Court of Appeals of Indiana | Memorandum Decision 19A-MI-2136 | September 8, 2020 Page 1 of 13

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

James Stephens

Greencastle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin M. L. Jones

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James Stephens,

Appellant-Defendant,

v.

Brian Smith,

Appellee-Plaintiff

September 8, 2020

Court of Appeals Case No.

19A-MI-2136

Appeal from the Putnam Superior 

Court

The Honorable Charles D. Bridges, 

Judge

Trial Court Cause No.

67D01-1904-MI-252

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2136 | September 8, 2020 Page 2 of 13

[1] James Stephens appeals the trial court’s denial of his petition for writ of habeas 

corpus. He presents multiple issues for our review, which we consolidate and 

restate as:

1. Whether Stephens’ petition for writ of habeas corpus was the 

appropriate filing for the relief Stephens requested;

2. Whether Stephens’ appeal is untimely; and 

3. Whether the trial court erred when it denied Stephens’ request 

to reinstate his good time credit (“GCT”).

1

We affirm.

Facts and Procedural History

[2] On November 3, 1999, a Marion County trial court sentenced Stephens to 

twenty years for one count of Class B felony burglary2 (“Count I”), twenty 

years for a second count of Class B felony burglary (“Count II”), three years for 

Class D felony theft,3 and three years for Class D felony attempted theft. 4

 The 

1 The parties and the record use various terms for the credit days that Stephens argues he should have 

reinstated. Stephens refers to this time as “earned good time credits,” (Appellee’s App. Vol. II at 5), and 

“earned credit time.” (Br. of Appellant at 4.) The State refers to the time as “deprived credit time” (Br. of 

Appellee at 2), and “good time credit.” (Appellee’s App. Vol. II at 13.) The trial court’s order calls the time 

both “good time credit” and “credit time[.]” (Appellant’s App. Vol. II at 13-4.) To alleviate confusion, we 

will refer to the time as “GCT.”

2 Ind. Code § 35-43-2-1 (1999).

3 Ind. Code § 35-50-2-7 (1999).

4 Ind. Code § 35-50-2-7 (1999) (theft); Ind. Code § 35-41-5-1 (1977) (attempt).
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2136 | September 8, 2020 Page 3 of 13

sentences for the burglary counts were to run consecutive to each other, and the 

theft sentences were to run concurrent to each other but consecutive to the 

burglary sentences, for an aggregate sentence of forty-three years incarcerated. 

On November 17, 1999, another Marion County trial court sentenced Stephens 

to fourteen years for another count of Class B felony burglary, which was to run 

consecutive to the sentences for his other crimes. Stephens’ earliest projected

release date is September 29, 2027. Indiana Offender Database, 

https://perma.cc/MA9M-XUA5 (accessed August 18, 2020).

[3] Between 2003 and 2010, Stephens violated various disciplinary rules at the 

DOC, including use of an unauthorized drug, forging documents, and 

attempted trafficking. For those violations, the Indiana Department of 

Correction (“DOC”) deprived Stephens of 1,685 days of GCT. Under the 

DOC’s 2004 version of the Disciplinary Code for Adult Offenders (“2004

Disciplinary Code”), an offender could petition the designated prison staff 

member for restoration of GCT if the offender met certain criteria. (See 

Appellee’s App. Vol. II at 45) (describing 2004 conditions under which GCT 

may be restored). On March 5, 2009, Stephens met the criteria for restoration 

of GCT and received restoration of fifty-seven days of GCT.

[4] On March 5, 2010, Stephens was paroled from his sentence for Count I and 

began serving his twenty-year sentence for Count II. On April 20, 2010, 

Stephens again committed attempted trafficking and was deprived thirty days of 

GCT on his sentence for Count II. On May 9, 2011, Stephens requested and 

received restoration of eight days of GCT, which was the maximum amount 
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2136 | September 8, 2020 Page 4 of 13

available under the 2004 Disciplinary Code. In 2015, the Disciplinary Code for 

Adult Offenders (“2015 Disciplinary Code”) was amended to indicate offenders 

could receive restoration of “fifty percent (50%) of the cumulative amount of 

restorable [GCT].” (Id. at 98.) In September 2018, Stephens filed a second 

request for restoration of the days of GCT deprived in 2010, and the DOC 

granted restoration of an additional seven days GCT. 

