Harry Harrison v. Stanley Knight , 127 N.E.3d 1269 ( 2019 )

FILED
Jun 27 2019, 7:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Andrew R. Falk Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harry Harrison, June 27, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-MI-2918
v. Appeal from the Hendricks
Superior Court
Stanley Knight, et al., The Honorable Stephenie LeMay-
Appellees-Respondents. Luken, Judge
Trial Court Cause No.
32D05-1808-MI-186
Bailey, Judge.
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Case Summary
[1] Harry J. Harrison (“Harrison”) is being held in Hendricks County for alleged
parole violations, the disposition of which depends upon resolution of pending
2016 – 2017 criminal charges in Madison County, but for unknown reasons, he
has not been arrested on those charges so as to trigger his Sixth Amendment
right to trial within a reasonable time, as implemented by Indiana Criminal
Rule 4. Harrison presents the sole issue of whether he is entitled to habeas
corpus relief for an illegal detention. Under the unique circumstances of this
case, we conclude that Harrison did not validly waive his right to a preliminary
parole violation hearing with a determination of probable cause. We remand
with instructions to the Hendricks Superior Court to issue a rule to show cause
to the Indiana Attorney General, to answer as to why Harrison is in custody in
a chain of events stemming from charges upon which he has not been arrested.
Facts and Procedural History
[2] In 2006, Harrison pled guilty to the charge of unlawful possession of a firearm
by a serious violent felon and he was sentenced to twenty years imprisonment
in the Indiana Department of Correction (“the DOC”). On October 15, 2015,
Harrison was released from incarceration in the DOC to a community
transition program.
[3] On October 25, 2016 and January 27, 2017, Harrison was charged with new
criminal offenses in Madison County, Indiana. Harrison was apprehended in
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South Carolina, waived his right to an extradition hearing, and was returned to
Indiana. He was placed in custody on allegations of parole violations.
[4] On October 27, 2017, Harrison signed an Indiana Department of Correction
Division of Parole Services document titled “Waiver of Preliminary Hearing.”
(App. Vol. II, pg. 27.) The document listed eight alleged parole violations: (1)
unauthorized change of residence; (2) failure to report; (3) unauthorized out-of-
state travel; (4) charge of unlawful possession of a firearm; (5) charge of
pointing a firearm; (6) charge of criminal recklessness with a deadly weapon; (7)
charge of interference with reporting a crime; and (8) charge of failure to
register as a sex offender. Harrison did not initial the space provided to indicate
that he was pleading guilty to any allegation. Rather, he placed his initials by
the following provisions:
I plead NOT GUILTY to the alleged parole violations (numbers
1, 2, 3 listed above) and waive my right to a preliminary hearing.
I waive my right to a Preliminary Hearing of the following
alleged Rule #7: Criminal Conduct Violations (number 4, 5, 6, 7,
8 listed above).
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Id. Harrison signed an acknowledgment that he would not be heard by the
Indiana Parole Board until after the final disposition of his pending criminal
matters.1
[5] On March 5, 2018, Harrison filed in the Madison County Circuit Court a pro-se
motion for speedy trials on criminal charges pending in Madison County. The
trial court denied the motions, apparently on grounds that warrants were still
outstanding, Harrison had not been arrested on new charges, and he was being
held on parole violation allegations (without speedy trial rights). On May 21,
2018, Harrison filed a pro se motion for discharge pursuant to Criminal Rule
4(B). On June 7, 2018, the trial court denied Harrison’s motion, reasoning:
The Defendant is not incarcerated under the case in which he
believes he is entitled to a speedy trial. The Defendant is
currently incarcerated in the Department of Corrections on an
unrelated case. The Defendant has yet to even be arrested on the
pending case and, accordingly, is not entitled to the benefits of
the 70 day speedy trial rule under Criminal Rule 4(B).
Id. at pg. 10.
