Frederick A. Young v. Keith Butts and Indiana Parole Board (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 06 2020, 9:34 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Frederick A. Young Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Abigail R. Recker
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frederick A. Young, March 6, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-MI-1589
v. Appeal from the
Henry Circuit Court
Keith Butts and Indiana Parole The Honorable
Board, Kit C. Dean Crane, Judge
Appellees-Respondents. Trial Court Cause No.
33C02-1710-MI-125
Kirsch, Judge.
[1] Frederick A. Young (“Young”) appeals from the trial court’s order granting
summary judgment in favor of Keith Butts and the Indiana Parole Board
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(together, “the State”) and denying Young’s petition for writ of habeas corpus
relief (“habeas petition”). Young raises several issues, which we consolidate
and restate as:
I. Whether the trial court should have construed Young’s
habeas petition as a petition for post-conviction relief; and
II. Whether the trial court erred when it granted summary
judgment in favor of the State.
[2] We affirm.
Facts and Procedural History
[3] Young is currently incarcerated in the Indiana Department of Correction (“the
DOC”) at the New Castle Correctional Facility; his earliest possible release date
is December 30, 2027. On November 19, 2004, Young was sentenced to thirty-
five years for Class A felony child molesting. Appellant’s App. Vol. 2 at 18.
Young remained incarcerated in the DOC until February 26, 2017, when he
was released on parole. Id. at 36-37. While on parole, Young was required to
comply with the conditions of parole and the parole stipulations related to his
status as a sex offender. Id. at 31-33. Among these stipulations and conditions
that Young was required to follow were: (1) not to have contact with minors
without prior approval; (2) not to possess personal contact materials that
contain information about persons who are seeking sexual relationships; (3) not
to use an electronic device with internet connection to access any online
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computer search without prior approval; and (4) not to possess or use alcohol
and any illegal controlled substances. Id.
[4] On May 3, 2017, a warrant was issued for Young’s arrest due to his allegedly
having violated several conditions of his parole. He was taken into custody the
same day. Id. at 43. On May 5, 2017, Young was provided with notice of the
preliminary hearing and notice that he had violated five of the parole
stipulations, including Rule #4, contact with minors, Rule #9, possession of
personal contact materials, Rule # 10, unapproved computer or electronic
device usage, Rule # 12, possession or use of alcohol or illegal controlled
substances, and #19, unapproved relationship. Id. at 45. Young waived his
right to a preliminary hearing and was provided notice of the June 15, 2017
parole violation hearing. Id. at 46-47. On June 1, 2017, Young requested a
copy of the summary of his parole agent’s statement, as well as any documents
pertaining to the case, so he could prepare his defense. Id. at 48.
[5] On June 15, 2017, the Indiana Parole Board (“Parole Board”) held a parole
revocation hearing regarding Young’s alleged violations. Id. at 52. Young
admitted that he had received notice and that he was ready to proceed. Ex. 1.
Young pleaded not guilty to all five allegations. Appellant’s App. Vol. 2 at 53; Ex.
1. After listening to evidence on the matter, the Parole Board found Young
guilty of violating four conditions of his parole and issued the following
findings of fact:
[Rule #4]: Contact with Minors
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Subject’s personal phone was searched by Agent and had photos
of a minor on his phone who Subject advised was his grandson,
some of the photos were screen shots of a “face time” phone call.
[Rule #19]: Unapproved Relationship
Parole Agent searched Subject’s phone and discovered various
messages of the Subject looking for a physical relation [sic] and
advising that he was busy at the moment and was actively
involved in a physical relationship.
[Rule #10]: Unapproved Computer or Electronic Device Usage
Subject used his cell phone to access the internet for more than
legal work and also had made a Facebook account where he was
looking people up and talking to various people. Subject used the
fake name of Tamosie Young. Subject was also using the phone
to gain access to a dating app.
[Rule #12]: Possess or use of Alcohol or Illegal Controlled
Substance
On 05/03/2017, Subject was given a drug test and failed for
Meth.
All of the above occurred while the offender was a parolee.
Appellant’s App. Vol. 2 at 53-54.
