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COA reverses dismissal of PCR petition

August 9, 2017

An Indiana man will get a second chance at post-conviction relief after the Indiana Court of Appeals determined Wednesday that his petition for relief was erroneously dismissed as an improper successive petition.

In November 2006, Todd Currie pleaded guilty to two counts of Class B felony child molesting and was sentenced to concurrent terms of 20 years on each count, with 10 years of each suspended. Currie then filed for post-conviction relief in 2010, but withdrew that petition at his own request without prejudice.

Currie was then released from the Indiana Department of Correction in June 2012 and placed on probation and parole in Adams County. His probation was transferred to another county in 2014, and shortly thereafter the Adams County probation department filed a notice of probation violation.

The Adams Circuit Court then revoked Currie’s probation and order him to serve his previously suspended 10 years of his sentence. Currie filed a motion for relief from judgment and a second PCR petition in January 2016, alleging ineffective assistance of counsel and questioning whether Adams County could revoke his probation when it had been transferred to another county. He also questioned whether he could be simultaneously placed on probation and parole.

Then in April 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 referred to a period of mandatory parole. The state moved to have that complaint treated as a petition for post-conviction relief and transferred to Adams Circuit Court.

The case was transferred, refiled as a PCR petition and docketed under a new cause number. The Adams Circuit Court then determined, under Indiana Post-Conviction Rule 1(12), the petition was an improperly filed successive petition for post-conviction relief and dismissed it with prejudice.

On appeal in Todd Alan Currie, Jr. v. State of Indiana, 01A02-1609-PC-2077, Currie argued the Adams Circuit Court erred in applying Post-Conviction Rule 1(12) to the current PCR and dismissing it as an unauthorized success petition. The Indiana Court of Appeals agreed, with Judge Margret Robb writing that a final decision was not reached for either of his previous PCR petitions.

Specifically, Robb noted that the 2010 petition was withdrawn with prejudice, while “there is nothing to suggest the state moved for summary disposition” on the 2016 petition, and no evidentiary hearing was held.

“Finally, we also note that the post-conviction court’s order dismissing the current PCR mentions only that Currie had previously filed a petition for post-conviction relief and does not indicate the 2016 PCR had already been resolved,” Robb continued. “As resolution of one post-conviction relief proceeding is what makes a second petition ‘successive,’…we conclude the post-conviction court erred in considering the Current PCR to be a successive petition… .”

Further, “the fact the post-conviction court dismissed the Current PCR with prejudice…precluded the opportunity for Currie to amend his 2016 PCR to include the allegations from his Current PCR,” pursuant to Post-Conviction Rule 1(4)(c), Robb wrote.

The appellate court reversed the dismissal of Currie’s petition and remanded the case for further proceedings.
 

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