Samuel L. Hobbs, Jr. v. Keith Butts

FILED
08/31/2017, 10:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Samuel L. Hobbs, Jr. Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Frances H. Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel L. Hobbs, Jr., August 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
33A01-1704-MI-734
v. Appeal from the Henry Circuit
Court
Keith Butts, The Honorable Kit C. Dean Crane,
Appellee-Respondent. Judge
Trial Court Cause No.
33C02-1703-MI-19
Bailey, Judge.
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Case Summary
[1] Pro-se Appellant Samuel L. Hobbs, Jr. (“Hobbs”) appeals the trial court’s
summary disposition of his petition for a writ of habeas corpus. We affirm.
Issues
[2] Hobbs presents five issues for review, which we consolidate and restate as the
following two:
I. Whether the trial court erroneously treated the petition as
one for post-conviction relief; and
II. Whether Hobbs is entitled to habeas relief because his sex
offender sentence had been discharged and he had no
parole obligation at the time of the revocation proceedings.
Facts and Procedural History
Cause No. 12
[3] On January 12, 2006, a jury convicted Hobbs of Residential Entry, Battery, and
Criminal Deviate Conduct under Cause Number 18C05-0506-FA-12 (“Cause
12”). He was sentenced to three years, one year, and twenty years, respectively,
with the Residential Entry and Battery sentences concurrent, but consecutive to
the Criminal Deviate Conduct sentence. Accordingly, Hobbs received an
aggregate sentence of twenty-three years. His convictions and sentence were
affirmed on direct appeal. Hobbs v. State, No. 18A04-0602-CR-95 (Ind. Ct. App.
Jan. 24, 2007).
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[4] On July 19, 2007, Hobbs filed a petition for post-conviction relief and alleged
that he had been denied the effective assistance of trial counsel. His petition
was denied on December 28, 2010; the denial was affirmed on appeal. Hobbs v.
State, No. 18A04-1101-PC-46 (Ind. Ct. App. Nov. 7, 2011).
[5] On July 23, 2014, Hobbs filed a petition for modification of his sentence
pursuant to Indiana Code Section 35-38-1-17. The petition was denied on
August 11, 2014, and Hobbs appealed. A panel of this Court affirmed the
denial. Hobbs v. State, No. 18A05-1408-CR-394 (Ind. Ct. App. Jan. 29, 2015).
Cause No. 16
[6] Hobbs had previously been convicted of Theft in the Delaware Circuit Court, in
Cause Number 18C04-0501-FD-16 (“Cause 16”), and was on probation when
he committed Residential Entry, Battery, and Criminal Deviate Conduct.
Hobbs was found to have violated his probation in Cause 16 when he
committed new offenses. He was remanded to the Indiana Department of
Correction (“the DOC”) to serve his two-year sentence for Theft, consecutive to
the sentences imposed in Cause 12.
Course of Proceedings
[7] On December 18, 2006, Hobbs completed his sentence for Residential Entry in
Cause 12. On the following day, he began serving his sentence for Criminal
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Deviate Conduct. On March 21, 2013, Hobbs entered parole status1 under
Cause 12, such that his period of parole would run while he was imprisoned on
the sentence in Cause 16.2 As a convicted sex offender, Hobbs was subject to a
period of parole of up to ten years.3
[8] On March 22, 2013, Hobbs began serving his sentence under Cause 16. The
Cause 16 sentence was discharged on December 21, 2013. Having been
discharged on the Residential Entry, Battery, and Theft sentences, Hobbs left
prison subject only to parole supervision for the sex offense.
[9] On April 16, 2014, Hobbs violated his parole. He was imprisoned, but was
again released to parole on May 28, 2015. On October 15, 2015, Hobbs
violated parole. His parole was again revoked.
[10] On March 2, 2017, Hobbs filed a petition for a writ of habeas corpus together
with a supporting brief. He alleged that the parole revocation occurred after his
maximum release date and thus, he was wrongfully imprisoned. On March 27,
2017, the State filed a motion for summary disposition together with a
1
Parole is “the release of a prisoner from imprisonment before the full sentence has been served.” Harris v.
State, 762 N.E.2d 163, 167 (Ind. Ct. App. 2002). “While on parole, the prisoner remains in the legal custody
of the parole agent and warden of the prison from which he is paroled until the expiration of the maximum
term specified in his sentence or until discharged as provided by law.” Overlade v. Wells, 127 N.E.2d 686, 690
(Ind. 1955). Although parole is an “amelioration of punishment,” it is, in legal effect, still imprisonment. Id.
at 691.
2
See Mills v. State, 840 N.E.2d 354, 359 (Ind. Ct. App. 2006) (recognizing that an offender may be partially
serving his parole for one offense while serving another sentence).
3
Ind. Code § 35-50-6-1(d).
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supporting brief. On the same day, the trial court denied Hobbs’ petition,
which it treated as a petition for post-conviction relief. This appeal ensued.
Discussion and Decision
Classification of Petition
[11] Hobbs asserts that the State could not legally incarcerate him after December
21, 2013, the date of his discharge on Cause 16. Indiana Code Section 34-25.5-
1-1 provides:
Every 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.