[6] On October 16, 2017, Young filed a habeas petition, alleging that his parole
revocation was in retaliation for a previous lawsuit he had filed against the
Parole Board and that his parole agent and other parties conspired to adversely
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affect his right to parole, to quash his First Amendment rights, and to deny him
educational time and good time credits. Id. at 87-114. Young’s retaliation
claim was based on a motion for declaratory judgment and preliminary
injunction that he had filed against the DOC and the Parole Board on February
3, 2017, asserting that the requirement that he wear a monitoring device was a
violation of the Ex Post Facto Clause (“the declaratory judgment case”). Id. at
88. Young was arrested for his parole violations one day before a hearing was
scheduled in the declaratory judgment case, which resulted in Young’s failure
to appear for the hearing and the trial court’s dismissal of Young’s motion in
the declaratory judgment case. Id. In the habeas petition, Young also argued
that he was entitled to relief because he was not provided with the evidence
against him prior to the parole revocation hearing. Id. at 102. Further, Young
challenged the constitutionality of Rule #10, the unapproved computer or
electronic device usage condition. Id. at 106-13. Young requested that the trial
court reverse the Parole Board’s decision revoking his parole. Id. at 113.
[7] On November 30, 2017, the State filed a motion for summary judgment,
arguing that Young had pleaded guilty at the parole revocation hearing and,
therefore, could not challenge the sufficiency of the evidence supporting the
revocation, and that Young was afforded all of the process due at the hearing.
Id. at 120-28. On January 3, 2018, Young filed an affidavit asserting that he did
not plead guilty on May 5, 2017, or at any time thereafter. Id. at 141. Young
then filed an amended brief in opposition to the State’s motion for summary
judgment, claiming that he did not ask the habeas court to discharge his
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sentence, that the State produced a falsified document, and that the Parole
Board ignored his request to receive evidence prior to the hearing. Id. at 144-
53.
[8] On January 9, 2018, the trial court granted the State’s motion for summary
judgment on the ground that “the undisputed facts establish that parole was
lawfully revoked” because Young “pleaded guilty to violating parole and was
afforded due process during the hearing.” Id. at 157-59. Young filed a motion
to correct error, arguing that he did not plead guilty, the ruling was contrary to
Supreme Court precedent, and the trial court did not apply the test for
retaliation. Id. at 160-66. The trial court denied Young’s motion to correct
error on February 22, 2018. Id. at 178.
[9] Young appealed under case number 18A-MI-593. Id. at 179-82. The State filed
a motion to remand, arguing that there was an issue of fact as to whether
Young pleaded guilty to the parole violation and that Young’s habeas petition
should have been construed as a petition for post-conviction relief. Id. at 195-
98. On August 6, 2018, this court remanded the case to the trial court to
address the issues raised in the motion to remand. Id. at 199.
[10] On October 18, 2018, Young filed a motion to transfer the action to the court of
conviction because his petition should be treated as one for post-conviction
relief, not a habeas petition. Id. at 227-32. On March 7, 2019, Young filed a
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motion for leave to amend his habeas petition. Appellant’s App Vol. 3 at 252-73.1
The State filed a response to Young’s motion, urging the trial court to deny the
motion because Young raised no substantially different claims, the Parole
Board found Young guilty based on sufficient evidence, and whether the
document claiming he pleaded guilty was “falsified” is irrelevant to whether his
parole was properly revoked. Id. at 277-81. On the same day, the trial court
denied Young’s motion for leave to amend his habeas petition. Id. at 284.
[11] On April 11, 2019, the trial court held a hearing on the State’s motion for
summary judgment. At that hearing, Young again argued that “this is not
about whether the parole board had discretion to find me guilty of the parole
violations, but rather the parole [agent] retaliated against me under the First
Amendment for filing the Supreme Court action against the [P]arole [B]oard
and the [DOC] on April 18, 2017.” Tr. Vol. 2 at 6. The State argued that
summary judgment in its favor was appropriate because there was sufficient
evidence to find Young violated the conditions of his parole. Id. at 5, 8.
[12] On May 2, 2019, the trial court entered its findings of fact and conclusions of
law granting the State’s motion for summary judgment. Appellant’s App. Vol. 3
at 285-86. The trial court determined that summary judgment in favor of the
State was warranted because Young’s parole was properly revoked, stating that
regardless of whether or not he pleaded guilty, “Young’s parole was lawfully
1
We note that the page numbers in Young’s Appellant’s Appendix Volume 3 continue to be paginated
consecutively from the end of Volume 2.
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revoked because he was found guilty of violating parole by the Indiana Parole
Board and was afforded due process during the hearing.” Id. at 286. Young
now appeals.
Discussion and Decision
I. Post-Conviction Relief Petition
[13] Young initially argues that the trial court erred in not treating his habeas
petition as a petition for post-conviction relief. He contends that because his
habeas petition attacked the validity of his parole revocation and did not assert
that he was unlawfully incarcerated and entitled to immediate release, his
habeas petition should have been properly considered by the trial court as a
petition for post-conviction relief. Because it was not, Young asserts that we
should reverse the trial court’s decision and remand to the trial court for
consideration under Indiana’s Post-Conviction rules.
