Damon Nelson v. State of Indiana (mem. dec.) ( 2017 )

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 FILED
the defense of res judicata, collateral Apr 07 2017, 8:32 am
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Damon Nelson Curtis T. Hill, Jr.
Pendleton Correctional Facility Attorney General of Indiana
Pendleton, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Damon Nelson, April 7, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A02-1609-PC-2171
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Respondent Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1512-PC-42702
Crone, Judge.
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[1] Damon Nelson, pro se, appeals the postconviction court’s denial of his
successive petition for postconviction relief. We affirm.
[2] The relevant facts indicate that Nelson was mandatorily paroled from the
Indiana Department of Correction on February 25, 2013. When he was
released to parole, he executed a conditional parole release agreement, which
included a provision that he “will not engage in conduct prohibited by federal
or state law or local ordinance.” Appellant’s App. Vol 2. at 101. The agreement
was signed by Nelson but not by a member of the parole board. Nelson was
arrested in April 2013 on new criminal charges and was served a warrant
alleging a parole violation. After the criminal charges were dismissed, the
parole warrant was lifted and voided, and Nelson was released. On January 3,
2014, Nelson was recharged with two counts of possession of cocaine or a
schedule I, II drug, and operating a vehicle while intoxicated under cause
number 49G14-1401-FD-264. A warrant for Nelson was issued by the parole
board on January 24, 2014, alleging a parole violation based upon his
commission of a new criminal offense. The warrant was served on Nelson on
January 28, 2014. Nelson did not receive a preliminary parole violation
hearing,1 and on November 23, 2015, he pled guilty to possession of cocaine or
a schedule I, II drug. On January 8, 2016, Nelson was given notice that there
would be a parole violation hearing based on his alleged violation of parole.
That hearing was held on January 12, 2016. Nelson attended the hearing by
1
The parties dispute whether Nelson was offered and verbally waived his preliminary hearing.
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videoconference, and his parole was revoked based upon his conviction in
cause number 49G14-1401-FD-264.
[3] This Court granted Nelson permission to file a successive petition for
postconviction relief, and on March 16, 2016, Nelson filed his pro se amended
petition for successive postconviction relief challenging the revocation of his
parole. The trial court entered its findings of fact and conclusions thereon
denying Nelson’s petition on August 17, 2016, and this appeal ensued.
[4] Initially, we observe that although Nelson is proceeding pro se, he is held to the
same standard as trained counsel and is required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. The
petitioner in a postconviction proceeding bears the burden of establishing the
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of postconviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the postconviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
postconviction court. Id.[5] Nelson cannot meet his appellate burden because has not developed a cogent
argument with appropriate citations to relevant authority. While he summarily
asserts that his parole release agreement was invalid because it was not signed
by a member of the parole board, and that his constitutional rights were
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violated for various reasons including that he was not afforded a preliminary
parole violation hearing, his argument is merely a recitation of facts and some
procedural history with a few references to the federal and state constitutions.
He fails to cite a single case or other authority to support his claims, nor does he
direct us to any portion of the record to demonstrate or to adequately explain
how his constitutional rights were violated. A party waives any issue raised on
appeal where the party has failed to develop a cogent argument or provide
adequate citation to authority and portions of the record. See Ind. Appellate
Rule 46(A)(8)(a); Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005),
trans. denied. In sum, he has waived our review, as we will not entertain his
bald assertions. Accordingly, we affirm the judgment of the postconviction
court in all respects.
[6] Affirmed.
Baker, J., and Barnes, J., concur.
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