Derek Carter v. Keith Butts, Warden of the New Castle Correctional Facility (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 19 2017, 10:34 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Derek Carter Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Carter, December 19, 2017
Appellant-Petitioner, Court of Appeals Case No.
33A01-1707-MI-1668
v. Appeal from the Henry Circuit
Court
Keith Butts, Warden of the New The Honorable Kit C. Dean Crane,
Castle Correctional Facility, Judge
Appellee-Respondent. Trial Court Cause No.
33C02-1704-MI-38
Bradford, Judge.
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Case Summary
[1] Appellant-Petitioner Derek Carter admitted to violating the terms of his parole
and his parole was consequently revoked. Carter then filed a writ of habeas
corpus. The trial court treated Carter’s challenge as a petition for post-
conviction relief1 and granted summary disposition in favor of the State.2
Carter appeals, arguing that (1) the evidence is insufficient to prove that he
violated the terms of his parole, and (2) he was denied the opportunity to
present certain evidence and to call and question a particular witness during the
parole revocation hearing. The record reveals that Carter admitted to violating
the terms of his parole. As such, we conclude that Carter’s challenge to the
sufficiency of the evidence to prove his violation is without merit. Further,
given Carter’s admission, any error relating to his claimed lack of an
opportunity to present a defense is at most harmless. We therefore affirm.
Facts and Procedural History
[2] Carter is currently incarcerated at the New Castle Correctional Facility and is
serving a twenty-year sentence for Class B felony robbery. On September 8,
1
In treating Carter’s challenge as a petition for post-conviction relief, the trial court appeared to recognize
that while Carter stated that he was being unlawfully incarcerated and was entitled to immediate release,
Carter was actually challenging the propriety of the revocation of his parole. Stated differently, the trial court
appeared to realize that while Carter argues that the revocation of his parole was improper and, as a result, he
should be released from incarceration, he does not argue that his sentence has expired or that he should no
longer be subject to the terms of his parole.
2
Appellee-Respondent Keith Butts is named in the underlying proceedings in his position as a representative
of the State of Indiana.
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2015, Carter signed a conditional parole release agreement. This agreement
provided that Carter understood that certain actions, including using illegal
drugs, would qualify as a violation of the conditions of his parole. He was
mandatorily paroled on February 13, 2016.
[3] While on parole, Carter provided a positive drug screen on May 20, 2016.
Carter admitted that he had used marijuana prior to submitting to the drug
screen. On June 16, 2016, Carter was found to be living at an unapproved
address. He had not notified his parole agent of any change in address. A week
later, during an unannounced visit by parole staff, a bag containing marijuana
was found in the home where Carter was staying. Carter was home alone at
the time. Carter was subsequently charged with violating the terms of his
parole by testing positive for marijuana, possession of marijuana, and an
unauthorized change of residence. Carter waived his right to a preliminary
hearing on all three allegations.
[4] On August 11, 2016, Carter waived his right to forty-eight-hour notice of his
parole hearing. Carter’s hearing was held later that day. During his hearing,
Carter denied having an unauthorized change of residence. However, he
admitted that he had violated the terms of his parole by using marijuana. The
Parole Board found him guilty of violating the terms of his probation by both
using marijuana and having an unauthorized change of residence. As a result
of this finding, the Parole Board revoked Carter’s parole and “assessed the
balance of [his] sentence.” Appellee’s App. Vol. II, p. 30. His current projected
release date is March 17, 2022.
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[5] In March or April of 2017, Carter filed a writ of habeas corpus, challenging the
revocation of his parole.3 Carter alleged that he was denied his due process
rights because he received untimely notice of the parole revocation hearing.
Carter also alleged that he was denied the opportunity to present certain
evidence and to call and question a particular witness during the parole
revocation hearing. The State subsequently filed a motion for summary
disposition, arguing that Carter’s challenge should be treated as a petition for
post-conviction relief. On June 26, 2017, the trial court issued an order
granting summary disposition in favor of the State. This appeal follows.