“One is entitled to habeas corpus only if he is entitled to his immediate release
from unlawful custody.” Partlow v. Superintendent, Miami Correctional Facility,
756 N.E.2d 978, 980 (Ind. Ct. App. 2001), superseded by statute on unrelated issue
as stated in Paul v. State, 888 N.E.2d 818, 826 (Ind. Ct. App. 2008), trans. denied.
Hobbs’ petition for a writ of habeas corpus alleges that he is being unlawfully
imprisoned because his sentence was discharged and he was not then on parole
subject to revocation.
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[12] Before reaching the merits of Hobbs’ petition,4 the trial court determined that
the petition should be treated as one for post-conviction relief, as follows:
The Court construes Hobbs Jr.’s petition as a petition for post-
conviction relief. Hardley v. State, 893 N.E.2d 740, 743 (Ind. Ct.
App. 2008) (explaining that a challenge to the revocation of
parole is a petition for post-conviction relief).
An action for post-conviction relief may be decided by summary
disposition on the pleadings. Rule 1, §§ 4(f) and 4(g), Indiana
Rules of Procedure for Post-Conviction Remedies; Diaz v. State,
753 N.E.2d 724, 727 (Ind. Ct. App. 2001).
(App. at 5.)
[13] Hobbs argues that he has steadfastly maintained his entitlement to immediate
discharge and his petition was not one for post-conviction relief and thus, the
petition should not have been decided by the summary disposition procedure of
Post-Conviction Rule 1(4)(g):
The 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. The court may ask for oral
argument on the legal issue raised. If an issue of material fact is
4
At first blush, it appears that the trial court summarily dismissed the petition. Nevertheless, contrary to this
assertion, the trial court addressed the merits of Hobbs’ petition, calculated the term of his parole, and
ultimately determined that Hobbs was still subject to punishment for the sex offense conviction.
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raised, then the court shall hold an evidentiary hearing as soon as
reasonably possible.
[14] Hobbs’ petition did not challenge the validity of his 2006 conviction or
sentence; nor did he allege that the revocation was obtained without sufficient
evidence or due process of law. It thus appears that he appropriately captioned
his claim as one for habeas corpus.5 However, we need not decide whether the
trial court properly determined that Hobbs’ petition was subject to summary
disposition under the post-conviction rule, because Hobbs has asked that we
decide the merits of his case. See Partlow, 756 N.E.2d at 982 (“we need not
reach the issue of whether Partlow was entitled to a hearing on his properly-
denominated petition for writ of habeas corpus because Partlow requests that
we decide the merits of this case.”) We, like the Partlow Court, will proceed to
address the merits notwithstanding the trial court’s classification of the petition
as one for post-conviction relief.
Merits of Petition for a Writ of Habeas Corpus
[15] In ruling on the merits of Hobbs’ petition, the trial court made the following
findings of fact and conclusions:
5
The trial court stated, in reliance upon Hardley v. State, 893 N.E.2d 740 (Ind. Ct. App. 2008), that a
challenge to the revocation of parole is a petition for post-conviction relief. In Hardley, the petitioner
challenged the revocation of parole by alleging a lack of notice of a violation but did not argue that he was no
longer subject to DOC authority. We do not read Hardley so broadly as to provide that any habeas corpus
petition relative to parole revocation amounts to a petition for post-conviction relief.
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Hobbs Jr. is challenging the revocation of his parole because he
alleges that his parole revocation occurred after his maximum
release date.
Hobbs Jr. entered parole status under Cause Number 18C05-
0506-FA-12 (“Cause 12”) for the criminal deviate conduct
conviction on March 21, 2013.
Thereafter, on March 22, 2013, Hobbs Jr. began serving his
sentence under Cause Number 18C04-0501-FD-16 (“Cause 16”).
This sentence was discharged on December 21, 2013. This did
not discharge either the sentences or the other parole obligations
under Cause 12.
On December 21, 2013, Hobbs began serving his up to ten year
parole under Cause 12, a qualifying sex offense.
On April 16, 2014, Petitioner violated his parole. At the time of
this violation Petitioner was still serving his ten year parole
obligations under Cause 12.
On May 28, 2015, Petitioner was released on parole under Cause
12. On October 15, 2015, Petitioner violated his parole while
still serving his ten year parole obligation under Cause 12.
Accordingly, Hobbs Jr. is not entitled to immediate release and
his parole was properly revoked because he was still on parole
when he admittedly violated that parole.
(App. at 6.)
[16] Pursuant to Indiana Code Section 35-50-6-1, a felon is released to either parole
or probation. With respect to any given sentence imposed for a felony, a person
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is in one of four stages. Hannis v. Deuth, 816 N.E.2d 872, 877 (Ind. Ct. App.
2004). First, he is waiting to start serving the sentence; second, he is serving the
sentence; third, he is on parole on the sentence; and fourth, he is discharged
from the sentence. Id. To be entitled to release, Hobbs would need to show
that he had been discharged from the Criminal Deviate Conduct sentence.
