MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 19 2017, 10:34 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
Derek Carter                                             Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Derek Carter,                                            December 19, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         33A01-1707-MI-1668
        v.                                               Appeal from the Henry Circuit
                                                         Court
Keith Butts, Warden of the New                           The Honorable Kit C. Dean Crane,
Castle Correctional Facility,                            Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         33C02-1704-MI-38



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017         Page 1 of 7
                                              Case Summary
[1]   Appellant-Petitioner Derek Carter admitted to violating the terms of his parole

      and his parole was consequently revoked. Carter then filed a writ of habeas

      corpus. The trial court treated Carter’s challenge as a petition for post-

      conviction relief1 and granted summary disposition in favor of the State.2

      Carter appeals, arguing that (1) the evidence is insufficient to prove that he

      violated the terms of his parole, and (2) he was denied the opportunity to

      present certain evidence and to call and question a particular witness during the

      parole revocation hearing. The record reveals that Carter admitted to violating

      the terms of his parole. As such, we conclude that Carter’s challenge to the

      sufficiency of the evidence to prove his violation is without merit. Further,

      given Carter’s admission, any error relating to his claimed lack of an

      opportunity to present a defense is at most harmless. We therefore affirm.



                              Facts and Procedural History
[2]   Carter is currently incarcerated at the New Castle Correctional Facility and is

      serving a twenty-year sentence for Class B felony robbery. On September 8,




      1
        In treating Carter’s challenge as a petition for post-conviction relief, the trial court appeared to recognize
      that while Carter stated that he was being unlawfully incarcerated and was entitled to immediate release,
      Carter was actually challenging the propriety of the revocation of his parole. Stated differently, the trial court
      appeared to realize that while Carter argues that the revocation of his parole was improper and, as a result, he
      should be released from incarceration, he does not argue that his sentence has expired or that he should no
      longer be subject to the terms of his parole.
      2
        Appellee-Respondent Keith Butts is named in the underlying proceedings in his position as a representative
      of the State of Indiana.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017              Page 2 of 7
      2015, Carter signed a conditional parole release agreement. This agreement

      provided that Carter understood that certain actions, including using illegal

      drugs, would qualify as a violation of the conditions of his parole. He was

      mandatorily paroled on February 13, 2016.


[3]   While on parole, Carter provided a positive drug screen on May 20, 2016.

      Carter admitted that he had used marijuana prior to submitting to the drug

      screen. On June 16, 2016, Carter was found to be living at an unapproved

      address. He had not notified his parole agent of any change in address. A week

      later, during an unannounced visit by parole staff, a bag containing marijuana

      was found in the home where Carter was staying. Carter was home alone at

      the time. Carter was subsequently charged with violating the terms of his

      parole by testing positive for marijuana, possession of marijuana, and an

      unauthorized change of residence. Carter waived his right to a preliminary

      hearing on all three allegations.


[4]   On August 11, 2016, Carter waived his right to forty-eight-hour notice of his

      parole hearing. Carter’s hearing was held later that day. During his hearing,

      Carter denied having an unauthorized change of residence. However, he

      admitted that he had violated the terms of his parole by using marijuana. The

      Parole Board found him guilty of violating the terms of his probation by both

      using marijuana and having an unauthorized change of residence. As a result

      of this finding, the Parole Board revoked Carter’s parole and “assessed the

      balance of [his] sentence.” Appellee’s App. Vol. II, p. 30. His current projected

      release date is March 17, 2022.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017   Page 3 of 7
[5]   In March or April of 2017, Carter filed a writ of habeas corpus, challenging the

      revocation of his parole.3 Carter alleged that he was denied his due process

      rights because he received untimely notice of the parole revocation hearing.

      Carter also alleged that he was denied the opportunity to present certain

      evidence and to call and question a particular witness during the parole

      revocation hearing. The State subsequently filed a motion for summary

      disposition, arguing that Carter’s challenge should be treated as a petition for

      post-conviction relief. On June 26, 2017, the trial court issued an order

      granting summary disposition in favor of the State. This appeal follows.



                                 Discussion and Decision
                                      I. Standard of Review
[6]   Carter appeals from the summary disposition of his claim that his parole was

      improperly revoked.