[14] Such action is not necessary. The State agrees that the trial court should have
construed Young’s habeas petition as one for post-conviction relief.2 Regardless
of how the trial court construed Young’s petition, the State maintains that we
should address the merits of the appeal.
2
We note that the State argued in its motion to remand Young’s previous appeal under 18A-MI-593 that
Young’s habeas petition should have been construed as a petition for post-conviction relief, and this court
remanded the case to the trial court to address the issues raised in the motion to remand. Appellant’s App. Vol.
2 at 195-99.
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[15] A petitioner may file a petition for post-conviction relief for many reasons,
including because his “parole or conditional release [was] unlawfully revoked.”
Ind. Post-Conviction Rule 1(1)(a)(5). However, “[o]ne is entitled to habeas
corpus only if he is entitled to his immediate release from unlawful custody.”
Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496, 498 (1978) (emphasis
added). “A prisoner can only obtain a discharge through habeas corpus. He
cannot obtain a modification of his commitment.” Id.
[16] In recent years, this court has clarified that when a prisoner challenges his
parole revocation on the basis that at the time the petition to revoke was filed,
he was not actually on parole, his petition should be construed as a petition for
writ of habeas corpus. See Hale v. Butts, 88 N.E.3d 211, 214 (Ind. Ct. App.
2017) (holding that because Hale was arguing that at the time the petition to
revoke was filed, he had already been discharged from parole, his petition
should have been classified as a petition for writ of habeas corpus); Hobbs v.
Butts, 83 N.E.3d 1246, 1249 (Ind. Ct. App. 2017) (holding Hobbs’s petition was
appropriately captioned as one for habeas corpus because Hobbs was not
challenging the validity of the revocation -- he was not arguing there was
insufficient evidence or that his due process rights had been violated -- but
instead he was arguing that his parole had already been discharged). Here,
Young’s petition should have been construed as a petition for post-conviction
relief because Young was challenging the validity of the revocation of his parole
as he argued that there was insufficient evidence to support the Parole Board’s
decision and that his due process rights were violated during the proceedings in
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addition to claiming that his parole revocation was in retaliation for a previous
lawsuit he had filed against the Parole Board. Appellant’s App. Vol. 2 at 88-114.
The trial court, therefore, erred when it construed Young’s petition as one for
writ of habeas corpus and not as a petition for post-conviction relief.
[17] The trial court, which was in the county of incarceration, had jurisdiction to
hear both a petition for writ of habeas corpus and a petition for post-conviction
relief in this case. Because the trial court had jurisdiction to hear either petition,
it does not matter how the trial court construed the petition in this case. See
Ind. Code § 34-25.5-2.2 (providing that petitions for writ of habeas corpus
should be filed in the county of incarceration); Ind. Post-Conviction Rule 1(2)
(providing that petitions for post-conviction relief not challenging the validity of
the conviction or sentence, but lawfulness of parole revocation, should be filed
in the county of incarceration). Courts may summarily decide both petitions
for writ of habeas corpus and petitions for post-conviction relief. Ind. Post-
Conviction Rule 1(4)(g); Pallet v. State, 901 N.E.2d 611, 613 (Ind. Ct. App.
2009) (rejecting the idea that an evidentiary hearing must be heard on a petition
for writ of habeas corpus and holding that it could be subject to dismissal under
Indiana Trial Rule 12(B)(6)), trans. denied. Notwithstanding the trial court’s
classification of the petition as a writ of habeas corpus, we proceed to address
the merits of Young’s case. See Hale, 88 N.E.3d at 214 (addressing the merits
regardless of the court’s misclassification of the petition as a petition for post-
conviction relief); Hobbs, 83 N.E.3d at 1249 (same).
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II. Summary Judgment
[18] An appellate court reviews the grant of a motion for summary disposition in
post-conviction proceedings on appeal in the same way as a motion for
summary judgment. Brown v. State, 131 N.E.3d 740, 742 (Ind. Ct. App. 2019)
(citing Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008)), trans. denied.
Summary disposition, like summary judgment, is a matter for appellate de novo
determination when the determinative issue is a matter of law, not fact. Id.
Post-Conviction Rule 1(4)(g) provides that the trial court may grant a motion by
either party for summary disposition of the petition when “it appears from the
pleadings, depositions, answers to interrogatories, admissions, stipulations of
fact, and any affidavits submitted, that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.”
[19] Young argues that the trial court erred when it granted summary judgment in
favor of the State and denied his petition. He specifically contends that a
genuine issue of material fact exists as to whether his due process rights were
violated because he was denied disclosure of the evidence. Young also asserts
that there is an issue of material fact in regard to his First and Fourteenth
Amendment retaliation claim, and he maintains that his parole was revoked in
retaliation for his filing of a claim against the Parole Board and the DOC.
