MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                            Jan 30 2020, 9:42 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
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estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEES
Anthony Padgett                                          Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Padgett,                                         January 30, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-MI-1092
        v.                                               Appeal from the Henry Circuit
                                                         Court
Keith Butts (Warden of                                   The Honorable Kit C. Dean Crane,
New Castle Correctional                                  Judge
Facility), et al.,                                       Trial Court Cause No.
Appellees-Respondents                                    33C02-1809-MI-159




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020             Page 1 of 9
[1]   On July 30, 2014, Anthony Padgett was released to parole for his conviction for

      Class C felony child molesting. Following a February 9, 2017, revocation

      hearing, the parole board found that Padgett had violated two conditions of his

      parole and thereby revoked it. Padgett subsequently filed a petition for writ of

      habeas corpus, which the trial court denied. Now, Padgett appeals the trial

      court’s denial, arguing that (1) his due process rights were violated during the

      parole revocation proceedings; (2) the trial court should have treated his

      petition for writ of habeas corpus as a petition for post-conviction relief; and (3)

      consequently, the trial court should have granted his petition for post-conviction

      relief because the conditions of his parole violated his constitutional rights.

      Finding that there was no due process violation but that the trial court should

      have treated Padgett’s petition for writ of habeas corpus as a petition for post-

      conviction relief, we reverse and remand for further proceedings.


                                                     Facts
[2]   Padgett has a long and storied history with the criminal justice system. He was

      convicted of Class C felony child molesting in March 1987 and again in August

      1995. In October 2005, he was once again convicted of Class C felony child

      molesting and was sentenced to an aggregate term of twenty years.


[3]   On July 30, 2014, Padgett was released to parole and was required to sign a

      conditional parole release agreement. Per the agreement’s stipulations, Padgett

      was not allowed to have contact with any minors and was not allowed to

      engage in an intimate relationship without prior approval. See generally


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 2 of 9
      Appellant’s App. Vol. II p. 10-11. Additionally, Padgett agreed to allow his

      “supervising officer or other authorized officials of the Department of

      Correction to visit [his] residence and place of employment at any reasonable

      time.” Id. at 9.


[4]   On December 30, 2016, two parole officers and the Indiana State Police

      conducted a search of Padgett’s home and discovered “a calendar with infants

      on it, over a dozen condoms and 2 bottles of personal lubricant[.]” Id. at 91.

      The officers then searched through Padgett’s phone and found numerous text

      messages sent by Padgett to a woman, telling her to “bring themself [sic] and

      their kids to his house.” Id. The officers called the woman, who told them that

      she and her children had been at Padgett’s home a few times. They then

      confiscated the phone and took Padgett into custody.


[5]   On January 3, 2017, the State alleged that Padgett had violated two conditions

      of his parole—namely, that Padgett had been in contact with minors and that

      he had engaged in an intimate relationship without prior approval. That same

      day, Padgett waived his right to a preliminary hearing and admitted to both

      parole violations. Padgett then changed his mind. After allowing Padgett to

      change his admission to a denial, the parole board conducted a final parole

      revocation hearing on February 9, 2017, following which it made findings of

      fact:


              Rule #10(4): Contact with Minors

                       [Padgett’s] Phone was searched and it was discovered on
                       12/30/2016 that a female friend per her own admittance
      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 3 of 9
                       had brought her children around [Padgett], not knowing his
                       crime. Text messages on [Padgett’s] phone show [Padgett]
                       asking her to bring the kids over with her.

              Rule #10(19): Unapproved Relationship

                       Per search of [Padgett’s] phone, [Padgett] had started a
                       relationship with a female co-worker, giving her money for
                       her kids Christmas and telling her that he loves her and
                       could not be happier than he is with her. [Padgett’s] co-
                       worker also has children under the age of 18 living with her.

              All of the above occurred while [Padgett] was a parolee.


      Id. at 17-18 (emphases omitted). On February 17, 2017, the parole board found

      that Padgett had violated the conditions of his parole and ordered that he be

      reincarcerated. His earliest possible release date is January 27, 2021.


[6]   On September 18, 2018, Padgett filed a petition for writ of habeas corpus,

      which the trial court denied on February 6, 2019. Then, on February 19, 2019,

      Padgett filed a motion to correct error, which the trial court also denied on

      April 3, 2019. Padgett now appeals.


                                   Discussion and Decision
[7]   Padgett raises three arguments on appeal: (1) his due process rights were

      violated during the parole revocation proceedings; (2) the trial court should

      have treated his petition for writ of habeas corpus as a petition for post-

      conviction relief; and (3) consequently, the trial court should have granted his

      petition for post-conviction relief because the conditions of his parole violated

      his constitutional rights.


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 4 of 9
                                                  Due Process

[8]   First, Padgett argues that his due process rights were violated during the parole

      revocation proceedings. Padgett only vaguely contends that “[h]e was not

      afforded those [due process] rights when the Indiana Parole Board held his

      revocation hearing.” Appellant’s Br. p. 10. “Whether the requirements of due

      process have been satisfied is a question of law; therefore, we review the issue

      de novo.” Art Hill, Inc. v. Review Bd. of the Ind. Dep’t of Workforce Dev., 898

      N.E.2d 363, 367 (Ind. Ct. App. 2008).


