                                                                                       FILED
                                                                               08/31/2017, 10:14 am
                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Samuel L. Hobbs, Jr.                                       Curtis T. Hill, Jr.
New Castle, Indiana                                        Attorney General of Indiana
                                                           Frances H. Barrow
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Samuel L. Hobbs, Jr.,                                      August 31, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           33A01-1704-MI-734
        v.                                                 Appeal from the Henry Circuit
                                                           Court
Keith Butts,                                               The Honorable Kit C. Dean Crane,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           33C02-1703-MI-19



Bailey, Judge.




Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017                   Page 1 of 12
                                           Case Summary
[1]   Pro-se Appellant Samuel L. Hobbs, Jr. (“Hobbs”) appeals the trial court’s

      summary disposition of his petition for a writ of habeas corpus. We affirm.



                                                     Issues
[2]   Hobbs presents five issues for review, which we consolidate and restate as the

      following two:


              I.       Whether the trial court erroneously treated the petition as
                       one for post-conviction relief; and


              II.      Whether Hobbs is entitled to habeas relief because his sex
                       offender sentence had been discharged and he had no
                       parole obligation at the time of the revocation proceedings.


                             Facts and Procedural History
                                                Cause No. 12
[3]   On January 12, 2006, a jury convicted Hobbs of Residential Entry, Battery, and

      Criminal Deviate Conduct under Cause Number 18C05-0506-FA-12 (“Cause

      12”). He was sentenced to three years, one year, and twenty years, respectively,

      with the Residential Entry and Battery sentences concurrent, but consecutive to

      the Criminal Deviate Conduct sentence. Accordingly, Hobbs received an

      aggregate sentence of twenty-three years. His convictions and sentence were

      affirmed on direct appeal. Hobbs v. State, No. 18A04-0602-CR-95 (Ind. Ct. App.

      Jan. 24, 2007).

      Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017      Page 2 of 12
[4]   On July 19, 2007, Hobbs filed a petition for post-conviction relief and alleged

      that he had been denied the effective assistance of trial counsel. His petition

      was denied on December 28, 2010; the denial was affirmed on appeal. Hobbs v.

      State, No. 18A04-1101-PC-46 (Ind. Ct. App. Nov. 7, 2011).


[5]   On July 23, 2014, Hobbs filed a petition for modification of his sentence

      pursuant to Indiana Code Section 35-38-1-17. The petition was denied on

      August 11, 2014, and Hobbs appealed. A panel of this Court affirmed the

      denial. Hobbs v. State, No. 18A05-1408-CR-394 (Ind. Ct. App. Jan. 29, 2015).


                                                Cause No. 16
[6]   Hobbs had previously been convicted of Theft in the Delaware Circuit Court, in

      Cause Number 18C04-0501-FD-16 (“Cause 16”), and was on probation when

      he committed Residential Entry, Battery, and Criminal Deviate Conduct.

      Hobbs was found to have violated his probation in Cause 16 when he

      committed new offenses. He was remanded to the Indiana Department of

      Correction (“the DOC”) to serve his two-year sentence for Theft, consecutive to

      the sentences imposed in Cause 12.


                                        Course of Proceedings
[7]   On December 18, 2006, Hobbs completed his sentence for Residential Entry in

      Cause 12. On the following day, he began serving his sentence for Criminal




      Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 3 of 12
       Deviate Conduct. On March 21, 2013, Hobbs entered parole status1 under

       Cause 12, such that his period of parole would run while he was imprisoned on

       the sentence in Cause 16.2 As a convicted sex offender, Hobbs was subject to a

       period of parole of up to ten years.3


[8]    On March 22, 2013, Hobbs began serving his sentence under Cause 16. The

       Cause 16 sentence was discharged on December 21, 2013. Having been

       discharged on the Residential Entry, Battery, and Theft sentences, Hobbs left

       prison subject only to parole supervision for the sex offense.


[9]    On April 16, 2014, Hobbs violated his parole. He was imprisoned, but was

       again released to parole on May 28, 2015. On October 15, 2015, Hobbs

       violated parole. His parole was again revoked.


