APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DAVID LEE MOSHENEK JEFFREY A. MODISETT
Michigan City, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DAVID LEE MOSHENEK, )
vs. ) No. 46A05-9808-CV-431
RONDLE ANDERSON, )
Superintendent of Indiana State Prison, )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Judge
Cause No. 46C01-9806-MI-180
October 29, 1999
OPINION - FOR PUBLICATION
Appellant, David Lee Moshenek (Moshenek), challenges the trial court's denial of his
claim for educational creditSee footnote
for receiving a second associate's degree.
The facts reveal that on August 9, 1995, Moshenek received an associate's degree in
General Studies from Vincennes University while serving a sixty year sentence at the Indiana
State Prison. Upon completing his associate's degree, Moshenek applied for an educational
credit pursuant to I.C. 35-50-6-3.3 which allows him a one-year credit toward his sentence.
On January 8, 1996, the Indiana Department of Correction (IDOC) granted Moshenek a one-
year credit for successful completion of his degree.
After receiving credit for this degree, Moshenek completed another associate's degree
in Biblical Studies at Grace College and again applied for an educational credit on August
29, 1997. IDOC, however, refused to recognize his second associate's degree and denied
him the credit. Moshenek filed a grievance, which IDOC denied and remanded the matter
to its classification appeal process. The classification appeal was denied because IDOC only
allows one educational credit per degree level. Moshenek then filed a habeas corpus petition
with the trial court. The trial court summarily denied the petition.
Upon appeal, Moshenek contends that the trial court erroneously denied his habeas
corpus petition for an educational credit. Before discussing whether Moshenek should have
received an educational credit, we must first note that Moshenek mischaracterized his
petition when he labeled it as one for habeas corpus relief.
One is entitled to a writ of habeas corpus only if he is entitled to immediate release
from unlawful incarceration. Jennings v. State (1979) 270 Ind. 699, 700, 389 N.E.2d 283,
284. Moshenek's petition does not claim that he is entitled to an immediate release from
prison or that he is unlawfully being held. Instead, Moshenek's petition asks for an
additional credit to be subtracted from his sentence, and therefore, his petition is more in the
nature of one for post-conviction relief. Our Supreme Court has held that a court may treat
an erroneously labeled petition for habeas corpus relief as one for post-conviction relief in
Miller v. Lowrance (1994) Ind., 629 N.E.2d 846, and in Dunn v. Jenkins (1978) 268 Ind.
478, 377 N.E.2d 868. Lowrance was recently followed in Miller v. Bryant (1994) Ind.App.,
644 N.E.2d 188, trans. denied. We, therefore, treat Moshenek's petition for habeas corpus
relief as a petition for post-conviction relief.
Moshenek asserts that he is entitled to an educational credit pursuant to I.C. 35-50-6-
3.3 (Burns Code Ed. Repl. 1998) for completing a second associate's degree. Ind. Code 35-
50-6-3.3 reads in pertinent part:
(a) . . . a person earns credit time if the person:
* * *
(3) Successfully completes requirements to obtain one (1) of the following:
(A) A general educational development (GED) diploma under IC 20-10.1-12.1,
if the person has not previously obtained a high school diploma.
(B) A high school diploma.
(C) An associate's degree from an approved institution of higher learning (as
defined under IC 20-12-21-3).
(D) A bachelor's degree from an approved institution of higher learning (as
defined under IC 20-12-21-3).
(b) The amount of credit time a person may earn under this section is the following:
(1) Six (6) months for completion of a state of Indiana general educational
development (GED) diploma under IC 20-10.1-12.1.
(2) One (1) year for graduation from high school.
(3) One (1) year for completion of an associate's degree.
(4) Two (2) years for completion of a bachelor's degree.
* * *
(e) The maximum amount of credit time a person may earn under this section is the lesser
(1) Four (4) years; or
(2) One-third (1/3) of the person's total applicable credit time.
IDOC found that Moshenek was not entitled to an additional one-year credit for his
second associate's degree because it interpreted I.C. 35-50-6-3.3 to allow a person to receive
only one educational credit per degree level. IDOC contends that the language in subsection
(a) including one (1) of the following and the use of singular articles before each degree,
e.g., an associate's degree, unambiguously means that it may only grant one credit per degree
level. Appellee's Brief at 4.
We turn to the rules of statutory construction for guidance in deciding whether I.C.
35-50-6-3.3 permits Moshenek to receive a one-year credit for his second associate's degree.
In construing a statute, we may not interpret the meaning of a statute that is clear and
unambiguous on its face. Miller v. Bryant, supra, 644 N.E.2d at 191. If a statute is
ambiguous, however, we must ascertain the legislature's intent and interpret the statute so
as to effectuate that intent. Id. When doing so, we read the statute as a whole, attempting
to give effect to all provisions. Miller v. Walker (1994) Ind.App., 642 N.E.2d 1000, 1002,
affirmed by, (1995) Ind., 655 N.E.2d 47; State v. Eckhardt (1997) Ind.App., 687 N.E.2d 374,
Here, I.C. 35-50-6-3.3 is ambiguous because of what it does not say. Subsection (a)
does not expressly state that a person may receive a credit for completing only one of each
of the degrees listed in the statute, nor does it expressly permit a person to receive credit for
multiple degrees of the same educational level. Also, subsection (e), which limits the amount
of credit time to the lesser of four years or one-third of the total applicable credit, necessarily
contemplates multiple degrees, but this subsection also does not include any description of
what combination of degrees a person may count toward this upper limit.
Thus, I.C. 35-50-6-3.3 is capable of more than one interpretation regarding credits for
multiple degrees of the same level, and we must try to effectuate the legislature's intent to
resolve this ambiguity. In Miller v. Bryant, supra, 644 N.E.2d at 191, we concluded that the
legislature's intent in enacting this statute was to provide incentive to further one's
education while incarcerated. Because the purpose behind the statute is to further
education, no legitimate argument may be made that a person should not receive credit for
multiple degrees of the same educational level under the statute. The statute neither
explicitly nor implicitly prohibits multiple degrees of the same level.
The educational credit statute was designed to enhance rehabilitation through
education. IDOC contends that receiving credit for two degrees of the same educational
level contravenes the statute's intent of providing an incentive to further one's education.
Appellee's Brief at 5. When a person pursues two college degrees in different areas of
concentration, he is furthering his education, even if those degrees are of the same
educational level. In the instant case, Moshenek received an associate's degree in General
Studies and later completed an associate's degree in Biblical Studies. Discouraging a person
from pursuing further education, regardless of degree level, flies in the face of the
legislature's intent. When reading the statute to comport with the legislature's intent of
furthering one's education, we hold that the statute does not preclude a person from using
multiple degrees of the same educational level to comprise his total credit time. If the
legislature prefers to prohibit a person from receiving credit for multiple degrees of the same
educational level, then it is free do so by amending the statute.
The judgment is reversed.
RILEY, J., and MATTINGLY, J., concur.
I.C. 35-50-6-3.3 (Burns Code Ed. Repl. 1998).
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