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Currie v. State

Court of Appeals of Indiana

August 9, 2017

Todd Alan Currie, Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Adams Circuit Court The Honorable Chad E. Kukelhan, Judge Trial Court Cause No. 01C01-1606-PC-4

          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 The 2010 PCR was later withdrawn at Currie's request without prejudice.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 ...

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