                                                                   Mar 20 2015, 10:07 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Jeffrey R. Wright                                         Frances Barrow
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Holleman,                                       March 20, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          45A03-1403-PC-90
        v.                                                Appeal from the Lake Superior
                                                          Court; The Honorable Samuel
                                                          Cappas, Judge, The Honorable
State of Indiana,                                         Natalie Bokota, Magistrate
Appellee-Respondent.                                      45G04-7611-CR-266




May, Judge.




Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                    Page 1 of 9
[1]   In 1976, Robert Holleman committed felony murder. He was sentenced to life

      in prison. Holleman had parole hearings in 1996, 2000, 2005, and 2010, and

      was denied release each time. Holleman underwent psychiatric and

      psychological assessments in 1997. The parole board did not seek a more

      current report on Holleman’s psychological condition before the 2010 hearing,

      and a 2013 report indicated Holleman had progressed in some areas that were

      of concern in 1997. Holleman argues on appeal the parole board should have

      ordered an updated report and should have allowed Holleman to attend his

      public parole release hearing.


[2]   As the errors Holleman alleges were harmless, we affirm.


                                  Facts and Procedural History1
[3]   A prisoner subject to the law in effect when Holleman was sentenced is eligible

      to appear before the parole board after serving twenty years, and every five

      years thereafter. Ind. Code § 11-13-3-2(b)(3). Holleman appeared before the

      board four times after becoming eligible to do so.


[4]   The regular parole hearings are referred to as “facility hearings,” and the parole

      board also conducts “public hearings” every month at the Indiana Government




      1
        We heard oral argument February 17, 2015, in Indianapolis before the Indiana State Bar Association’s
      Leadership Development Academy. We thank the Academy for including us in its program and we
      commend counsel for the quality of their advocacy.

      Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                         Page 2 of 9
      Center and at two prisons.2 The public notice the parole board provided

      indicated Holleman’s public hearing would be November 22, 2010, at 9:00

      a.m., the same time and date as his facility hearing. The public hearing

      occurred immediately before the facility hearing.


[5]   Holleman was notified that he would appear before the parole board on

      November 22, and he did. The notice did not indicate there would be two

      separate hearings, i.e., the facility hearing and the public hearing, and Holleman

      was not permitted to attend the public hearing. At the facility hearing,

      Holleman addressed the parole board, and the parole board asked him

      questions. The post-conviction court found that at the end of his hearing

      “Holleman was told by the Board that his parole was denied due to the nature

      and circumstances of his offense.”3 (App. to Br. of Petitioner-Appellant at 263.)


[6]   After Holleman was denied parole in 2010, this court granted Holleman

      permission to file a successive petition for post-conviction relief. Holleman

      alleged that, at the parole release hearing in 2010, he had been denied due

      process because he was not allowed to participate in his public hearing and

      because the parole board did not conduct a new “psychological investigation or




      2
        The State so characterizes the hearing procedure in its brief, but the pages of the transcript to which it
      directs us do not say anything about the hearing process.


      3
       Holleman was convicted of felony murder, but he did not kill anyone. He was involved in a robbery after
      which another perpetrator shot and killed one of the robbery victims.

      Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                               Page 3 of 9
      community investigation” to determine whether Holleman was mentally fit or

      fit to re-join society. (Id. at 12.)


[7]   After Holleman’s 1997 psychiatric and psychological evaluations, the record

      does not reflect any other evaluations were conducted until after Holleman

      appeared before the parole board in November 2010. There was a “physical

      and mental health section” in a progress report for Holleman dated October 22,

      2010, that stated Holleman “had no current mental health diagnosis.” (Id. at

      269.) Holleman sought post-conviction relief, and he submitted a 2013 report

      based on a psychological evaluation conducted by Douglas Caruana, Psy.D.

      That report indicated Holleman had made progress in areas that were a concern

      in 1997, but Dr. Caruana testified before the post-conviction court that

      “Holleman suffers from both Axis I and Axis II mental health issues.”4 (Id.)

      Because Dr. Caruana “identifie[d] mental health issues that are not described in

      Holleman’s progress report,” (id.), the post-conviction court concluded “the

      [parole board’s] failure to obtain an updated Psychological Evaluation

      benefitted Holleman, or at least, did not detriment [sic] his chances to be

      paroled.” (Id.) The post-conviction court then denied his petition.




      4
        “Axis I and Axis II” is a reference to the classification system of the Diagnostic and Statistical Manual of
      Mental Disorders (DSM). The DSM is a reference work compiled by the American Psychiatric Association
      that categorizes mental disorders on a multiaxial system. Axis I is reserved for all disorders except for
      personality disorders and mental retardation. Those are reported on Axis II. Hanson v. Psychiatric Sec. Review
      Bd., 19 P.3d 350, 351 (Or. 2001)



      Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                            Page 4 of 9
                                       Discussion and Decision
[8]    The parole board has almost absolute discretion in carrying out its duties, and it

       is not subject to the supervision or control of the courts. Holland v. Rizzo, 872

       N.E.2d 659, 663 (Ind. Ct. App. 2007), trans. denied. There is no constitutional

       or inherent right to parole release, so our review of a decision from the parole

       board is limited to a determination whether the requirements of due process

       have been met and the parole board has acted within the scope of its powers as

       defined by statute. Id. Consequently, any right to parole release in Indiana

       must emanate from the parole release statutes. Id.


[9]    As Holleman’s current psychological and psychiatric condition was not a basis

       for the Board’s denial of parole, any error in the Board’s failure to obtain a

       current evaluation was harmless and we must therefore affirm.