[9]   “As a general rule, defendants facing potential parole revocation are entitled to

      a number of procedural due process rights[.]” Komyatti v. State, 931 N.E.2d 411,

      416 (Ind. Ct. App. 2010). Such rights include:


              written notice of the parole violation charges; disclosure of the
              evidence against the parolee; an opportunity to be heard in person
              and to present evidence; the right to confront and cross-examine
              adverse witnesses; a “neutral and detached” parole hearing board;
              and a written statement by the board of the evidence relied upon
              and the reasons for revoking parole. Parolees also are entitled to a
              two-stage revocation procedure: (1) a preliminary hearing to
              determine whether there is probable cause to believe that the
              parolee has committed acts that would constitute a violation of
              parole conditions; and (2) a final revocation hearing prior to the
              final decision on revocation to consider whether the facts as
              determined warrant revocation.


      Id. (internal citations omitted); see also Morrissey v. Brewer, 408 U.S. 471, 489

      (1972).




      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 5 of 9
[10]   Here, Padgett waived his right to a preliminary hearing on January 3, 2017. See

       Appellant’s App. Vol. II p. 40. While the parole board later allowed Padgett to

       change his admission to a denial, there is no dispute—and Padgett does not

       argue to the contrary—that Padgett waived his right to this hearing. On the

       waiver form, Padgett even acknowledged that he “specifically preserve[d]” the

       due process rights for the final revocation hearing that he was waiving for the

       preliminary hearing. Id. Accordingly, there was no due process violation in this

       respect.


[11]   Then, with regards to the final revocation hearing, Padgett was given the

       opportunity to speak on his own behalf, to confront and cross-examine adverse

       witnesses, to present evidence, and to have his case heard before a neutral and

       detached parole hearing board. In its findings of fact, the parole board noted

       that Padgett had been provided notice of the alleged violations and of the date

       of the final revocation hearing. See id. at 38-39. Further, the parole board cited

       multiple documents upon which it relied as evidence to determine that Padgett

       had, in fact, violated the conditions of his parole. Such evidence included the

       parole release agreement, the parole violation report, the parole case notes, the

       preliminary hearing waiver, the preliminary hearing minutes, alcohol test

       results, drug test results, documents detailing Padgett’s pleas, and more. Id. at

       38.


[12]   In other words, at every step of the proceedings, the parole board safeguarded

       Padgett’s due process rights. Though Padgett claims that he was entitled to

       “more in this case,” appellant’s br. p. 10, we have difficulty identifying exactly

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 6 of 9
       what more the parole board could have done to ensure that his due process

       rights would be protected. Accordingly, we find that there was no due process

       violation.


                                Habeas Corpus v. Post-Conviction Relief

[13]   Next, Padgett argues that the trial court should have treated his petition for writ

       of habeas corpus as a petition for post-conviction relief.


[14]   Pursuant to Indiana Code section 34-25.5-1-1, “[e]very 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.” However, trial courts do not have jurisdiction

       to entertain petitions for writ of habeas corpus if the petitioner is serving time

       under a proper commitment, his sentence has not expired, he has not been

       denied good time or credit time, and he does not seek a correction of the

       beginning or end of his sentence. Hardley v. State, 893 N.E.2d 740, 742-43 (Ind.

       Ct. App. 2008).


[15]   Here, Padgett is serving time under a proper commitment (he does not

       challenge the nature of his conviction or sentence), his current sentence has not

       expired (and will not expire until, at the earliest, January 27, 2021), he has not

       been denied good time or credit time, and he does not seek a correction of the

       beginning or end of his sentence. Padgett “is challenging the revocation of his

       parole and is not claiming that he is entitled to immediate release, which is a

       requirement for habeas relief.” Grayson v. State, 58 N.E.3d 998, 1001 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 7 of 9
       App. 2016). The State even concedes that “the trial court did not have authority

       to entertain the petition for a writ of habeas corpus.” Appellee’s Br. p. 8.


[16]   In sum, we find that Padgett incorrectly filed a petition for writ of habeas

       corpus, and subsequently, that the trial court did not have the authority to hear

       his petition. The proper remedy is to “recognize substance over form” and treat

       Padgett’s erroneous petition for writ of habeas corpus as a petition for post-

       conviction relief. Hardley, 893 N.E.2d at 743; see also Ind. Post-Conviction Rule

       1(1)(a)(5).


[17]   Pursuant to Indiana Post-Conviction Rule 1(1)(c), the trial court hearing the

       petition for writ of habeas corpus “shall transfer the cause to the court in which

       the conviction took place, and the latter court shall treat it as a petition for relief

       under this Rule.” Padgett is currently incarcerated in the New Castle

       Correctional Facility in Henry County, so his case should be transferred to the

       Sullivan County trial court to rule on the merits of Padgett’s petition for post-

       conviction relief.


                                            Constitutional Rights

[18]   Finally, Padgett argues that the trial court should have granted his petition for

       post-conviction relief because the conditions of his parole violated his

       constitutional rights. Because we have already decided that the trial court

       should have treated Padgett’s petition for writ of habeas corpus as a petition for

       post-conviction relief and transferred it to the proper court, the issues that

       Padgett raises are not yet ripe for review. It will be for the Sullivan County trial


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 8 of 9
       court to rule on Padgett’s petition. Any argument by the State that we should

       proceed and dismiss the merits of Padgett’s constitutional claims as if they were

       part of a petition for post-conviction relief is premature, at best.


[19]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1092 | January 30, 2020   Page 9 of 9
