MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Apr 28 2020, 8:42 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
John Gates                                                Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana
                                                          David A. Arthur
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Gates,                                               April 28, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-MI-1288
        v.                                                Appeal from the Henry Circuit
                                                          Court
State of Indiana,                                         The Honorable Kit C. Dean Crane,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          33C02-1902-MI-12



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-1288 | April 28, 2020                   Page 1 of 5
[1]   John Gates appeals the trial court’s order denying his petition for post-

      conviction relief,1 arguing that the trial court erred when it granted the State’s

      motion for summary disposition. Gates argues that there were genuine issues of

      material fact rendering summary disposition inappropriate. Finding no error,

      we affirm.


                                                         Facts
[2]   On May 8, 2008, Gates pleaded guilty to charges of rape and escape in

      Vanderburgh County and was sentenced to an aggregate term of fourteen years

      in the Department of Correction. While incarcerated, on June 16, 2010, Gates

      also pleaded guilty to prisoner possessing a device or material, a Class C felony,

      and was sentenced to a three-year term to run consecutively to his previously-

      imposed fourteen-year term.


[3]   On June 10, 2017, Gates was released to parole. Later, on August 10, 2017, the

      State alleged that Gates had violated the conditions of his parole by possessing

      obscene materials. Gates admitted to violating the conditions of his parole on

      August 11, 2017, and subsequently waived his right to a preliminary parole

      revocation hearing. Relying on various documents and Gates’s admission, on

      September 26, 2017, the Parole Board revoked Gates’s parole.




      1
        Though Gates initially filed a petition for writ of habeas corpus, the trial court properly construed this
      action as a petition for post-conviction relief because Gates is challenging the revocation of his parole and is
      not seeking immediate release from an unlawful incarceration. See Ind. Post-Conviction Rule 1(1)(a)(5); see
      also Grayson v. State, 58 N.E.3d 998, 1001 (Ind. Ct. App. 2016).

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1288 | April 28, 2020                        Page 2 of 5
[4]   On February 12, 2019, Gates filed a petition for writ of habeas corpus, which he

      later amended on March 4, 2019. In response, the State filed a motion for

      summary disposition on March 26, 2019, arguing that the matter should not be

      treated as a petition for writ of habeas corpus and that Gates should be denied

      relief because he admitted to violating the conditions of his parole. The trial

      court took the matter under advisement. On May 21, 2019, the trial court issued

      an order stating that it had treated Gates’s petition as one for post-conviction

      relief and, consequently, granted the State’s motion for summary disposition,

      thereby affirming the revocation of his parole. Gates now appeals.


                                    Discussion and Decision
[5]   Gates’s sole argument on appeal is that the trial court erred by granting the

      State’s motion for summary disposition and affirming that his parole should be

      revoked. Specifically, Gates contends that there should have been an

      evidentiary hearing on his petition because there were genuine issues of

      material fact.


[6]   Pursuant to Indiana 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. . . . If an issue of material fact is raised, then the
              court shall hold an evidentiary hearing as soon as reasonably
              possible.




      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1288 | April 28, 2020   Page 3 of 5
      Under this subsection, “[a]n appellate court reviews the grant of a motion for

      summary disposition in post-conviction proceedings on appeal in the same way

      as a motion for summary judgment.” Norris v. State, 896 N.E.2d 1149, 1151

      (Ind. 2008). And it is well established that:


              the standard of review of a grant or denial of a motion for
              summary judgment is the same as that used in the trial court:
              summary judgment is appropriate only where the designated
              evidence shows that there is no genuine issue of material fact and
              the moving party is entitled to a judgment as a matter of law. The
              moving party must designate sufficient evidence to eliminate any
              genuine factual issues, and once the moving party has done so, the
              burden shifts to the nonmoving party to come forth with contrary
              evidence.


      Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425,

      430 (Ind. Ct. App. 2004) (internal citation omitted).


[7]   Based on the record, we know that in rendering its decision to revoke Gates’s

      parole, “the Parole Board relied on the Parole Release Agreement, Parole

      Violation Report, Initial hearing[,] Preliminary Hearing Waiver, New

      Convictions, Parole Case Notes, Offender Information System[,] the Plea, and

      other evidence.” Appellant’s App. Vol. II p. 8-9. Moreover, Gates admitted to

      possessing obscene materials and violating the conditions of his parole. Gates

      even signed a document affirming all of this to be true—further evidence that

      Gates understood that his parole could be revoked. It is apparent to us that

      Gates understood the nature of his actions and accepted the ultimate

      consequence of his parole revocation.



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1288 | April 28, 2020   Page 4 of 5
[8]    Thus, the State has designated sufficient evidence showing that there are no

       genuine issues of material fact. Despite Gates’s contention that an evidentiary

       hearing on his petition for post-conviction relief should have been held, he has

       proffered no evidence to rebut the State’s evidence except to say that “[i]n the

       particular case of appellant Gates the material fact allegation required an

       evidentiary hearing for the submission of evidence for the purpose of hearing

       testimony in [sic] that is ‘best evidence’ in any case.” Appellant’s Br. p. 8.

       Accordingly, we find that Gates has not met his burden.


[9]    Therefore, the trial court did not err when it granted the State’s motion for

       summary disposition, thereby denying Gates’s petition for post-conviction

       relief.2


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


       Bradford, C.J., and Pyle, J., concur.




       2
         The State spends a considerable amount of time countering two arguments allegedly raised by Gates: (1)
       that Gates was discharged from his escape sentence; and (2) that Gates could not be on probation and parole
       concurrently. However, we decline to address these, as Gates himself mentions these concerns only as asides
       in his brief and does not support them with relevant caselaw or additional argument. To address them here
       would only distract from Gates’s central and, in our opinion, sole issue: the revocation of his parole.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1288 | April 28, 2020                   Page 5 of 5
