Olabisi Nard v. Mark Sevier (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be May 20 2016, 8:23 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Olabisi Nard Gregory F. Zoeller
Westville, Indiana Attorney General of Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Olabisi Nard, May 20, 2016
Appellant-Plaintiff, Court of Appeals Case No.
46A04-1508-MI-1147
v.
Appeal from the LaPorte Circuit
Court
Mark Sevier,
The Honorable Thomas
Appellee-Defendant. Alevizos, Judge
Trial Court Cause No.
46C01-1507-MI-1325
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Olabisi Nard (Nard), appeals the trial court’s denial of his
petition for a writ of habeas corpus.
[2] We affirm.
ISSUE
[3] Nard raises a single issue on appeal, which we restate as: Whether the trial
court improperly denied his habeas corpus petition.
FACTS AND PROCEDURAL HISTORY
[4] On May 27, 2002, the State filed an Information, charging Nard with attempted
murder. Nard was subsequently convicted and is currently serving a forty year
sentence in Westville Correctional Facility, Indiana. 1 In 2015, Nard filed a
verified petition for writ of habeas corpus arguing that confinement was in
violation of his rights under the Fifth and Fourteenth Amendment of the United
States Constitution because he was charged by information rather than being
indicted by a grand jury. On July 16, 2015, the trial court denied Nard’s habeas
1
See Indiana Department of Correction Offender Database,
http://www.in.gov/apps/indcorrection/ofs/ofs?lname=Nard&fname=Olabisi&search1.x=23&search1.y=1
1 (last visited Apr. 5, 2015).
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corpus petition, holding that under Indiana Code section 35-34-1-1 the State
may bring charges via indictment or information.
[5] Nard now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[6] Nard claims that the trial court erred in denying his petition for a writ of habeas
corpus. Habeas corpus practice is a well-established but little-used remedy
under Indiana law. Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d
978, 980 (Ind. Ct. App. 2001). 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.” The purpose of
the writ of habeas corpus is to bring the person in custody before the court for
inquiry into the cause of restraint. Partlow, 756 N.E.2d 980. One is entitled to
habeas corpus only if one is entitled to immediate release from unlawful
custody. Id.
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[7] On appeal, Nard argues that Indiana Code section 35-34-1-2(b) 2 violates the
Fifth Amendment to the United States Constitution. Specifically, he argues
that Indiana Code section 35-34-1-2(b) allows “prosecutors to discriminate
against rich and poor citizens, wherein, the rich and political figures receive
grand jury indictments [] yet, poor citizens receive no protections of the Fifth
Amendments (sic).” (Appellant’s Br. p. 2).
[8] We note that Indiana Code section 35-34-1-1 states: “[A]ll prosecutions of
crimes shall be brought in the name of the state of Indiana. Any crime may be
charged by indictment or information.” Indiana Code section 35-34-1-2 then
provides, in detail, the contents, necessary requirements, and form of an
indictment or information. Subsection (b) states that an indictment shall be
signed by the foreman or five members of the grand jury, and the prosecuting
attorney. In contrast, the same subsection provides that an information shall be
signed by the prosecuting attorney or his deputy and sworn to or affirmed by
him or any other person.
2
Throughout his appellate brief, Nard cites subsection (9)(b)(1)(2), but there is no subsection 9 in Indiana
Code section 34-35-1-2. We assume that Nard is referring to subsection (b) under I.C. § 34-35-1-2, since that
subsection was quoted in his appendix.
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[9] Nard maintains that prosecution by indictment protects an individual’s Fifth
Amendment right since prosecution is done by a “neutral body,” a grand jury;
whereas prosecution by information is done by “prosecutors [] who are not
clearly [] neutral.” (Appellant’s Br. p. 5).
[10] In Beverly v. State, 543 N.E.2d 1111, 1116 (Ind. 1989), our supreme court held
that the federal constitutional provision requiring grand juries is not applicable
to the states and the states may initiate criminal prosecutions by information.
Therefore, the procedure by which Nard was charged has been deemed
constitutional. The lack of review of charges by a grand jury does not show
purposeful discrimination for purposes of establishing an equal protection
claim. See Townsend v. State, 533 N.E.2d 1215, 1221-22 (Ind. 1989).
[11] In light of the above, the trial court correctly denied Nard’s habeas corpus
petition since he was properly charged by information pursuant to Ind. Code §
35-34-1-1. As such, Nard is not being held illegally.
CONCLUSION
[12] Based on the foregoing, we conclude that the trial court properly denied Nard’s
habeas corpus petition.
[13] Affirmed.
[14] Najam, J. and May, J. concur
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