MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jan 16 2018, 10:13 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Anthony Taylor                                           Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Taylor,                                          January 16, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         33A01-1708-MI-1914
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Kit C. Dean Crane,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         33C02-1705-MI-43



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018            Page 1 of 9
                                       Statement of the Case
[1]   Anthony Taylor, pro se, appeals the trial court’s denial of his petition for a writ

      of habeas corpus. Taylor raises three issues for our review, which we

      consolidate and restate the following dispositive issue: whether the trial court

      abused its discretion when it denied his petition.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On March 13, 1991, Taylor was convicted of burglary, rape, and criminal

      confinement, and he was adjudicated a habitual offender. The trial court

      sentenced Taylor to an aggregate sentence of thirty years with the Department

      of Correction. On April 17, 2006, Taylor was released on parole. On July 20,

      the Indiana Parole Board declared Taylor to be a delinquent and issued a

      warrant to revoke his parole on August 15. On August 10, while on parole,

      Taylor was arrested. On April 23, 2007, the trial court convicted Taylor of

      possession of a firearm by a serious violent felon and unlawful use of body

      armor and sentenced him accordingly. Subsequently, this court reversed

      Taylor’s conviction for unlawful use of body armor. On January 17, 2013, the

      trial court modified Taylor’s 2007 sentence to reflect the vacated conviction and

      sentenced Taylor to fifteen years in the Department of Correction for his

      conviction for unlawful possession of a firearm by a serious violent offender.

      The trial court credited Taylor with ninety-three days of jail time credit. On

      October 4, Taylor was again granted parole for his 1991 burglary conviction,


      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 2 of 9
      but he remains incarcerated in order to serve his sentence for his 2007

      conviction for unlawful possession of a firearm by a serious violent felon.


[4]   On May 10, 2017, Taylor, pro se, filed a petition for a writ of habeas corpus, in

      which he alleged that his constitutional rights had been violated because he had

      already served time for his sentence for the unlawful possession of a firearm

      conviction and because the trial court did not credit him with time served when

      it resentenced him on January 17, 2013. On July 17, 2017, Taylor filed a

      request for admissions. On July 21, the trial court denied Taylor’s petition for a

      writ of habeas corpus and found that Taylor “continued to serve his 30 year

      burglary sentence in IDOC custody until October 4, 2013, when he was granted

      parole status” and Taylor then “began serving his 15 year firearm

      conviction . . . and due to jail time credit, his estimated date of sentencing was

      backdated to July 4, 2013.” Appellant’s App. Vol. II at 59-60. This appeal

      ensued.


                                     Discussion and Decision
[5]   As an initial matter, we note that the State asserts that “[a]s a technical matter”

      Taylor’s petition should be considered a petition for post-conviction relief

      instead of a petition for a writ of habeas corpus “because he challenges the

      revocation of his parole.” Appellee’s Br. at 12. The State further asserts that,

      “this Court need not decide whether Taylor’s petition requested habeas or post-

      conviction relief because he has asked the Court to decide the merits of his

      case.” Appellee’s Br. at 13. Taylor’s petition alleged that he is being unlawfully

      imprisoned because he was not fully credited with time served on his 2007
      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 3 of 9
      sentence between his original date of sentencing on April 23, 2007, and his date

      of resentencing on January 16, 2013, and, thus, that he is entitled to immediate

      release from his incarceration. He does not challenge the validity of his 2007

      conviction or sentence, and he does not allege that the parole revocation was

      obtained without sufficient evidence or due process of law. Thus, Taylor

      appropriately captioned his petition as one for habeas corpus. See e.g., Hobbs v.

      Butts, 83 N.E.3d 1246, 1249 (Ind. Ct. App. 2017).


[6]   Taylor contends that the trial court abused its discretion when it denied his

      petition for a writ of habeas corpus. Indiana Code Section 34-25.5-1-1 provides

      that


              [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.


      Taylor is entitled to habeas corpus only if he is entitled to immediate release

      from unlawful custody. Hobbs, 83 N.E.2d at 1248. We review the trial court’s

      decision on a petition for a writ of habeas corpus for an abuse of discretion. See

      Manley v. Butts, 71 N.E.3d 1153, 1156 (Ind. Ct. App. 2017).


[7]   Taylor raises three arguments on appeal. Specifically, Taylor contends that the

      trial court abused its discretion because the sentencing court erred when it

      ordered his 2007 sentence to run consecutive to his 1991 sentence; that the

      court abused its discretion because the sentencing court failed to inform him

      that his 2007 sentence would run consecutive to his 1991 sentence; and that the

      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 4 of 9
      trial court erred when it denied his petition before the State could file its

      answers to his request for admissions. We address each contention in turn.


                                            Consecutive Sentence

[8]   Taylor first asserts that the trial court abused its discretion when it denied his

      petition because the sentencing court erred when it ordered his 2007 sentence to

      run consecutive to his 1991 sentence. Taylor argues that the Indiana Parole

      Board had discretion to decide whether his 2007 sentence should run

      concurrent with his 1991 sentence or whether it should be held in abeyance and

      begin after he was granted parole status for his 1991 sentence. Specifically, he

      argues that the Indiana Parole Board did not take appropriate action when it

      decided that his 2007 sentence should run consecutive to his 1991 sentence.


[9]   In support of his argument, he cites Hawkins v. Jenkins, 374 N.E.2d 496 (Ind.