[17] On appeal, the parties herein do not dispute factual events; they disagree as to
whether those facts culminated in a sentence discharge. An issue presented on
appeal is a pure question of law when the question does not require reference to
extrinsic evidence, inferences drawn from that evidence, or the consideration of
credibility questions. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). This
is such a question, which we review de novo. See Norris v. State, 896 N.E.2d
1149, 1151 (Ind. 2008).
[18] Hobbs argues: the State was required, pursuant to Indiana Code Section 35-50-
6-1, to “release” Hobbs to formal parole on Cause 12 on March 21, 2013, the
date of reaching mandatory parole status; a notation in the DOC computer
system of parole eligibility did not effect this “release”; instead, a “release” is to
be accomplished by his signing a State Form 23R;6 when the State failed to
effect a “release” to parole, Hobbs was “turned over” to begin serving his
sentence in Cause 16 free of a parole obligation in Cause 12; or “at a
6
This is a Conditional Parole Release Agreement.
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minimum,” his parole supervision was suspended until after he served his
consecutive sentence under Cause 16. Appellant’s Brief at 17, 28.
[19] Hobbs has not provided authority for the proposition that failure to “release”
him from prison on March 21, 2013 via obtaining his signature on a State Form
23R effected a discharge of the sentence in Cause 12. Moreover, he ignores the
requirement of sex-offender parole for up-to ten years when he suggests that a
temporary suspension would have provided him some relief.
[20] Indiana Code Section 35-50-6-1(d) provides in relevant part, “[w]hen a sex
offender (as defined in IC 11-8-8-4.5) completes the sex offender’s fixed term of
imprisonment, less credit time earned with respect to that term, the sex offender
shall be placed on parole for not more than ten (10) years.” An offender
“released on parole remains on parole from the date of release until the person’s
fixed term expires, unless the person’s parole is revoked or the person is
discharged from that term by the parole board.” Ind. Code § 35-50-6-1(b). An
offender “whose parole is revoked shall be imprisoned for all or part of the
remainder of the person’s fixed term.” Ind. Code § 35-50-6-1(c).
[21] As for his contention that the Parole Board essentially “turned over” and
discharged his sentence by failing to timely present him with State Form 23R,
Hobbs supports his argument by directing our attention to Meeker v. Ind. Parole
Bd., 794 N.E.2d 1105 (Ind. Ct. App. 2003), trans. denied. Meeker was serving
two concurrent sentences following his convictions for drug dealing in 1991,
and was thereafter released to parole in 1995. See id. at 1106. While on parole,
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he was convicted of alcohol-related crimes in 1996 and sentenced to serve the
remainder of his 1991 sentence. While Meeker was incarcerated on the 1991
drug sentence, the Parole Board voted that he should be “turned over to another
commitment” on July 21, 1998 and used the phrase in its revocation form. Id.
at 1107.
[22] On October 12, 2000, Meeker was released to parole after serving the five-year
sentence less the applicable credit time. The dealing convictions were used as
the basis for Meeker’s parole. After Meeker was convicted of carrying a firearm
without a license in 2001, his parole was revoked. The Parole Board then
reinstated the remaining sentence on the 1991 drug dealing conviction.
[23] On appeal, a panel of this Court determined that the “turn over” by the Parole
Board amounted to a discharge from Meeker’s dealing sentence and that
Meeker could not again be required to serve the remainder of his dealing
sentence later. As there was no statutory or common law definition of “turn
over,” the Court construed the phrase against the State. Id. at 1109.
[24] Subsequent application of Meeker has focused on whether the Parole Board used
the words “turned over.” A “turn-over” eliminating a parole obligation occurs
when the Board explicitly states such and has the intent to discharge the
sentence. See Baldi v. State, 908 N.E.2d 639, 642 (Ind. Ct. App. 2009) (holding
that a sentence was not discharged where there was no use of the phrase “turn
over” or expression of intent to discharge the sentence). See also Pallett v. State,
901 N.E.2d 611, 614 (Ind. Ct. App. 2009) (Meeker inapplicable where no
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expressed intent by Parole Board to discharge a sentence and the vote form
listing potential actions by the Parole Board did not show “Granted Turnover”
option checked ), trans. denied, and Mills, 840 N.E.2d at 358 (no evidence was
presented that the Parole Board took action to discharge or “turn over” a
sentence).
[25] Hobbs has not directed us to any facts of record that indicate the Parole Board
intended to discharge his sentence on the sex offense. He does not point to any
“turn over” language used by the Parole Board. Instead, he baldly asserts that
no vote by the Parole Board was required in his case. However, he fails to
support this assertion with citation to relevant authority. Hobbs has not shown
that his Criminal Deviate Conduct sentence has been discharged.
Conclusion
[26] The record does not demonstrate that Hobbs’ sentence for Criminal Deviate
Conduct was discharged, suspended, or “turned over” to a new commitment by
the Parole Board. He was on parole, serving an up-to-ten-year term, when his
parole was revoked. Thus, Hobbs did not show he is being illegally restrained
and the trial court did not err when it denied Hobbs’ petition for a writ of habeas
corpus.
[27] Affirmed.
Baker, J., and Altice, J., concur.
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