[10]   On March 2, 2017, Hobbs filed a petition for a writ of habeas corpus together

       with a supporting brief. He alleged that the parole revocation occurred after his

       maximum release date and thus, he was wrongfully imprisoned. On March 27,

       2017, the State filed a motion for summary disposition together with a




       1
         Parole is “the release of a prisoner from imprisonment before the full sentence has been served.” Harris v.
       State, 762 N.E.2d 163, 167 (Ind. Ct. App. 2002). “While on parole, the prisoner remains in the legal custody
       of the parole agent and warden of the prison from which he is paroled until the expiration of the maximum
       term specified in his sentence or until discharged as provided by law.” Overlade v. Wells, 127 N.E.2d 686, 690
       (Ind. 1955). Although parole is an “amelioration of punishment,” it is, in legal effect, still imprisonment. Id.
       at 691.
       2
         See Mills v. State, 840 N.E.2d 354, 359 (Ind. Ct. App. 2006) (recognizing that an offender may be partially
       serving his parole for one offense while serving another sentence).
       3
           Ind. Code § 35-50-6-1(d).


       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017                           Page 4 of 12
       supporting brief. On the same day, the trial court denied Hobbs’ petition,

       which it treated as a petition for post-conviction relief. This appeal ensued.



                                   Discussion and Decision
                                     Classification of Petition
[11]   Hobbs asserts that the State could not legally incarcerate him after December

       21, 2013, the date of his discharge on Cause 16. Indiana Code Section 34-25.5-

       1-1 provides:

               Every 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.


       “One is entitled to habeas corpus only if he is entitled to his immediate release

       from unlawful custody.” Partlow v. Superintendent, Miami Correctional Facility,

       756 N.E.2d 978, 980 (Ind. Ct. App. 2001), superseded by statute on unrelated issue

       as stated in Paul v. State, 888 N.E.2d 818, 826 (Ind. Ct. App. 2008), trans. denied.

       Hobbs’ petition for a writ of habeas corpus alleges that he is being unlawfully

       imprisoned because his sentence was discharged and he was not then on parole

       subject to revocation.




       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 5 of 12
[12]   Before reaching the merits of Hobbs’ petition,4 the trial court determined that

       the petition should be treated as one for post-conviction relief, as follows:


                The Court construes Hobbs Jr.’s petition as a petition for post-
                conviction relief. Hardley v. State, 893 N.E.2d 740, 743 (Ind. Ct.
                App. 2008) (explaining that a challenge to the revocation of
                parole is a petition for post-conviction relief).


                An action for post-conviction relief may be decided by summary
                disposition on the pleadings. Rule 1, §§ 4(f) and 4(g), Indiana
                Rules of Procedure for Post-Conviction Remedies; Diaz v. State,
                753 N.E.2d 724, 727 (Ind. Ct. App. 2001).


       (App. at 5.)


[13]   Hobbs argues that he has steadfastly maintained his entitlement to immediate

       discharge and his petition was not one for post-conviction relief and thus, the

       petition should not have been decided by the summary disposition procedure of

       Post-Conviction Rule 1(4)(g):


                The court may grant a motion by either party for summary
                disposition of the petition when it appears from the pleadings,
                depositions, answers to interrogatories, admissions, stipulations
                of fact, and any affidavits submitted, that there is no genuine
                issue of material fact and the moving party is entitled to
                judgment as a matter of law. The court may ask for oral
                argument on the legal issue raised. If an issue of material fact is




       4
        At first blush, it appears that the trial court summarily dismissed the petition. Nevertheless, contrary to this
       assertion, the trial court addressed the merits of Hobbs’ petition, calculated the term of his parole, and
       ultimately determined that Hobbs was still subject to punishment for the sex offense conviction.

       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017                            Page 6 of 12
                raised, then the court shall hold an evidentiary hearing as soon as
                reasonably possible.


[14]   Hobbs’ petition did not challenge the validity of his 2006 conviction or

       sentence; nor did he allege that the revocation was obtained without sufficient

       evidence or due process of law. It thus appears that he appropriately captioned

       his claim as one for habeas corpus.5 However, we need not decide whether the

       trial court properly determined that Hobbs’ petition was subject to summary

       disposition under the post-conviction rule, because Hobbs has asked that we

       decide the merits of his case. See Partlow, 756 N.E.2d at 982 (“we need not

       reach the issue of whether Partlow was entitled to a hearing on his properly-

       denominated petition for writ of habeas corpus because Partlow requests that

       we decide the merits of this case.”) We, like the Partlow Court, will proceed to

       address the merits notwithstanding the trial court’s classification of the petition

       as one for post-conviction relief.