              We review the grant of a motion for summary disposition in
              post-conviction proceedings on appeal in the same way as a civil
              motion for summary judgment. Norris v. State, 896 N.E.2d 1149,
              1151 (Ind. 2008). Summary disposition, like summary judgment,
              is a matter for appellate de novo review when the determinative
              issue is a matter of law, not fact. Id. Summary disposition
              should be granted only if “there is no genuine issue of material
              fact and the moving party is entitled to judgment as a matter of
              law.” Ind. Post-Conviction Rule 1(4)(g). “We must resolve all



      3
       The Chronological Case Summery indicates that Carter’s writ of habeas corpus was filed on April 17, 2017.
      However, the writ itself is dated March 27, 2017.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017       Page 4 of 7
               doubts about facts, and the inferences to be drawn from the facts,
               in the non-movant’s favor.” Allen v. State, 791 N.E.2d 748, 753
               (Ind. Ct. App. 2003), trans. denied.


      Komyatti v. State, 931 N.E.2d 411, 415–16 (Ind. Ct. App. 2010).


                           II. Revocation of Carter’s Parole
[7]   Carter contends that the revocation of his parole was improper because the

      evidence is insufficient to prove that he violated the terms of his parole. He also

      contends that he was denied the opportunity to present certain evidence and to

      call and question a particular witness during the parole revocation hearing. For

      its part, the State contends that the trial court properly entered judgment in its

      favor.


          A. Sufficiency of the Evidence to Prove Parole Violation
[8]   Carter claims that the evidence presented before the Parole Board was

      insufficient to prove that he violated the terms of his parole. However, review

      of the record reveals that Carter admitted that he violated the terms of his

      parole. Specifically, Carter admitted that he violated the terms of his parole by

      using marijuana. We believe, similar to revocation of probation, violation of a

      single parole condition is sufficient to revoke parole. Cf. Hubbard v. State, 683

      N.E.2d 618, 622 (Ind. Ct. App. 1997). Given Carter’s admission, we conclude

      that the evidence is sufficient to justify the revocation of his parole.




      Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017   Page 5 of 7
                                      B. Admission of Evidence
[9]    Carter also claims that the Parole Board erred by denying him the opportunity

       to present a defense. Specifically, Carter argues that he should have been

       permitted to introduce certain evidence and to call and question a particular

       witness.4 “It has long been the rule in Indiana that the discretion of the Parole

       Board is not subject to supervision or control of the courts.” Hawkins v. Jenkins,

       268 Ind. 137, 143, 374 N.E.2d 496, 500 (1978) (citing Dowd v. Basham, 233 Ind.

       207, 212, 116 N.E.2d 632, 635 (1954); Terry v. Byers, 161 Ind. 360, 363, 68 N.E.

       596, 597–98 (1903)). Furthermore, “[e]rrors in the admission or exclusion of

       evidence are to be disregarded as harmless error unless they affect the

       substantial rights of a party.” Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct.

       App. 2014) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)). “In

       other words, we will find an error in the exclusion of evidence harmless if its

       probable impact on the jury, in light of all of the evidence in the case, is

       sufficiently minor so as not to affect the defendant’s substantial rights.” Id.

       (citing Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999). cert. denied).


[10]   Again, Carter admitted to violating the terms of his parole by using marijuana.

       Given this admission, which again was sufficient to justify the revocation of his

       parole, we believe that it is improbable that either the exclusion of the evidence




       4
         Both the evidence that Carter sought to introduced and the subject of the testimony of the witness Carter
       sought to call related to whether Carter had an unauthorized change of residence. Neither had any relation
       to whether he violated the conditions of his parole by using marijuana.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017          Page 6 of 7
       that Carter sought to introduce or the testimony of the witness that Carter

       wanted to question affected Carter’s substantial rights. As such, we conclude

       that at most, the exclusion of said evidence was harmless. See id. Furthermore,

       to the extent that Carter raises additional challenges regarding the validity of

       the revocation of his parole, we conclude that such additional alleged errors are

       also harmless given his admission.


[11]   The judgment of the trial court is affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1707-MI-1668 | December 19, 2017   Page 7 of 7