[5] On April 25, 2019, Stephens filed a petition for writ of habeas corpus, asking 

the trial court to restore 1,6505 GCT days that he lost between 2003 and 2019. 

He argued the DOC used the wrong version of the Disciplinary Code for Adult 

Offenders to determine the amount of GCT to be restored. He asked the trial 

court to restore the 1,650 days of GCT, which “increases his release date by 

four (4) years and eight months.” (Appellee’s App. Vol. II at 5.) Stephens 

asserted the restoration of that time would result in his release from prison.

[6] On June 18, 2019, the State responded with a motion to dismiss or, in the 

alternative, summary disposition. The State argued for dismissal of Stephens’ 

petition for writ of habeas corpus because a writ of habeas corpus could not 

issue when the relief Stephens requested in his petition would not result in his 

immediate release from incarceration. The State further argued that Stephens 

was not entitled to restoration of the 1,628 days of GCT under Count I because 

he had already served the entirety of the sentence for Count I and that Stephens 

5 The number of days should actually be 1,643 based on the total number of earned time credit deprived, 

which is 1,715, minus the total number restored, which is 72.
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was not entitled to further restoration of the GCT under Count II because the 

DOC had restored the maximum amount of GCT allowed by policy.

[7] On June 21, 2019, the trial court granted the State’s motion for summary 

disposition and denied Stephens’ petition for writ of habeas corpus, finding, in

relevant part:

3. Petitioner has not demonstrated that a writ of habeas corpus 

can issue in this case because he cannot show that he is entitled

to immediate release from unlawful custody.

* * * * *

5. Petitioner’s claim further lacks merit because he cannot obtain 

restoration of his [GCT] for a sentence that he has already 

completed serving, and he has already received all of the [GCT]

that he is entitled to under his current sentence. 

(Appellant’s App. Vol. II at 13.) On July 12, 2019, Stephens filed a motion to 

reconsider because he claimed the trial court erred when it did not give him an 

opportunity to respond to the State’s motion for summary disposition. On July 

29, 2019, the trial court denied the motion.

Discussion and Decision

[8] As an initial matter, we note that Stephens proceeded before the trial court and 

proceeds before this court pro se. It is well settled that

one who proceeds pro se is held to the same established rules of 

procedure that a trained legal counsel is bound to follow and, 
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therefore, must be prepared to accept the consequences of his or 

her action. While we prefer to decide cases on the merits, we 

will deem alleged errors waived where an appellant’s 

noncompliance with the rules of appellate procedure is so 

substantial it impedes our appellate consideration of the errors. 

The purpose of our appellate rules, Ind[iana] Appellate Rule 46 

in particular, is to aid and expedite review and to relieve the 

appellate court of the burden of searching the record and briefing 

the case. We will not become an advocate for a party, nor will 

we address arguments which are either inappropriate, too poorly 

developed or improperly expressed to be understood.

Ramsey v. Review Bd. of Indiana Dept. of Workforce Dev., 789 N.E.2d 486, 487 (Ind. 

Ct. App. 2003) (internal quotation marks and citations omitted).

1. Petition for Writ of Habeas Corpus

[9] Stephens challenges the trial court’s finding that he had “not demonstrated that 

a writ of habeas corpus can issue in this case because he cannot show that he is 

entitled to immediate release from unlawful custody.” (Appellant’s App. Vol. 

II at 13.) He argues “an action for restoration of [GCT] fall[s] within the core 

of Habeas Corpus because they go directly to the constitutionality of the 

prisoner’s confinement itself and seek either immediate release or a shortened 

length of confinement.” (Br. of Appellant at 8) (errors in original). A petitioner 

is entitled to a writ of habeas corpus only if he “is unlawfully incarcerated and 

is entitled to immediate release.” Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. 

App. 2008). 

[10] Here, Stephens did not request immediate release because his requested 

remedy, restoration of GCT, would result in a reduction of his sentence by 
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approximately four years and eight months. While the trial court found it could 

not consider Stephens’ petition as one for habeas corpus, it also made a finding 

regarding the merits of his request, and thus treated his improperly-filed petition 

as one for post-conviction relief, which was permissible.6

 See Grayson v. State, 

58 N.E.3d 998, 1001 (Ind. Ct. App. 2016) (because Grayson was not claiming 

he was entitled to immediate release, the trial court did not err when it 

considered his petition for a writ of habeas corpus as one for post-conviction 

relief).