                 Merits of Petition for a Writ of Habeas Corpus
[15]   In ruling on the merits of Hobbs’ petition, the trial court made the following

       findings of fact and conclusions:




       5
         The trial court stated, in reliance upon Hardley v. State, 893 N.E.2d 740 (Ind. Ct. App. 2008), that a
       challenge to the revocation of parole is a petition for post-conviction relief. In Hardley, the petitioner
       challenged the revocation of parole by alleging a lack of notice of a violation but did not argue that he was no
       longer subject to DOC authority. We do not read Hardley so broadly as to provide that any habeas corpus
       petition relative to parole revocation amounts to a petition for post-conviction relief.

       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017                          Page 7 of 12
               Hobbs Jr. is challenging the revocation of his parole because he
               alleges that his parole revocation occurred after his maximum
               release date.


               Hobbs Jr. entered parole status under Cause Number 18C05-
               0506-FA-12 (“Cause 12”) for the criminal deviate conduct
               conviction on March 21, 2013.


               Thereafter, on March 22, 2013, Hobbs Jr. began serving his
               sentence under Cause Number 18C04-0501-FD-16 (“Cause 16”).
               This sentence was discharged on December 21, 2013. This did
               not discharge either the sentences or the other parole obligations
               under Cause 12.


               On December 21, 2013, Hobbs began serving his up to ten year
               parole under Cause 12, a qualifying sex offense.


               On April 16, 2014, Petitioner violated his parole. At the time of
               this violation Petitioner was still serving his ten year parole
               obligations under Cause 12.


               On May 28, 2015, Petitioner was released on parole under Cause
               12. On October 15, 2015, Petitioner violated his parole while
               still serving his ten year parole obligation under Cause 12.


               Accordingly, Hobbs Jr. is not entitled to immediate release and
               his parole was properly revoked because he was still on parole
               when he admittedly violated that parole.


       (App. at 6.)


[16]   Pursuant to Indiana Code Section 35-50-6-1, a felon is released to either parole

       or probation. With respect to any given sentence imposed for a felony, a person

       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 8 of 12
       is in one of four stages. Hannis v. Deuth, 816 N.E.2d 872, 877 (Ind. Ct. App.

       2004). First, he is waiting to start serving the sentence; second, he is serving the

       sentence; third, he is on parole on the sentence; and fourth, he is discharged

       from the sentence. Id. To be entitled to release, Hobbs would need to show

       that he had been discharged from the Criminal Deviate Conduct sentence.


[17]   On appeal, the parties herein do not dispute factual events; they disagree as to

       whether those facts culminated in a sentence discharge. An issue presented on

       appeal is a pure question of law when the question does not require reference to

       extrinsic evidence, inferences drawn from that evidence, or the consideration of

       credibility questions. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). This

       is such a question, which we review de novo. See Norris v. State, 896 N.E.2d

       1149, 1151 (Ind. 2008).


[18]   Hobbs argues: the State was required, pursuant to Indiana Code Section 35-50-

       6-1, to “release” Hobbs to formal parole on Cause 12 on March 21, 2013, the

       date of reaching mandatory parole status; a notation in the DOC computer

       system of parole eligibility did not effect this “release”; instead, a “release” is to

       be accomplished by his signing a State Form 23R;6 when the State failed to

       effect a “release” to parole, Hobbs was “turned over” to begin serving his

       sentence in Cause 16 free of a parole obligation in Cause 12; or “at a




       6
           This is a Conditional Parole Release Agreement.


       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017    Page 9 of 12
       minimum,” his parole supervision was suspended until after he served his

       consecutive sentence under Cause 16. Appellant’s Brief at 17, 28.


[19]   Hobbs has not provided authority for the proposition that failure to “release”

       him from prison on March 21, 2013 via obtaining his signature on a State Form

       23R effected a discharge of the sentence in Cause 12. Moreover, he ignores the

       requirement of sex-offender parole for up-to ten years when he suggests that a

       temporary suspension would have provided him some relief.


