MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Dec 12 2019, 10:33 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
Darryl Abron                                             Curtis T. Hill, Jr.
Greencastle, Indiana                                     Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Darryl Abron,                                            December 12, 2019
Appellant,                                               Court of Appeals Case No.
                                                         19A-MI-939
        v.                                               Appeal from the Putnam Superior
                                                         Court
State of Indiana,                                        The Honorable Charles D. Bridges,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         67D01-1901-MI-35




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019                   Page 1 of 6
[1]   Darryl Abron appeals the denial of his request for immediate release. We

      affirm.


                                      Facts and Procedural History

[2]   In 2008, Abron was sentenced to twenty years, and in July 2016, he was

      released to parole. On April 18, 2017, the State charged Abron with the new

      offense of theft as a class A misdemeanor and later filed an information

      enhancing the theft charge to a level 6 felony based on prior criminal history. A

      parole violation warrant was issued and served on April 19, 2017. On July 19,

      2017, Abron was sentenced for theft as a level 6 felony to the Marion County

      Jail for 730 days and received credit for ninety-two actual days confined. On

      April 17, 2018, Abron was discharged from the Marion County Jail and turned

      over to the Department of Correction. On May 17, 2018, the parole board held

      a hearing and issued a disposition indicating that Abron had a new conviction

      and admitted to the violation and that he was assessed the balance of his

      sentence.


[3]   Abron submitted a Petition for Writ of Habeas Corpus in July 2018, which was

      file-stamped in January 2019, alleging that the parole board violated his right to

      a timely revocation hearing under Ind. Code § 11-13-3-10 and requesting his

      immediate release from custody. The State filed a response and motion for

      summary disposition arguing in part that Abron’s filing should be treated as a

      petition for post-conviction relief and that his parole revocation hearing was not

      untimely. The court granted the State’s motion and entered judgment against

      Abron.
      Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019   Page 2 of 6
                                                       Discussion

[4]   Abron claims that he is entitled to immediate release. He states that the trial

      court erred in finding his petition for writ of habeas corpus was a petition for

      post-conviction relief, that he is not asking for remand, and that he is asking this

      Court to decide the case on the merits. He asserts that he was denied a timely

      revocation hearing under Ind. Code § 11-13-3-10 and that this Court, in Lawson

      v. State, 845 N.E.2d 185 (Ind. Ct. App. 2006), did not correctly interpret Ind.

      Code § 11-13-3-10 or determine the legislature’s intent. The State agrees that

      Abron was permitted to file his request for release as a petition for writ of

      habeas corpus but argues that the trial court had jurisdiction over the petition

      and that this Court may address the merits of Abron’s argument. 1 It argues that

      Abron’s parole revocation hearing was not untimely under Ind. Code § 11-13-3-

      10 because he was not confined due solely to an alleged violation of parole and

      remained incarcerated in the Marion County Jail for this theft conviction until

      April 17, 2018.


[5]   The primary rule in statutory construction is to ascertain and give effect to the

      intent of the legislature. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001).




      1
          In Lawson, this Court stated:

                 Initially, we observe that in his writ of habeas corpus, Lawson challenged the revocation
                 of his probation and alleged that he was entitled to immediate release. Therefore, both
                 the post-conviction rules and habeas corpus statutes are applicable. Because neither party
                 asserts that the trial court erred when it treated Lawson’s writ of habeas corpus as a
                 petition for post-conviction relief, we will proceed to address the merits of the case.
      845 N.E.2d at 186 (citations omitted).

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019                    Page 3 of 6
      The best evidence of legislative intent is the language of the statute itself, and all

      words must be given their plain and ordinary meaning unless otherwise

      indicated by statute. Id.


[6]   Ind. Code § 11-13-3-10(a) provides in part that “[a] parolee who is confined due

      to an alleged violation of parole shall be afforded a parole revocation hearing

      within sixty (60) days after the parolee is made available to the department by a

      jail or state correctional facility . . . .” Ind. Code § 11-13-3-10(c) provides in

      part that, if a parolee commits a new level 6 felony, “the parole board may

      revoke the parole and order continuous imprisonment.” Ind. Code § 11-13-3-

      10(e) provides that, “[u]nless good cause for the delay is established in the

      record of the proceeding, the parole revocation charge shall be dismissed if the

      revocation hearing is not held within the time established by subsection (a).”


[7]   In Lawson, after Lawson was released to parole, he was charged with theft and

      two counts of resisting law enforcement on March 31, 2004, a parole violation

      warrant was served on him on June 2, 2004, he pled guilty on July 9, 2004, to

      the theft and one count of resisting law enforcement as class D felonies, and the

      court sentenced him to concurrent terms of two years for each conviction. 845

      N.E.2d at 186. Lawson’s parole revocation hearing was held on October 15,

      2004, and his parole was revoked. Id. On appeal, Lawson argued the parole

      board did not hold his parole revocation hearing within sixty days of the

      sentencing for his theft and resisting law enforcement convictions and thus the

      revocation charge should have been dismissed pursuant to Ind. Code § 11-13-3-

      10(e). Id. at 187. We found that, from the date of his sentencing until the

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019   Page 4 of 6
      parole revocation hearing, Lawson was confined both for an alleged violation

      of his parole and as a result of the two-year sentence imposed for his theft and

      resisting law enforcement convictions. Id. The Court held:

               Indiana Code section 11-13-3-10 clearly requires that the revocation
               hearing shall be held within 60 days if the parolee “is confined due
               to an alleged violation of parole.”[2] Lawson would have been
               confined regardless of the alleged parole violation as he was ordered
               to serve concurrent terms of two years for his theft and resisting law
               enforcement convictions. Accordingly, we cannot conclude that
               Lawson was confined due solely to an alleged violation of parole.

      Id. We also observed Ind. Code § 11-13-3-10(c) and that Lawson admitted to

      committing two class D felonies. Id. at 187-188.


[8]   We decline to find that this Court’s opinion in Lawson in 2006 was incorrectly

      decided or does not reflect the intent of the legislature. See Fraley v. Minger, 829

      N.E.2d 476, 492 (Ind. 2005) (noting that a judicial interpretation of a statute

      accompanied by substantial legislative inaction for a considerable time may be

      understood to signify legislative acquiescence and agreement with the judicial

      interpretation).


[9]   Abron was incarcerated on the new felony charge and the subsequent

      conviction and sentence until April 17, 2018, and the parole board held a




      2
        At the time of the decision in Lawson, Ind. Code § 11-13-3-10(c) provided that, if a parolee committed a new
      felony, “the parole board shall revoke the parole and order continuous imprisonment.” (Subsequently
      amended by Pub. L. No. 179-2014, § 3 (Jul. 1, 2014)). The legislature has not made any change to Ind. Code
      § 11-13-3-10(a) since the decision in Lawson.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019                  Page 5 of 6
       revocation hearing on May 17, 2018. We conclude that Abron is not entitled to

       immediate release.


[10]   For the foregoing reasons, we affirm the trial court.


[11]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-939 | December 12, 2019   Page 6 of 6