Discussion and Decision
I. Standard of Review
[6] Carter appeals from the summary disposition of his claim that his parole was
improperly revoked.
We review the grant of a motion for summary disposition in
post-conviction proceedings on appeal in the same way as a civil
motion for summary judgment. Norris v. State, 896 N.E.2d 1149,
1151 (Ind. 2008). Summary disposition, like summary judgment,
is a matter for appellate de novo review when the determinative
issue is a matter of law, not fact. Id. Summary disposition
should be granted only if “there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.” Ind. Post-Conviction Rule 1(4)(g). “We must resolve all
3
The Chronological Case Summery indicates that Carter’s writ of habeas corpus was filed on April 17, 2017.
However, the writ itself is dated March 27, 2017.
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doubts about facts, and the inferences to be drawn from the facts,
in the non-movant’s favor.” Allen v. State, 791 N.E.2d 748, 753
(Ind. Ct. App. 2003), trans. denied.
Komyatti v. State, 931 N.E.2d 411, 415–16 (Ind. Ct. App. 2010).
II. Revocation of Carter’s Parole
[7] Carter contends that the revocation of his parole was improper because the
evidence is insufficient to prove that he violated the terms of his parole. He also
contends that he was denied the opportunity to present certain evidence and to
call and question a particular witness during the parole revocation hearing. For
its part, the State contends that the trial court properly entered judgment in its
favor.
A. Sufficiency of the Evidence to Prove Parole Violation
[8] Carter claims that the evidence presented before the Parole Board was
insufficient to prove that he violated the terms of his parole. However, review
of the record reveals that Carter admitted that he violated the terms of his
parole. Specifically, Carter admitted that he violated the terms of his parole by
using marijuana. We believe, similar to revocation of probation, violation of a
single parole condition is sufficient to revoke parole. Cf. Hubbard v. State, 683
N.E.2d 618, 622 (Ind. Ct. App. 1997). Given Carter’s admission, we conclude
that the evidence is sufficient to justify the revocation of his parole.
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B. Admission of Evidence
[9] Carter also claims that the Parole Board erred by denying him the opportunity
to present a defense. Specifically, Carter argues that he should have been
permitted to introduce certain evidence and to call and question a particular
witness.4 “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 v. Jenkins,
268 Ind. 137, 143, 374 N.E.2d 496, 500 (1978) (citing Dowd v. Basham, 233 Ind.
207, 212, 116 N.E.2d 632, 635 (1954); Terry v. Byers, 161 Ind. 360, 363, 68 N.E.
596, 597–98 (1903)). Furthermore, “[e]rrors in the admission or exclusion of
evidence are to be disregarded as harmless error unless they affect the
substantial rights of a party.” Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct.
App. 2014) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)). “In
other words, we will find an error in the exclusion of evidence harmless if its
probable impact on the jury, in light of all of the evidence in the case, is
sufficiently minor so as not to affect the defendant’s substantial rights.” Id.
(citing Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999). cert. denied).
[10] Again, Carter admitted to violating the terms of his parole by using marijuana.
Given this admission, which again was sufficient to justify the revocation of his
parole, we believe that it is improbable that either the exclusion of the evidence
4
Both the evidence that Carter sought to introduced and the subject of the testimony of the witness Carter
sought to call related to whether Carter had an unauthorized change of residence. Neither had any relation
to whether he violated the conditions of his parole by using marijuana.
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that Carter sought to introduce or the testimony of the witness that Carter
wanted to question affected Carter’s substantial rights. As such, we conclude
that at most, the exclusion of said evidence was harmless. See id. Furthermore,
to the extent that Carter raises additional challenges regarding the validity of
the revocation of his parole, we conclude that such additional alleged errors are
also harmless given his admission.
[11] The judgment of the trial court is affirmed.
Robb, J., and Crone, J., concur.
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