      1978). In Hawkins, the Indiana Supreme Court held that the parole board

      properly held Hawkins’ sentence in abeyance. The Court relied on Indiana

      Code Section 11-1-1-1, which stated:


              Any prisoner who commits a crime while at large upon parole
              and who is convicted and sentenced thereof may be required by
              the board to serve such sentence after the original sentence has
              been completed.


      Taylor contends that the “discretionary authority does not automatically

      postpone the commencement of a new sentence, but requires formal action by

      the Parole Board to accomplish that.” Appellant’s Br. at 9.



      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 5 of 9
[10]   However, Indiana Code Section 11-1-1-11 was repealed in 1979. Instead, the

       sentencing court properly relied on Indiana Code Section 35-50-1-2. That

       statute states, in pertinent part:


               (d) If, after being arrested for one (1) crime, a person commits
               another crime:


               (1) before the date the person is discharged from probation,
               parole, or a term of imprisonment imposed for the first crime; or


               (2) while the person is released:


                        (A) upon the person’s own recognizance; or


                        (B) on bond;


               the terms of imprisonment for the crimes shall be served
               consecutively, regardless of the order in which the crimes are
               tried and sentences are imposed.


       Ind. Code Ann. § 35-50-1-2 (West 2007). Because Taylor committed the crime

       of unlawful possession of a firearm by a serious violent felon before he was

       discharged from parole for his 1991 burglary conviction, pursuant to Indiana

       Code Section 35-50-1-2(d) the sentencing court properly ordered Taylor’s 2007

       sentence to run consecutive to his 1991 sentence.


[11]   Still, Taylor alleges that, because his sentences should have run concurrently, he

       was denied credit time for time served on his 2007 sentence between the

       original sentencing date of April 23, 2007, and the date he was resentenced on

       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 6 of 9
       January 17, 2013. However, as discussed above, Taylor did not begin to serve

       his 2007 sentence until he was granted parole status on October 4, 2013. As

       such, he was not entitled to credit time toward his 2007 sentence for the time he

       served in the Indiana Department of Correction between April 23, 2007, and

       January 17, 2013.


                               Failure to Inform of Consecutive Sentence

[12]   Taylor next asserts that the sentencing court “erred in not ordering that the

       sentence for the new conviction be served consecutively [sic] to the sentence

       imposed for Petitioner’s 1991 convictions.” Appellant’s Br. at 10. Specifically,

       he states that the “error committed was failing to order [Taylor’s] sentence to

       run consecutively [sic] to any he might receive as a result of an impending

       parole revocation.” Id.


[13]   Taylor’s argument on this point is not clear. Insofar as he asserts that the

       sentencing court was required to order his 2007 sentence to run consecutive to

       his 1991 sentence, the sentencing court did exactly that, which, as explained

       above, was required by law. And the cases Taylor cites also support the

       statutory requirement that his sentences run consecutively. See Bay v. State, 489

       N.E.2d 1220, 1226 (Ind. Ct. App. 1986) (holding that the trial court erred when

       it did not order Bay’s sentences to run consecutively to sentences for

       convictions for which Bay was on probation when he committed the instant

       offense); Chandler v. State, 451 N.E.2d 319, 321 (Ind. 1983) (holding that the

       trial court erred when it ordered the sentence for the crime Chandler committed


       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 7 of 9
       after he had escaped from prison to run concurrently to his initial fifty-year

       sentence).


[14]   Nonetheless, Taylor also contends that the “enhancement of consecutive

       sentencing under the statute attaches to a conviction for a crime committed on

       parole and the Petitioner expecting a conviction that carries such an

       enhancement must be informed thereof.” Appellant’s Br. at 10 (emphasis in

       original). In essence, Taylor contends that the sentencing court erred when it

       did not explicitly inform him that his 2007 sentence was to run consecutive to

       his 1991 sentence. However, Taylor cites no case law or statute to support that

       contention, nor does Taylor provide any information on how the alleged error

       harmed him or why he would be entitled to immediate release from his

       incarceration. Further, Taylor concedes that “[t]he sentencing court was not

       required to inform [Taylor] of the collateral consequences of the parole

       violation and subsequent revocation.” Id. We conclude that Taylor has not

       demonstrated any reversible error on this issue.


                                           Request for Admissions

[15]   Finally, Taylor contends that the trial court abused its discretion when it did not

       allow the State to file answers to his request for admissions but, instead, denied

       his petition just four days after he had filed his request for admissions. Taylor

       asserts that the trial court “did not allow the Petitioner’s Request for

       Admissions to be answered by Respondent and dismissed the case without

       these facts critical to the issues presented on July 21, 2017[,] four days after the

       Request for Admissions was submitted.” Appellant’s Br. at 8.
       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 8 of 9
[16]   However, Taylor has not shown how the State’s answers could have negated

       the requirement found in Indiana Code Section 35-50-2-1 that his 2007 sentence

       run consecutive to his 1991 sentence. The trial court’s findings of fact in its

       denial of Taylor’s petition were clearly based on the application of that statute

       and its effect on Taylor due to his criminal history.


[17]   In sum, the sentencing court did not err when it ordered Taylor’s 2007 sentence

       to run consecutive to his 1991 sentence. Further, Taylor concedes that the

       sentencing court was not required to inform him of the collateral consequence

       of his parole violation, and Taylor has not shown how the State’s answers to his

       request for admissions would have avoided the statutory requirement that his

       2007 sentence run consecutive to his 1991 sentence. As such, the trial court did

       not abuse its discretion when it denied Taylor’s petition for writ of habeas

       corpus.


[18]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1914 | January 16, 2018   Page 9 of 9
