Samuel L. HOBBS, Jr., Appellant-Petitioner, v. Keith BUTTS, Appellee-Respondent.
Court of Appeals Case No. 33A01-1704-MI-734
Court of Appeals of Indiana
August 31, 2017
77 N.E.3d 1246
To suddenly deny Kirby of the opportunity to attend his son‘s activities for no reason other than his prior conviction is excessive. As such, we are persuaded that this factor favors treating the effects of the Statute as punitive as applied to Kirby.
Conclusion
After considering each of the above-discussed factors, we conclude that the Statute is unconstitutional as applied to Kirby because it amounts to retroactive punishment in violаtion of the Ex Post Facto Clause. Having reached this conclusion, we need not consider whether the Statute violates Kirby‘s due process interest in the care, custody, and control of his son, or is unconstitutionally vague.
The judgment of the post-conviction court is reversed only as to the enforcement of thе Unlawful Entry Statute.
Baker, J., and Mathias, J., concur.
APPELLANT PRO SE: Samuel L. Hobbs, Jr., New Castle, Indiana
ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, Indiana
Bailey, Judge.
Case Summary
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
Hobbs presents five issues for review, which we consolidate and rеstate as the following two:
- Whether the trial court erroneously treated the petition as one for post-conviction relief; and
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 revoсation proceedings.
Facts and Procedural History
Cause No. 12
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, 2007 WL 166209 (Ind. Ct. App. Jan. 24, 2007).
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, 2011 WL 5319910 (Ind. Ct. App. Nov. 7, 2011).
On July 23, 2014, Hobbs filed a petition for modification of his sentence pursuant to
Cause No. 16
Hоbbs 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
Course of Proceedings
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 Deviate Conduct. On March 21, 2013, Hobbs entered parole status1 undеr 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
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.
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 аgain revoked.
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 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
Hobbs asserts that the State could not legally incarcerate him after December 21, 2013, the date of his discharge on Cause 16.
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.
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 Procedurе for Post-Conviction Remedies; Diaz v. State, 753 N.E.2d 724, 727 (Ind. Ct. App. 2001). (App. at 5.)
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 оral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.
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
In ruling on the merits of Hobbs’ petition, the trial court made the following findings of fact and conclusions:
Hobbs Jr. is challenging the revocation of his parole because he аlleges 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.)
Pursuant to
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).
Hobbs argues: the State was required, pursuant to
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 sоme relief.
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, 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.
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 conviсted 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.
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.
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 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 dischargе or “turn over” a sentence).
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 wаs 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
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
Affirmed.
Baker, J., and Altice, J., concur.