[10]   We may not reverse a decision unless the complaining party demonstrates it

       was harmed by the alleged error. See, e.g., Standifer v. State, 718 N.E.2d 1107,

       1110 (Ind. 1999) (a conviction will not be reversed if the error complained of

       did not contribute to the verdict); Neese v. Kelley, 705 N.E.2d 1047, 1050 (Ind.

       Ct. App. 1999) (Indiana adheres to the rule requiring a showing of prejudice

       before reversal may be granted; the complaining party has the burden of

       showing actual prejudice).


[11]   Ind. Code § 11-13-3-3(j) provides “[i]f parole is denied, the parole board shall

       give the person written notice of the denial and the reasons for the denial.” The

       parole board may not parole a person if it determines that there is substantial

       Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015    Page 5 of 9
       reason to believe that the person will engage in further specified criminal

       activity or will not conform to appropriate specified conditions of parole. Id.


[12]   A majority of the Board voted to deny Holleman parole because of “Nature and

       Seriousness of the Crime (Seriousness of the Offense).”5 (Petitioner’s Ex. 1 at

       7.) Denial for that reason was not error.


[13]   In Murphy v. Indiana Parole Bd., 272 Ind. 200, 208, 397 N.E.2d 259, 264 (1979),

       Murphy argued the Parole Board violated his due process rights because it did

       not give adequate and sufficient reasons for the denial of parole. Specifically,

       he contended the Board, in merely stating parole was denied because of the

       “seriousness of the offense,” failed to give any factual reasons for the denial,

       failed to give Murphy any indication of what he should do to make himself a

       more likely candidate for parole, and overlooked the positive aspects of his

       record. Id. Our Supreme Court noted the legislature “delegated to the Parole

       Board the responsibility of determining the conditions of early release, without

       further specification,” id., and concluded that when the Parole Board advised

       Murphy it was denying early release because of the “seriousness of his offense,”

       its advisement met the requirement of procedural due process Murphy was

       owed.




       5
        Two of the five members would have also denied parole based on “Institutional Conduct.” (Petitioner’s
       Ex. 1 at 7.) One member would have granted parole.

       Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                       Page 6 of 9
[14]   Similarly, in Young v. Duckworth, 271 Ind. 554, 560, 394 N.E.2d 123, 127

       (1979), cert. denied sub. nom Young v. Indiana, 445 U.S. 906 (1980), reh’g denied,

       Young’s only complaint was that the reason given for the denial of parole, i.e.,

       “seriousness of the offense,” was not a sufficient reason and was “necessarily

       arbitrary and a denial of due process.” Id. Our Indiana Supreme Court

       affirmed the denial of Young’s petition for writ of habeas corpus:


               [Young] was committed by a court in jurisdiction. He appeared
               before the parole board on three occasions. He was given hearings
               at which he was present and given an opportunity to speak. A
               correction was made in his institutional packet. He received a
               written statement of reasons for denial of parole approximately
               one week after his hearing. Young was afforded his constitutional
               right to due process of law and the denial of his parole was proper.

       Id.


[15]   As Holleman has not demonstrated an updated mental health evaluation could

       have affected the Board’s determination he should be denied parole because of

       the “Nature and Seriousness of the Crime (Seriousness of the Offense),” any

       error was harmless.6 We accordingly affirm.


[16]   Affirmed.


       Vaidik, C.J., concurs. Barnes, J., concurs with separate opinion.




       6
         Holleman also argues on appeal he should not have been excluded from the public hearing portion of the
       parole review process. As he does not demonstrate his presence at the public hearing might have produced
       new insight into the nature and seriousness of the offense of which he was convicted, we do not address that
       allegation of error.

       Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                           Page 7 of 9
       ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       Stephen T. Owens                                           Gregory F. Zoeller
       Public Defender of Indiana                                 Attorney General of Indiana

       Jeffrey R. Wright                                          Frances Barrow
       Deputy Public Defender                                     Deputy Attorney General
       Indianapolis, Indiana                                      Indianapolis, Indiana




                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Robert L. Holleman,
       Appellant-Petitioner,

               v.                                                Court of Appeals Cause No.
                                                                 45A03-1403-1403-PC-90
       State of Indiana,
       Appellee-Respondent.




       Barnes, Judge, concurring.

[17]   I concur with my colleagues that Holleman was not denied due process and

       that his parole was denied in a manner in accord with our statutes. The parole

       board’s discretion in these matters is “almost absolute,” as the majority notes,

       and its decisions are very difficult to overturn. See Holland v. Rizzo, 872 N.E.2d

       659, 663 (Ind. Ct. App. 2007), trans. denied. I write separately to express my
       Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015                  Page 8 of 9
       opinion that, in a circumstance such as this, common sense and an overall aura

       of the concept called “justice” calls for a special look at this type of prisoner.


[18]   Holleman is a lifer. That is, he was sentenced to an indeterminate term of life

       in prison with the possibility of parole before the revisions to our sentencing

       scheme in 1977 and 1978 took effect and abolished such sentences. As we were

       reminded in oral argument, there are less than 200 of these prisoners remaining

       in the Department of Correction. Most are over sixty years of age, and more

       than a few are considerably older than that.


[19]   The point is that, in my opinion, when one of these prisoners comes to a parole

       hearing, the least the parole board could do would be to have a psychological

       report on the prisoner that is relatively recent. At the time of Holleman’s 2010

       parole hearing, the most recent psychological report had been prepared in 1997.

       Thus, at the 2010 hearing the parole board did not have current information

       regarding Holleman’s mental health, which is an important criteria to consider

       when deciding whether to grant parole.


[20]   I do not mean to suggest that any time a parole hearing is held for one of these

       prisoners that an exhaustive psychological report must be compiled. But I do

       think the parole board should do better than it did here.




       Court of Appeals of Indiana | Opinion 45A03-1403-PC-90 | March 20, 2015      Page 9 of 9