Young further alleges that two of the parole conditions that he was found to
have violated were unconstitutional.
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[20] “It has long been the rule in Indiana that the discretion of the Parole Board is
not subject to supervision or control of the courts.” Hawkins, 268 Ind. at 143,
374 N.E.2d at 500. “[O]nce the [Parole] Board has fulfilled [the statutory
procedural requirements], it has almost absolute discretion in making its
decision and such discretion will not be interfered with by the courts.” Id.
[21] Parolees charged with violations of parole are within the protection of the Due
Process Clause of the Fourteenth Amendment. Grayson v. State, 58 N.E.3d 998,
1001 (Ind. Ct. App. 2016) (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
As such, parolees are entitled to a two-stage parole-revocation procedure: (1) a
preliminary hearing to determine whether there is probable cause to believe that
the arrested parolee has committed acts that would constitute a violation of
parole conditions; and (2) a revocation hearing before the final decision on
revocation to consider whether the facts as determined warrant revocation. Id.
(citing Morrissey, 408 U.S. at 485-88). “The minimum requirements of due
process include written notice of the claimed parole violations, disclosure to the
parolee of the evidence against him, an opportunity to be heard in person and
to present evidence, the right to confront and cross-examine adverse witnesses,
a ‘neutral and detached’ parole-hearing board, and a written statement by the
board of the evidence relied upon and the reasons for revoking parole.” Id.
[22] Here, Young was provided with the two-stage parole revocation procedure. He
waived his right to a preliminary hearing to determine probable cause,
Appellant’s App. Vol. 2 at 46, and on June 15, 2017, the Parole Board held a
hearing to determine whether to revoke Young’s parole. Id. at 52-53. The
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Parole Board read aloud the evidence against Young and allowed Young to
present his side of the story. Ex. 1. The Parole Board then found Young guilty
of violating four conditions of his parole: Rule #4, contact with minors; Rule
#19, unapproved relationships; Rule #10, unapproved computer or electronic
device usage; Rule #12, possession or use of alcohol or illegal controlled
substance. Appellant’s App. Vol. 2 at 53-55.
[23] Young asserts that his due process rights were violated because he did not
receive disclosure of the evidence used against him. Due process requires that
the Parole Board disclose the evidence against the parolee that it considered.
Komyatti v. State, 931 N.E.2d 411, 418 (Ind. Ct. App. 2010). At his revocation
hearing, the Parole Board read aloud all of the evidence against Young and
gave him an opportunity to refute the evidence and explain his version of the
events. Ex. 1. While Young submitted a request for evidence prior to the
hearing, he has not shown that the Parole Board erred in not providing the
evidence to him because Young made no mention of the requested evidence
prior to the revocation hearing, and he did not ask for a continuance. Id. In
fact, before the evidence was read by the Parole Board, Young was asked twice
whether he was ready to proceed, and he said “yes.” Id. Therefore, there was
no error in the Parole Board’s failure to produce the evidence ahead of time.
See Komyatti, 931 N.E.2d at 418-19 (holding that parolee failed to establish error
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in the failure to provide evidence where he never mentioned his request at the
hearing or requested a continuance).3
[24] To the extent that Young argues that the Parole Board’s decision was not
supported by sufficient evidence, we disagree. On appeal, this court considers
“only the evidence most favorable to the revocation and will not reweigh the
evidence or judge the credibility of the witnesses.” Id. at 419. Here, the Parole
Board based its decision on evidence from the parole release agreement, the
parole violation report, the parole case notes, and the preliminary hearing
waiver. Appellant’s App. Vol. 2 at 53. The evidence included that a photograph
of Young’s minor grandson was found on his cellphone, including “screen shots
of a ‘face time’ phone call”; Young had messages on his phone from a person
seeking a physical relationship with Young; Young had used his phone to
access the internet for more than legal work, including creating a Facebook
account and gaining access to a dating app; and on May 3, 2017, Young had
tested positive for methamphetamine. Id. at 53-54.
3
Although Young does not explicitly argue that the Parole Board was not neutral and detached in its
determination that he violated his parole, to the extent that his retaliation claim can be construed as such, we
disagree. “[T]o show improper bias or prejudice in a decisionmaker, a defendant must demonstrate a
personal bias against him or her that stems from a source separate from the evidence and argument presented
at the proceedings.” Komyatti v. State, 931 N.E.2d 411, 418 (Ind. Ct. App. 2010). The fact that a tribunal
ruled against a defendant does “not indicate a personal bias that calls impartiality into question.” Id. Here,
although Young argues that his parole agent knew of the complaint he had filed against the Parole Board and
the DOC, he has not provided any evidence that the Parole Board had knowledge of the complaint, and he
has presented no evidence that the Parole Board was not neutral and detached.