[6] On August 2, 2018, Harrison filed in the Hendricks Superior Court a petition
for a writ of habeas corpus. On August 24, 2018, he filed an amended petition,
naming as defendants the Warden of the Plainfield Correctional Facility and
1
The State advised the trial court that Harrison has “two pending cases” in Madison County, and Harrison
appears to concede as much. (App. Vol. II, pg. 22.)
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the Indiana Parole Board. He claimed that he was in unlawful, indefinite
detention because he had not been arrested on new charges yet had received no
parole hearing. The Indiana Attorney General filed a response, arguing that
Harrison was lawfully incarcerated because he was not statutorily entitled to a
final parole violation hearing until after disposition of pending criminal charges,
and he had signed a Waiver of Preliminary Hearing. On September 5, 2018,
the trial court denied Harrison’s habeas petition. Following a lengthy delay in
which Harrison attempted unsuccessfully to perfect a pro-se appeal and was
appointed successive appellate counsel, this Court granted Harrison permission
to bring this belated appeal.
Discussion and Decision
[7] Indiana’s habeas corpus statute, Indiana Code Section 34-25.5-1-1, provides
that
[e]very person whose liberty is restrained, under any pretense
whatever, may prosecute a writ of habeas corpus to inquire into
the cause of the restraint, and shall be delivered from the restraint
if the restraint is illegal.
A petitioner is entitled to habeas corpus only if he is entitled to immediate
release from unlawful custody. Hawkins v. Jenkins, 268 Ind. 137, 139, 374
N.E.2d 496, 498 (1978). We review a trial court’s habeas decision for an abuse
of discretion. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008).
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[8] Indiana Code Section 11-13-3-9 requires that, upon the arrest and confinement
of a parolee for an alleged parole violation, the parolee is entitled to a
preliminary hearing to determine whether there is probable cause to believe a
violation of a condition has occurred. The parolee is entitled to appear and
speak on his own behalf, call witnesses and present evidence, confront and
cross-examine witnesses, and obtain a written statement of the findings of fact
and the evidence relied upon. Id. Subsection (f) provides: “A parolee may
waive his right to a preliminary hearing.”
[9] A parolee who validly waives his right to a preliminary hearing awaits the
parole revocation hearing. Indiana Code Section 11-13-3-10(a)(1) provides that
a parolee who is confined due to an alleged violation of parole is to be afforded
a parole revocation hearing within sixty days after he is made available by a jail
or correctional facility if:
(A) there has been a final determination of any criminal charges
against the parolee; or
(B) there has been a final resolution of any other detainers filed
by any other jurisdiction against the parolee.
[10] Harrison has unsuccessfully pursued the prompt resolution of pending criminal
charges against him, which would start the clock for the parole revocation
hearing. He has repeatedly invoked Indiana Criminal Rule 4(B). His efforts,
although diligent, were in vain because “a defendant must be held on the charge
for which he requests a speedy trial for Criminal Rule 4(B) to apply.” Cundiff v.
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State, 967 N.E.2d 1026, 1029 (Ind. 2012). Had he been arrested on the new
charges, he would enjoy Sixth Amendment protection.
[11] The Sixth Amendment provides in part: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial[.]” A defendant has no
duty to bring himself to trial; rather, the primary burden is on the courts and
prosecutors. Arion v. State, 56 N.E.3d 71, 74 (Ind. Ct. App. 2016) (citing Barker
v. Wingo, 407 U.S. 514, 527 (1972)). “Indiana Criminal Rule 4 seeks to ensure
that the State provides defendants with a speedy trial as mandated by the
Constitution.” Id. at 74. Rule 4(B) provides that a defendant held in jail on an
indictment or affidavit who moves for a speedy trial shall be discharged if not
brought to trial within seventy days from the date of the motion. Rule 4(C),
without the requirement of a motion, provides that
No person shall be held on recognizance or otherwise to answer
a criminal charge for a period in aggregate embracing more than
one year from the date the criminal charge against such
defendant is filed, or from the date of his arrest on such charge,
whichever is later … .
