Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

JAMES ESKRIDGE                                     GREGORY F. ZOELLER
New Castle, Indiana                                Attorney General of Indiana

                                                   GEORGE P. SHERMAN
                                                   Deputy Attorney General

                                                                                    FILED
                                                   Indianapolis, Indiana

                                                                                 Feb 25 2013, 9:29 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                         CLERK
                                                                                       of the supreme court,
                                                                                       court of appeals and
                                                                                              tax court




JAMES ESKRIDGE,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )       No. 49A05-1111-PC-629
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Grant W. Hawkins, Judge
                    The Honorable Christina R. Klineman, Master Commissioner
                               Cause No. 49G05-9701-CF-15475



                                       February 25, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       James Eskridge, pro se, appeals the post-conviction court’s denial of his petition

for post-conviction relief, which challenged the revocation of his parole.1 Eskridge raises

three issues which we consolidate and restate as whether the court erred in denying his

petition for post-conviction relief. We affirm.

                               FACTS & PROCEDURAL HISTORY

       The relevant facts as discussed in Eskridge’s direct appeal follow:

               On January 5, 1997, [R.B.], Brian Mitchell and Eskridge were
       inmates in cell block 2-I at the Marion County Jail. Early that morning,
       [R.B.] ate breakfast and then climbed in a top bunk bed to sleep. At some
       point, [R.B.] woke up and there was a towel around his mouth. [R.B.] saw
       Eskridge standing on his right side holding his arms and Mitchell behind
       him with his pants down. Mitchell hit [R.B.] on the back and told him to
       “Take it like a bitch.” Next, [R.B.] felt a sharp pain in his rectum which
       lasted for approximately five minutes. The object that penetrated [R.B.]’s
       rectum felt like “skin,” not an inanimate object. [R.B.] also felt punches to
       his body. He tried to resist but could not because his arms were being held
       down. [R.B.] was unable to scream because of the towel around his face.
       When the pain stopped, Mitchell told [R.B.] if he told anyone about the
       incident he would kill him. [R.B.] eventually told a corrections officer who
       then transported him to the hospital.

             When [R.B.] arrived at the hospital, he told the nurse that he had
       been assaulted. Dr. Jason Zelenka, the physician who examined [R.B.],
       observed bruising around [R.B.]’s left eye and large bruises on his left leg.
       The rectal examination performed by Dr. Zelenka revealed no external
       trauma, i.e., no scrapes, abrasions or bleeding. Nor was semen detected
       during the examination. [R.B.] was withdrawn and quiet throughout the
       physical examination.

              On January 8, 1997, Detective Steven Summers interviewed [R.B.],
       and [R.B.] identified Eskridge and Mitchell in a photo line-up as the
       inmates who had sexually assaulted him. Detective Summers took photos
       of [R.B.] during the interview, and those photos revealed bruises on
       [R.B.]’s left leg, left eye, upper right arm and lower right buttock.


       1
           Eskridge refers to himself in his brief as “Eskridge-El.” Appellant’s Brief at 2.

                                                      2
             [R.B.] was then transferred out of cell block 2-I. [R.B.] later
      encountered Eskridge in an elevator, and Eskridge asked [R.B.] why he had
      “snitched” on him and Mitchell.

Eskridge v. State, No. 49A02-9803-CR-288, slip op. at 2-3 (Ind. Ct. App. October 20,

1998) (footnotes omitted). After a jury trial, Eskridge was convicted of criminal deviate

conduct as a class B felony. Id. at 2. The court sentenced Eskridge to twenty years. Id.

On direct appeal, Eskridge argued that the evidence was insufficient and that the court

abused its discretion when it admitted evidence of a prior incident between Eskridge and

the victim. Id. This court affirmed. Id.

      On February 20, 2002, Eskridge filed a petition for post-conviction relief.2 The

post-conviction court denied Eskridge’s petition. On appeal, this court affirmed the post-

conviction court.

      On March 11, 2008, Eskridge was released to parole, but he was returned to the

Department of Correction as a violator on July 18, 2008.              On August 14, 2008,

Eskridge’s parole was revoked at a revocation hearing. On January 15, 2009, the Indiana

Parole Board (the “Board”) decided to grant Eskridge release to parole, and Eskridge was

released to parole on or about February 24, 2009. Eskridge signed a conditional parole

release agreement dated February 23, 2009, which included the following provisions:

      4.        OWNING, LEASING, AND OPERATING MOTOR VEHICLES

                                                 *****

                b)       I agree to consult with my supervising officer and receive his
                         written permission prior to purchasing or leasing a motor
                         vehicle. Permission to own, lease, or operate a motor vehicle

      2
          The record does not contain a copy of this petition.

                                                     3
            is granted with the understanding that I shall comply with all
            state laws, local ordinances, and regulations of the Bureau of
            Motor Vehicles pertaining to ownership, financial
            responsibility, and the operation of motor vehicles.

