Darryl Abron v. State of Indiana (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 12 2019, 10:33 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
Darryl Abron Curtis T. Hill, Jr.
Greencastle, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darryl Abron, December 12, 2019
Appellant, Court of Appeals Case No.
19A-MI-939
v. Appeal from the Putnam Superior
Court
State of Indiana, The Honorable Charles D. Bridges,
Appellee. Judge
Trial Court Cause No.
67D01-1901-MI-35
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019 Page 1 of 6
[1] Darryl Abron appeals the denial of his request for immediate release. We
affirm.
Facts and Procedural History
[2] In 2008, Abron was sentenced to twenty years, and in July 2016, he was
released to parole. On April 18, 2017, the State charged Abron with the new
offense of theft as a class A misdemeanor and later filed an information
enhancing the theft charge to a level 6 felony based on prior criminal history. A
parole violation warrant was issued and served on April 19, 2017. On July 19,
2017, Abron was sentenced for theft as a level 6 felony to the Marion County
Jail for 730 days and received credit for ninety-two actual days confined. On
April 17, 2018, Abron was discharged from the Marion County Jail and turned
over to the Department of Correction. On May 17, 2018, the parole board held
a hearing and issued a disposition indicating that Abron had a new conviction
and admitted to the violation and that he was assessed the balance of his
sentence.
[3] Abron submitted a Petition for Writ of Habeas Corpus in July 2018, which was
file-stamped in January 2019, alleging that the parole board violated his right to
a timely revocation hearing under Ind. Code § 11-13-3-10 and requesting his
immediate release from custody. The State filed a response and motion for
summary disposition arguing in part that Abron’s filing should be treated as a
petition for post-conviction relief and that his parole revocation hearing was not
untimely. The court granted the State’s motion and entered judgment against
Abron.
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Discussion
[4] Abron claims that he is entitled to immediate release. He states that the trial
court erred in finding his petition for writ of habeas corpus was a petition for
post-conviction relief, that he is not asking for remand, and that he is asking this
Court to decide the case on the merits. He asserts that he was denied a timely
revocation hearing under Ind. Code § 11-13-3-10 and that this Court, in Lawson
v. State, 845 N.E.2d 185 (Ind. Ct. App. 2006), did not correctly interpret Ind.
Code § 11-13-3-10 or determine the legislature’s intent. The State agrees that
Abron was permitted to file his request for release as a petition for writ of
habeas corpus but argues that the trial court had jurisdiction over the petition
and that this Court may address the merits of Abron’s argument. 1 It argues that
Abron’s parole revocation hearing was not untimely under Ind. Code § 11-13-3-
10 because he was not confined due solely to an alleged violation of parole and
remained incarcerated in the Marion County Jail for this theft conviction until
April 17, 2018.
[5] The primary rule in statutory construction is to ascertain and give effect to the
intent of the legislature. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001).
1
In Lawson, this Court stated:
Initially, we observe that in his writ of habeas corpus, Lawson challenged the revocation
of his probation and alleged that he was entitled to immediate release. Therefore, both
the post-conviction rules and habeas corpus statutes are applicable. Because neither party
asserts that the trial court erred when it treated Lawson’s writ of habeas corpus as a
petition for post-conviction relief, we will proceed to address the merits of the case.
845 N.E.2d at 186 (citations omitted).
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The best evidence of legislative intent is the language of the statute itself, and all
words must be given their plain and ordinary meaning unless otherwise
indicated by statute. Id.
[6] Ind. Code § 11-13-3-10(a) provides in part that “[a] parolee who is confined due
to an alleged violation of parole shall be afforded a parole revocation hearing
within sixty (60) days after the parolee is made available to the department by a
jail or state correctional facility . . . .” Ind. Code § 11-13-3-10(c) provides in
part that, if a parolee commits a new level 6 felony, “the parole board may
revoke the parole and order continuous imprisonment.” Ind. Code § 11-13-3-
10(e) provides that, “[u]nless good cause for the delay is established in the
record of the proceeding, the parole revocation charge shall be dismissed if the
revocation hearing is not held within the time established by subsection (a).”
[7] In Lawson, after Lawson was released to parole, he was charged with theft and
two counts of resisting law enforcement on March 31, 2004, a parole violation
warrant was served on him on June 2, 2004, he pled guilty on July 9, 2004, to
the theft and one count of resisting law enforcement as class D felonies, and the
court sentenced him to concurrent terms of two years for each conviction. 845
N.E.2d at 186. Lawson’s parole revocation hearing was held on October 15,
2004, and his parole was revoked. Id. On appeal, Lawson argued the parole
board did not hold his parole revocation hearing within sixty days of the
sentencing for his theft and resisting law enforcement convictions and thus the
revocation charge should have been dismissed pursuant to Ind. Code § 11-13-3-
10(e). Id. at 187. We found that, from the date of his sentencing until the
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parole revocation hearing, Lawson was confined both for an alleged violation
of his parole and as a result of the two-year sentence imposed for his theft and
resisting law enforcement convictions. Id. The Court held:
Indiana Code section 11-13-3-10 clearly requires that the revocation
hearing shall be held within 60 days if the parolee “is confined due
to an alleged violation of parole.”[2] Lawson would have been
confined regardless of the alleged parole violation as he was ordered
to serve concurrent terms of two years for his theft and resisting law
enforcement convictions. Accordingly, we cannot conclude that
Lawson was confined due solely to an alleged violation of parole.
Id. We also observed Ind. Code § 11-13-3-10(c) and that Lawson admitted to
committing two class D felonies. Id. at 187-188.
[8] We decline to find that this Court’s opinion in Lawson in 2006 was incorrectly
decided or does not reflect the intent of the legislature. See Fraley v. Minger, 829
N.E.2d 476, 492 (Ind. 2005) (noting that a judicial interpretation of a statute
accompanied by substantial legislative inaction for a considerable time may be
understood to signify legislative acquiescence and agreement with the judicial
interpretation).
[9] Abron was incarcerated on the new felony charge and the subsequent
conviction and sentence until April 17, 2018, and the parole board held a
2
At the time of the decision in Lawson, Ind. Code § 11-13-3-10(c) provided that, if a parolee committed a new
felony, “the parole board shall revoke the parole and order continuous imprisonment.” (Subsequently
amended by Pub. L. No. 179-2014, § 3 (Jul. 1, 2014)). The legislature has not made any change to Ind. Code
§ 11-13-3-10(a) since the decision in Lawson.
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revocation hearing on May 17, 2018. We conclude that Abron is not entitled to
immediate release.
[10] For the foregoing reasons, we affirm the trial court.
[11] Affirmed.
Baker, J., and Riley, J., concur.
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