[12] In Arion, the appellant was serving a prison sentence for an unrelated conviction
when he was served with a warrant informing him of new charges; he had in
vain requested a speedy trial on multiple occasions. 56 N.E.3d at 72. The
Arion Court recognized that the appellant retained his speedy trial rights, despite
the unrelated incarceration:
Given the nature of Arion’s case, it is important to note that the
fact that he was incarcerated for a separate conviction at the time
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he was charged with the present offenses is not important. The
United States Supreme Court has recognized that defendants
incarcerated for unrelated reasons still retain an interest in being
tried promptly on new charges. Smith [v. Hooey], 393 U.S. at 377-
78, 89 S.Ct. 575; Strunk v. United States, 412 U.S. 434, 439-40, 93
S.Ct. 2260, 37 L.Ed.2d 56 (1973). “The fact is that delay in
bringing such a person to trial on a pending charge may
ultimately result in as much oppression as is suffered by one who
is jailed without bail upon an untried charge.” Smith, 393 U.S. at
378, 89 S.Ct. 575.
56 N.E.3d at 74.
[13] Had the State served an arrest warrant upon Harrison, Criminal Rule 4(C)
would have dictated that Harrison be tried on a new charge within one year
from the date of his arrest. But no warrant was served on Harrison. He is
incarcerated with no end in sight, but for the expiration of his original unrelated
sentence. At the time he executed the waiver document, Harrison was taken
into custody for alleged parole violations, including newly alleged criminality.
Yet, he has no statutory right to a parole revocation hearing until there is a
resolution of these new criminal charges. The prosecution of these new charges
has been delayed, however, in that Harrison has not been served with arrest
warrants and he lacks speedy trial rights to force an expeditious determination
because he has not been arrested. The circumstances have prompted appellate
counsel to observe, “Mr. Harrison is up a creek without a paddle.” Appellant’s
Brief at 8.
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[14] The State takes the position that Harrison may lawfully be incarcerated until
the expiration of his twenty-year sentence, on May 31, 2022, without any
determination of probable cause supporting the parole violation allegation.
This is so, according to the State, because Harrison signed a waiver absolving
the Indiana Parole Board of any duty in that regard. We must disagree. If we
accepted the State’s position that Harrison, a parolee, can lawfully be
incarcerated until his maximum release date without presentation of evidence
or admission of guilt, the State’s burden to establish an alleged parole violation
would be completely obviated.
[15] Moreover, when Harrison ostensibly waived his right to a determination of
probable cause of a parole violation in a preliminary hearing, he could not
reasonably have contemplated the breakdown in the prosecutorial process. The
plain language of Indiana Code Section 11-13-3-9 contemplates the “arrest and
confinement” of a parolee as a predicate to a preliminary hearing. Here, the
execution of a waiver document absent an arrest on any new charge started a
chain of events that has denied Harrison the opportunity to have probable cause
for a parole violation established and denied him the disposition of criminal
charges in a reasonably timely manner. As Harrison insists, our parole
statutory scheme is not to be implemented in this way. Cf. Indiana
Constitution, Art. 1, Section 12:
All courts shall be open; and every person, for injury done to him
in his person, property, or reputation, shall have remedy by due
course of law.
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Justice shall be administered freely, and without purchase;
completely, and without denial; speedily, and without delay.
(emphasis added.)
[16] At first blush, it would appear that Harrison is entitled to immediate release,
subject to conditions of parole. However, we cannot on the record before us
determine with certainty that an arrest warrant has not been served upon
Harrison after the trial court issued its habeas ruling. We find further fact-
finding proceedings necessary, and therefore remand the matter to the trial
court.
Conclusion
[17] It is not evident from the record that Harrison is entitled to immediate release
from custody. However, he may not simply be held until his original sentence
expires, with no determination of probable cause for a parole violation. We
remand and instruct the trial court to conduct a hearing on a rule to show cause
directed to the Indiana Attorney General to show why Harrison is not entitled
to immediate release subject to conditions of parole.
[18] Remanded.
Riley, J., and Pyle, J., concur.
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