William R. Evans v. Keith Butts (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 23 2015, 9:06 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
William R. Evans Gregory F. Zoeller
New Castle, Indiana Attorney General
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William R. Evans, December 23, 2015
Appellant-Defendant, Court of Appeals Case No.
33A01-1402-MI-61
v. Appeal from the Henry Circuit
Court
Keith Butts, The Honorable Kit C. Dean Crane
Appellee-Plaintiff Trial Court Cause No.
33C02-1310-MI-104
Vaidik, Chief Judge.
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Case Summary
[1] William Evans was convicted of rape in 1986 and released on parole in 2012.
Following a hearing, the parole board revoked his parole for four violations in
2013. Evans filed a petition claiming that because two of the violations were
improper, he was being illegally held in custody. However, even if those two
violations were improper, the other two violations support the revocation. We
therefore affirm the trial court’s denial of Evans’ petition and affirm.
Facts and Procedural History
[2] Evans, who was convicted of rape and five additional felonies in 1986, was
released on parole in April 2012. Relevant terms of his parole included: 1)
Rule 2 – notify your supervising parole officer of a change in your residence
address; and 2) Rule 10 – comply with all directives from your supervising
parole officer. The Parole Board also imposed the Parole Stipulations for Sex
Offenders, State Form 49108, which included the following relevant terms of
parole: 3) Rule 10(4) – no contact with any children, including your own; and
4) Rule 10(5) – no living within 1000 feet of a place where children could
reasonably be expected to congregate. The Indiana Parole Board imposed
Rules 10(4) and 10(5) without including a determination that he posed a risk to
minors.
[3] Evans was alleged to have violated the terms and conditions of his parole in
October 2012. Following a hearing, the parole board revoked Evans’ parole for
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multiple violations in December 2012, and he was incarcerated in the New
Castle Correctional Facility. Specifically, the parole board found that Evans
committed the following parole violations: 1) Rule 2 – failed to notify his
parole supervising officer of a change in his residence address; 2) Rule 10 –
failed to comply with his supervising officer’s directive that he not move to a
specific address in Fairfield, Ohio, where his girlfriend and daughter lived; 3)
Rule 10(4) – lived in a residence with six minor children; and 4) Rule 10(5) –
lived within 1000 feet of soccer fields where children could reasonably be
expected to congregate.
[4] In October 2013, Evans filed a habeas corpus petition alleging he was being
illegally held in custody by Keith Butts, superintendent of the correctional
facility, because his parole had been improperly revoked. Evans specifically
explained that Rules 10(4) and 10(5), the parole stipulations for sex offenders,
did not apply to him because the victim of his assault was an adult. Butts filed
a motion to dismiss Evans’ petition, which the trial court granted. Evans
appealed, and shortly after he filed his appellate brief, Butts filed a motion to
remand the case to the trial court for further proceedings in light of the Indiana
Supreme Court’s decision in Bleeke v. Lemmons, 6 N.E.3d 907 (Ind. 2014).
There, the Indiana Supreme Court concluded that Bleeke’s parole conditions
limiting his rights to interact with his children were not reasonably related to his
successful reintegration into the community. Id. at 917.
[5] On remand, Butts filed a motion for summary disposition. The trial court
properly treated Evans’ petition claiming that his parole had been improperly
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revoked as one for post-conviction relief. The post-conviction court explained
that pursuant to Bleeke, a determination whether Rules 10(4) and 10(5) were
reasonably related to Evans’ successful reintegration into the community would
require further evaluation and fact finding by the parole board. However, the
trial court concluded that such an evaluation was unnecessary in this case
because Evans also violated Parole Rules 2 and 10, which supported the
revocation of his parole. The trial court therefore denied Evans’ petition and
granted Butts’ motion for summary disposition. Evans appeals.
Discussion and Decision
[6] At the outset we note that Evans proceeds pro se. A litigant who proceeds pro se
is held to the rules of procedure that trained counsel is bound to follow. Smith
v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
dismissed. One risk a litigant takes when he proceeds pro se is that he will not
know how to accomplish all the things an attorney would know how to
accomplish. Id. When a party elects to represent himself, there is no reason for
us to indulge in any benevolent presumption on his behalf or to waive any rule
for the orderly and proper conduct of the appeal. Foley v. Mannor, 844 N.E.2d
494, 502 (Ind. Ct. App. 2006). In light of this standard, we further note that
although Evans raises seven issues in his appellate brief, we consolidate them
all into one: whether there is sufficient evidence to support the revocation of his
parole.
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[7] In Harris we held that a challenge to revocation of parole will be treated as a
petition for post-conviction relief. See Harris v. State, 836 N.E.2d 267, 272 (Ind.
Ct. App. 2005), trans. denied. As such, Evans bears the burden of establishing
relief by a preponderance of the evidence. Id. On appeal from the denial of
post-conviction relief, we will only disturb a post-conviction court’s decision
when the evidence is uncontradicted and leads to but one conclusion, and the
post-conviction court reached the opposite conclusion. Id.[8] The practice of releasing prisoners on parole is an integral part of the
penological system. Id. In Indiana, a prisoner is released on parole only upon
his agreement to certain conditions. Id. A parole agreement is a contract
between the prisoner and the State and may be subject to certain conditions
imposed at the time of the granting of parole. Id. at 272-73. Where conditions
have been imposed, the parolee is bound by them. Id. at 273. The parole board
has the power to determine whether prisoners serving an indeterminate
sentence should be released on parole and under what conditions. Id. The
conditions must be reasonably related to the parolee’s successful reintegration
into the community and not unduly restrictive of a fundamental right. Id. The
parole board has broad discretion in determining whether or not to revoke an
offender’s parole. Hawkins v. Jenkins, 374 N.E.2d 496, 500 (Ind. 1978).
[9] Here, the trial court concluded that Evans’ violation of Rules 2 and 10 alone
supported the revocation of his parole. Evans challenges neither the sufficiency
of the evidence to support his violation of these rules nor the revocation of his
parole based upon his violation of them. Further, because Evans’ parole was
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revoked on the basis of these two violations, we do not need to reach Evans’
Bleeke argument. The evidence does not lead unerringly and unmistakably to a
decision opposite that reached by the post-conviction court, and we find no
error in the post-conviction court’s denial of Evans’ petition and the grant of
Butts’ motion.
[10] Affirmed.
Bailey, J., and Crone, J., concur.
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