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[25] During the parole revocation hearing, Young did not deny that he had tested
positive for methamphetamine. Rather, he asserted that he was taking Zantac,
which could result in a false positive. Ex. 1. He said that the Facebook account
was his son’s because his son had just given him the phone. Id. In regard to the
dating app, Young denied knowing the person and stated that the numbers on
the phone were already on there when his son gave him the phone. Id.
Regarding the contact with minors, Young said that the people on the phone
were his son’s cousins and Young’s family members, and the photos were on
the phone when his son gave it to him. Id.
[26] The Parole Board was not required to believe Young’s version of the events.
See Komyatti, 931 N.E.2d at 420. The Board is afforded almost absolute
discretion in rendering its decision. See Hawkins, 268 Ind. at 143, 374 N.E.2d at
500. We, therefore, conclude that the Parole Board did not violate Young’s due
process rights, and it had sufficient grounds for the revocation of his parole.
[27] Young also contends that there is a material issue of fact regarding his First and
Fourteenth Amendment retaliation claims because he maintains that his parole
was revoked in retaliation for his having filed a claim against the Parole Board
and the DOC. The United States Supreme Court has held that in order to win
on a retaliatory arrest or retaliatory prosecution claim, the plaintiff must plead
and prove that there was an absence of probable cause to support the charge.
Nieves v. Bartlett, 139 S. Ct. 1715, 1728 (2019); Hartman v. Moore, 547 U.S. 250,
265-66 (2006). In Hartman, the Court held that to bring a claim for a retaliatory
prosecution, the plaintiff must plead and prove that there is no probable cause
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to support the charge. Id. at 265-66. Nieves extended Hartman to retaliatory
arrest claims. 139 S. Ct. at 1725. In the context of a retaliatory arrest claim,
when there is probable cause to support the prosecution or arrest, a plaintiff’s
retaliation claim cannot succeed as a matter of law. Id. at 1728. One exception
to this is that “the non-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech
had not been.” Id. at 1727. Young’s retaliation claim cannot succeed if there
was probable cause to support the revocation of his parole, and we have already
concluded above that there was sufficient evidence to support the Parole
Board’s revocation of his parole. Additionally, Young does not argue that the
exception to the rule applies to this case. Because the evidence supported the
conclusion that Young’s parole was lawfully revoked, he cannot obtain post-
conviction relief on his retaliation claim.
[28] Young also argues that two of the conditions of his parole, Rule #10,
unapproved computer or electronic usage, and Rule #19, unapproved
relationships, are unconstitutional. Appellant’s Br. at 19-23. However, Young
has waived the issue of whether Rule #19, the unapproved relationship
provision, is unconstitutional because he did not present the issue to the trial
court in his habeas petition. See Hale, 88 N.E.3d at 216 n.8. While Young did
raise the constitutionality of the computer or electronic usage provision in his
habeas petition, it is not necessary to address whether that condition, or the
unapproved relationship condition, is unconstitutional because the Parole
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Board found that Young violated two other conditions of his parole, Rule #4,
contact with minors and Rule #12, possession or use of alcohol or illegal
controlled substance.
[29] The violation of just one condition of parole is sufficient for a parole board to
revoke parole. See Ind. Code § 11-13-3-8(a), (b) (stating that if a parole agent
believes that a parolee has violated a condition of parole, he may submit a
written report of the violation to the parole board and that upon a showing of
probable cause to believe the parolee violated a parole condition, the parole
board may issue an order for the parolee to appear for a revocation hearing on
the alleged violation); Ind. Code § 11-13-3-10(c) (stating that if the parole board
finds that a parolee has violated parole, it can revoke the parole and order the
parolee imprisoned). Courts need not address constitutional arguments unless
it is absolutely necessary to do so. See, e.g., Edmonds v. State, 100 N.E.3d 258,
262 (Ind. 2018); Jean-Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017). Because
here, the Parole Board found that Young violated two other conditions of his
parole, about which he does not raise any constitutionality claims, and based on
the longstanding principle of constitutional avoidance, we decline to reach
Young’s constitutional challenge to the conditions of his parole.
[30] Based on all of the above, we conclude that the trial court properly granted
summary judgment in favor of the State and did not err in denying Young’s
petition.
[31] Affirmed.
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Bailey, J., and Mathias, J., concur.
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