[20]   Indiana Code Section 35-50-6-1(d) provides in relevant part, “[w]hen a sex

       offender (as defined in IC 11-8-8-4.5) completes the sex offender’s fixed term of

       imprisonment, less credit time earned with respect to that term, the sex offender

       shall be placed on parole for not more than ten (10) years.” An offender

       “released on parole remains on parole from the date of release until the person’s

       fixed term expires, unless the person’s parole is revoked or the person is

       discharged from that term by the parole board.” Ind. Code § 35-50-6-1(b). An

       offender “whose parole is revoked shall be imprisoned for all or part of the

       remainder of the person’s fixed term.” Ind. Code § 35-50-6-1(c).


[21]   As for his contention that the Parole Board essentially “turned over” and

       discharged his sentence by failing to timely present him with State Form 23R,

       Hobbs supports his argument by directing our attention to Meeker v. Ind. Parole

       Bd., 794 N.E.2d 1105 (Ind. Ct. App. 2003), trans. denied. Meeker was serving

       two concurrent sentences following his convictions for drug dealing in 1991,

       and was thereafter released to parole in 1995. See id. at 1106. While on parole,


       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 10 of 12
       he was convicted of alcohol-related crimes in 1996 and sentenced to serve the

       remainder of his 1991 sentence. While Meeker was incarcerated on the 1991

       drug sentence, the Parole Board voted that he should be “turned over to another

       commitment” on July 21, 1998 and used the phrase in its revocation form. Id.

       at 1107.


[22]   On October 12, 2000, Meeker was released to parole after serving the five-year

       sentence less the applicable credit time. The dealing convictions were used as

       the basis for Meeker’s parole. After Meeker was convicted of carrying a firearm

       without a license in 2001, his parole was revoked. The Parole Board then

       reinstated the remaining sentence on the 1991 drug dealing conviction.


[23]   On appeal, a panel of this Court determined that the “turn over” by the Parole

       Board amounted to a discharge from Meeker’s dealing sentence and that

       Meeker could not again be required to serve the remainder of his dealing

       sentence later. As there was no statutory or common law definition of “turn

       over,” the Court construed the phrase against the State. Id. at 1109.


[24]   Subsequent application of Meeker has focused on whether the Parole Board used

       the words “turned over.” A “turn-over” eliminating a parole obligation occurs

       when the Board explicitly states such and has the intent to discharge the

       sentence. See Baldi v. State, 908 N.E.2d 639, 642 (Ind. Ct. App. 2009) (holding

       that a sentence was not discharged where there was no use of the phrase “turn

       over” or expression of intent to discharge the sentence). See also Pallett v. State,

       901 N.E.2d 611, 614 (Ind. Ct. App. 2009) (Meeker inapplicable where no


       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 11 of 12
       expressed intent by Parole Board to discharge a sentence and the vote form

       listing potential actions by the Parole Board did not show “Granted Turnover”

       option checked ), trans. denied, and Mills, 840 N.E.2d at 358 (no evidence was

       presented that the Parole Board took action to discharge or “turn over” a

       sentence).


[25]   Hobbs has not directed us to any facts of record that indicate the Parole Board

       intended to discharge his sentence on the sex offense. He does not point to any

       “turn over” language used by the Parole Board. Instead, he baldly asserts that

       no vote by the Parole Board was required in his case. However, he fails to

       support this assertion with citation to relevant authority. Hobbs has not shown

       that his Criminal Deviate Conduct sentence has been discharged.



                                                Conclusion
[26]   The record does not demonstrate that Hobbs’ sentence for Criminal Deviate

       Conduct was discharged, suspended, or “turned over” to a new commitment by

       the Parole Board. He was on parole, serving an up-to-ten-year term, when his

       parole was revoked. Thus, Hobbs did not show he is being illegally restrained

       and the trial court did not err when it denied Hobbs’ petition for a writ of habeas

       corpus.


[27]   Affirmed.


       Baker, J., and Altice, J., concur.


       Court of Appeals of Indiana | Opinion 33A01-1704-MI-734 | August 31, 2017   Page 12 of 12