2. Untimely Appeal

[11] The State contends Stephens’ appeal is untimely because he did not file his 

Notice of Appeal within thirty days of the trial court’s order. The trial court 

here issued its final order denying Stephens’ petition on June 21, 2019. On July 

12, 2019, Stephens filed a motion to reconsider, which the trial court denied on 

July 29, 2019. Stephens then filed his Notice of Appeal on August 29, 2019.

6 The State concedes that the trial court did not abuse its discretion when it considered Stephens’ petition as 

one for post-conviction relief. However, it also argues the trial court did not have jurisdiction to do so 

because the filing constituted an unauthorized successive petition for post-conviction relief. As the State did 

not argue this before the trial court, it is waived from our consideration. See Covens v. Zaberdac, 849 N.E.2d 

526, 533 (Ind. 2006) (“Issues not raised at the trial court are waived on appeal.”).

We also note that, because Stephens’ petition could not result in his release from prison, and thus was not a 

petition for habeas corpus, it should have been filed in the county of his conviction – Marion County – rather 

than in the county in which he was incarcerated –Putnam County. See Post Conviction Rule 1, section 1(c)

(indicating cause improperly filed as habeas corpus petition in county of incarceration should be transferred 

to county of conviction for review as PCR petition). As the Putnam County court already addressed the 

merits of Stephens’ petition as a PCR petition, we do so as well for the sake of judicial economy. See Woods 

v. State, 701 N.E.2d 1208, 1222 n.23 (Ind. 1998) (addressing merits of the appeal despite procedural 

deficiencies). 
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[12] While Stephens titled the motion he filed following the court’s final judgment a 

“motion to reconsider[,]” (Appellant’s App. Vol. II at 31) (original formatting 

omitted), that motion was, in fact, a motion to correct error, as it was filed after 

a final judgment. See Indiana Trial Rule 59(C) (“motion to correct error, if any, 

shall be filed not later than thirty (30) days after the entry of final judgment is 

noted in the Chronological Case Summary”) (emphasis added); and see Hubbard 

v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“[A]lthough

substantially the same as a motion to reconsider, a motion requesting the court 

to revisit its final judgment must be considered a motion to correct error. We 

decline to favor form over substance [thus the motion] should have been treated 

as a motion to correct error.”). 

[13] As Stephens’ motion was a motion to correct error, Stephens’ notice of appeal 

must have been filed within thirty days after the court’s ruling on that motion to 

correct error. See Indiana Appellate Rule 9(A)(1). The trial court denied

Stephens’ motion to correct error on July 29, 2019, and thus his appeal was due 

August 28, 2019. Stephens filed his notice of appeal on August 29, 2019, and 

thus it was late by one day.

[14] However, as has been noted on multiple occasions, when the right to an appeal 

has been forfeited, we may retain jurisdiction to entertain the appeal if there are 

“extraordinarily compelling reasons why this forfeited right should be 

restored.” See, e.g., In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). 

While there does not exist precedent to label the reinstatement of GCT as 

“extraordinarily compelling,” we elect to exercise our discretion to decide the 
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case on its merits, as has been our long-standing preference. See, e.g., Hopple v. 

Star City Elevator Co., 140 Ind. App. 561, 564, 224 N.E.2d 321, 323 (1967) 

(appellate court prefers to decide cases on their merits whenever possible).

3. Merits of the Case

[15] In his petition before the trial court and in his appellate brief, Stephens asks for 

the restoration of 1,650 days of GCT. As noted supra, this amount should be 

1,643 days of GCT. See supra n.5. The GCT also can be separated into GCT

for Count I, which totals 1,628 days, and GCT for Count II, which totals 15 

days. We will discuss the GCT for each count separately.

Count I GCT

[16] Stephens argues the trial court erred when it denied his request to restore 1,628 

GCT he was deprived because of various disciplinary issues from 2004 to 2010. 

Stephens filed his request for restoration of this GCT in 2019, nine years after 

March 5, 2010, when Stephens was released on parole after completing his 

sentence for Count I. Despite the timing of his request, Stephens argues he is 

entitled to automatic reinstatement of his GCT.

