismissed Jenkins’ petition for failure 

to exhaust administrative remedies, and the second denied his petition on the merits. If, however, Jenkins 

had not exhausted his administrative remedies, then the post-conviction court did not have authority to 

review the merits of his petition. See, e.g., Burks-Bey v. State, 903 N.E.2d 1041, 1043 (Ind. Ct. App. 2009) (“If 

an offender exhausts all of his administrative remedies through the DOC . . . , Indiana’s courts then have 

subject matter jurisdiction over a request for educational credit time.”). We, accordingly, decline to consider 

the order denying Jenkins’ petition on the merits.