MEMORANDUM DECISION
ON REHEARING
                                                               Feb 05 2015, 10:38 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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 Temple                                            Gregory F. Zoeller
New Castle, Indiana                                       Attorney General of Indiana
                                                          Kathy Bradley
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

William Temple,                                           February 5, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          33A01-1408-MI-336
        v.                                                Appeal from the Henry Circuit
                                                          Court.
                                                          The Honorable Kit C. Dean Crane,
New Castle Correctional Facility,                         Judge.
Appellee-Plaintiff                                        Cause No. 33C02-1209-MI-110




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1408-MI-336 | February 5, 2015   Page 1 of 5
[1]   In our prior memorandum decision in this case, we reversed and remanded

      because the case had not been transferred to the Marion Superior Court as an

      earlier panel of this Court had ordered. Temple v. State, No. 33A01-1211-MI-

      533 (Ind. Ct. App. July 3, 2013) [“Temple I”]. However, we inadvertently erred

      in our research process and failed to discover that a decision on rehearing had

      reversed the requirement of the transfer to the Marion Superior Court. Temple

      v. State, No. 33A01-1211-MI-533 (Ind. Ct. App. Sept. 20, 2013) [“Temple II”].

      As a result, we grant the State’s petition for rehearing and will now consider the

      merits of Temple’s arguments.


[2]   Temple appeals from the denial of his petition for post-conviction relief.1 He

      argues that the Parole Board erroneously revoked his parole. The underlying

      facts, as previously described by this Court, are as follows:

              In 2007, Temple was sentenced to ten years on a conviction of child
              molesting, as a Class C felony, and he was released on parole in
              January 2011. In October 2011, Temple was arrested and charged
              with failure to register as a sex offender. And in February 2012,
              Temple pleaded guilty to failure to register as a sex offender and was
              sentenced accordingly.


              Thereafter, on March 23, Temple verified that he had received a form
              entitled “Notification of Parole Violation Hearing,” which notified
              him that he was accused of violating the following rule of his Parole
              Release Agreement: “# 7 Criminal Conduct.” Appellant’s App. at 1.




      1
        Although Temple titled his motion “Petition for Writ of State Habeas Corpus Relief,” this Court ordered
      that his petition be treated as a petition for post-conviction relief. Temple I, at *2.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-MI-336 | February 5, 2015           Page 2 of 5
              Temple pleaded guilty at the hearing on March 29, and his parole was
              revoked.


              On September 6, 2012, Temple, pro se, filed a “Petition for Writ of
              State Habeas Corpus Relief” against the Superintendent of the New
              Castle Correctional Facility wherein he sought “immediate discharge
              from arbitrary revocation of parole, and all other just and proper relief
              in the premises.” Id. at 16. The Superintendent filed a motion to
              dismiss the petition, and Temple filed a motion for default judgment.
              On October 24, the trial court granted the motion to dismiss, and
              Temple filed a motion to correct error. The trial court denied
              Temple’s motion to correct error.


[3]   Temple I, at *1. On remand, on November 19, 2013, the Superintendent of the

      New Castle Correctional Facility filed a motion for summary disposition. On

      July 21, 2014, the trial court granted the motion for summary disposition and

      denied Temple’s petition for post-conviction relief. Temple now appeals.


[4]   We apply a de novo standard of review to a trial court’s order granting a

      motion for summary disposition in post-conviction proceedings. Komyatti v.

      State, 931 N.E.2d 411, 415 (Ind. Ct. App. 2010). Summary disposition should

      be granted only if there are no genuine issues of material fact and the movant is

      entitled to judgment as a matter of law, and we resolve all doubts in favor of the

      non-movant. Id. at 415-16; see also Ind. Post-Conviction Rule 1(4)(g).


[5]   In this case, Temple’s parole was revoked after he pleaded guilty to a new

      criminal offense. Temple argues, essentially, that the Parole Board did not

      follow proper procedures in the revocation process. First, he argues that he was

      denied due process because the parole officer did not file a parole violation


      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-MI-336 | February 5, 2015   Page 3 of 5
      report with the Parole Board. The applicable statute, however, does not make

      such a report mandatory: “If an employee of the department assigned to

      supervise and assist parolees believes that a parolee has violated a condition to

      remaining on parole, he may submit a written report of the violation to the

      parole board.” Ind. Code § 11-13-3-8(a) (emphasis added). Inasmuch as there

      is no requirement that the report be submitted, we find no error on this basis.


[6]   Although it is not entirely clear, Temple also seems to argue that the Parole

      Board did not comply with the procedures outlined in Indiana Code sections

      11-13-3-8 and -9. This argument is without merit. Temple seems to be arguing

      that he was denied due process because there was no preliminary hearing to

      determine probable cause before the revocation hearing took place. It is true

      that, under certain circumstances, a preliminary probable cause hearing may be

      required before the revocation hearing takes place. I.C. § 11-13-3-9. Here,

      however, Temple pleaded guilty to failure to register as a sex offender on

      February 7, 2012—a crime he committed while on parole. Indiana Code

      section 11-13-3-9(d) explicitly states that a preliminary hearing is not required

      “[i]f the alleged violation of parole is the parolee’s conviction of a crime while

      on parole[.]” Consequently, the Parole Board did not err in failing to hold a

      preliminary hearing in this case.


[7]   The Parole Board may issue an order for the parolee to appear for a revocation

      hearing upon a showing of probable cause that a violation occurred. I.C. § 11-

      13-3-8(b). Here, Temple admitted to committing a new crime while on parole.

      That certainly constitutes probable cause to hold a hearing.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-MI-336 | February 5, 2015   Page 4 of 5
[8]    Temple received the required notice of parole violation hearing on March 23,

       2012, and makes no argument that the notice itself was deficient. Six days

       later, a hearing was held, and Temple makes no argument that the process

       followed at that hearing was deficient. Furthermore, we note that at the parole

       violation hearing, Temple admitted to the violation.


[9]    Once the statutory procedural requirements have been met, the Parole Board

       “has almost absolute discretion in making its decision” to revoke parole.

       Komyatti, 931 N.E.2d at 419. We see no evidence in this case that the Parole

       Board abused that discretion, nor do we see evidence that the statutory

       procedures were not followed. Inasmuch as there are no genuine issues of

       material fact and New Castle Correctional Facility is entitled to judgment as a

       matter of law, we find that the trial court properly granted the motion for

       summary disposition and denied Temple’s petition for post-conviction relief.


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


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-MI-336 | February 5, 2015   Page 5 of 5