[17] The 2015 Disciplinary Code, which was in effect7 at the time Stephens filed his 

request for restoration of GCT, states:

7 Stephens argues his request for restoration of GCT should have been considered under the 2004 

Disciplinary Code despite the fact that he filed his request in 2019, which was well after the adoption of the 

2015 Disciplinary Code. It is well-established that, unless indicated in the language of the regulation, 

administrative agency regulations are to be applied prospectively. See Indiana Dept. of Envt’l Mgmt. v. Schnippel 
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The [GCT] that is requested to be restored must be time that was 

deprived while serving the current commitment period, active 

sentences only. No request for [GCT] may be filed unless the 

time was deprived while serving the current commitment period, 

active sentences only, with no findings of guilt after the effective 

date of this policy and administrative procedure as indicated in 

subsection 3, a-i of this section.[8]

 [GCT] deprived while serving 

a previous commitment period, or prior to release to parole, 

probation, or community corrections supervision on the current 

commitment period, active sentences only, cannot be restored.

(Appellee’s App. Vol. II at 98.) 

[18] When he filed his petition to restore GCT in 2019, Stephens requested 

reinstatement of GCT he was deprived of between 2004 through 2010, when he 

was serving his sentence for Count I. Stephens was released on parole for 

Count I in 2010 and began serving his sentence for Count II immediately 

thereafter. Therefore, when Stephens filed his request for restoration of GCT in 

2019, he was not serving the sentence from which that GCT was deprived and 

he was not entitled to reinstatement of the 1,628 days. The trial court did not 

err in denying Stephens’ request for reinstatement of the 1,628 days of GCT.

Const., Inc., 778 N.E.2d 407, 415 (Ind. Ct. App. 2002) (administrative regulations are prospective unless 

otherwise explicitly indicated in the language of the regulation), trans. denied. Thus, we will use the 

provisions in the 2015 Disciplinary Code.

8 This portion of the 2015 Disciplinary Code lists possible violations of DOC administrative code, and 

neither party argues they are relevant here.
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Count II GTC

[19] Stephens also contends he is entitled to the reinstatement of an additional 

fifteen days of GCT toward his sentence for Count II. As noted supra, in 2010, 

the DOC deprived Stephens of thirty days of GCT because he violated DOC 

rules. On May 9, 2011, Stephens requested reinstatement of the thirty days 

pursuant to the 2004 Disciplinary Code, which stated:

If the petition for restoration of [GCT] that has been deprived as 

a result of a disciplinary hearing is approved, the [GCT] shall be 

restored in the following manner:

(1) Approval of the first petition shall result in 25% of the 

original amount of the TOTAL lost [GCT] being 

restored[.] 

(Appellee’s App. Vol. II at 46) (emphasis in original). As it was his first 

petition, the DOC restored eight days, which represented 25% of the GCT 

Stephens was deprived based on his violation in 2010.

[20] In September 2018, Stephens filed a second request for restoration of the thirty 

days GCT deprived in 2010, under the 2015 Disciplinary Code, which stated, in 

relevant part:

g. If approved, [GCT] shall be restored only in the following 

manner:

* * * * *
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2. Approval of any subsequent petitions for restoration of 

[GCT] shall result in up to sixty (60) days of deprived 

[GCT] being restored for each successful subsequent 

petition, subject to the limitations of subsections 3 and 4[ 9]

below;

3. The total maximum amount of deprived [GCT] that 

can be restored is fifty percent (50%) of the cumulative 

amount of restorable [GCT];

(Appellee’s App. Vol. II at 99-100.) Based thereon, Stephens was granted 

restoration of an additional seven days GCT, for a total of fifteen days, which is 

the maximum allowed under the 2015 Disciplinary Code. As he has reached 

the maximum number of GCT to be reinstated, he is not entitled to additional 

days and the trial court did not err when it denied his request to reinstate the 

additional fifteen days.

Conclusion

[21] While we note the multiple procedural deficiencies in Stephens’ flings before 

the trial and appellate courts, we exercise our discretion to decide his case on 

the merits to clarify for Stephens that he has received reinstatement of all

possible deprived GCT and to provide closure to this issue. We hold the court 

did not err when it denied Stephens’ requests for reinstatement of his GCT

9 Section 4 is inapplicable because it addresses situations in which the reinstatement of deprived earned credit 

time would result in an immediate release from incarceration.
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under his sentences for Counts I and II. Accordingly, we affirm the decision of 

the trial court.

[22] Affirmed.

Robb, J., and Vaidik, J., concur.