                                *****

10   COMMUNICATION AND SPECIAL INSTRUCTIONS – I agree
     to report to my supervising officer as instructed and to respond to
     any and all communications from any authorized employee of the
     Department of Correction. I will abide by any special conditions
     imposed by the Indiana Parole Board which have been reduced to
     writing and included as a condition of my parole.

                                *****

           PAROLE STIPULATIONS FOR SEX OFFENDERS

                                *****

     1.     You shall enroll in, actively participate in and successfully
            complete an approved sex offender treatment program. You
            must maintain steady progress toward all treatment goals and
            may not change treatment providers without prior approval of
            your parole agent. Prompt payment of any fees is your
            responsibility.

                                *****

     5.     You must not reside, visit or be within one thousand (1,000)
            feet of public parks with playgrounds, pools, rides, and/or
            nature trials; schools, day care centers, public swimming
            pools, public beaches, theaters, or any other place where
            children can reasonably be expected to congregate.

                                *****

     17.    You shall not stay overnight with any adult and/or establish
            an intimate and/or sexual relationship with any adult without
            prior approval by your parole agent and treatment clinician.
            You must also report whether the person you are having a
            relationship with has children under the age of eighteen (18)
            and/or if children under the age of eighteen (18) reside in the
            person’s home.
                                   4
Exhibit D.

       In late August 2009, Agent Arthur Torrance of the Indianapolis Parole District

filed a report which alleged that Eskridge violated provision 4(b) regarding the use of a

vehicle and provisions 10-1, 10-5, and 10-17.3 In a report dated August 27, 2009, the

Board ordered Eskridge to return immediately and scheduled a parole revocation hearing

within sixty days of August 27, 2009.4 Agent Torrance explained to Eskridge that he had

the right to have a preliminary hearing to “let him know the allegations that he was being

faced with at that time, let him know he had the right to speak on his own behalf . . . .”

Transcript at 17. Initially, Eskridge indicated that he wanted to have a hearing, but after

interacting with Agent Green, Eskridge indicated that he wanted to sign the waiver. On

August 27, 2009, Eskridge signed a waiver of Preliminary Hearing form which stated: “I

plead guilty to the following alleged technical parole violations: Rule #4 Driving

without/suspended license, stipulation #1 failure to attend treatment[,] stipulation #5

being within 1000 feet of a school, stipulation #17 being in a[n] unapproved sexual

relationship and waive my right to a preliminary hearing.” Exhibit Q. This form was

also signed by Agent Torrance as a witness.

       On September 23, 2009, Eskridge signed a form titled “Notification of Parole

Violation Hearing” which indicated that his parole violation hearing had been scheduled

for September 29, 2009. Exhibit G. On September 29, 2009, a parole revocation hearing


       3
           The report is dated August 28, 2009.
       4
           The form is dated August 27, 2009, and is file stamped “Received” August 31, 2009. Exhibit E.

                                                    5
was held. At the beginning of the hearing, a member of the Board asked whether

Eskridge had received a notice of the hearing and whether he was ready to proceed, and

Eskridge answered affirmatively to each question. The Board then read the alleged

violations and referenced the fact that Eskridge had signed the waiver form. Eskridge

stated that he was told “just to sign” the waiver form and that signing the form would

“get [him] out of county jail and back here in front of you all quicker.” Exhibit L. When

a member of the Board questioned Eskridge regarding the fact that he had initialed the

part of the form which stated “I plead guilty to the following alleged technical parole

violations,” Eskridge stated that he did not understand the form. Id. A member of the

board then indicated that he would read the allegations and take Eskridge’s pleas “such as

they would have done on a preliminary hearing.” Id. Eskridge pled not guilty to

violating Rules 4(b), 10-1, and 10-17, pled guilty to Rule 10-5, and testified regarding the

alleged violations. The Board acknowledged the presence of Eskridge’s visitors but told

Eskridge that it does not take public testimony on hearing days. At the end of the

hearing, Eskridge asked the members of the Board whether they had received letters of

recommendation. A member of the Board stated that it did not receive driver’s license

information and that it did not have a letter from Foundry Services. The Board found

Eskridge guilty of violating Rules 4(b), 10-5, and 10-17, not guilty of violating Rule 10-

1, and ordered that Eskridge be assessed the balance of his sentence and scheduled his

next parole appearance for October 2010.

       On May 24, 2010, this court authorized Eskridge to file a petition for post-

conviction relief and on September 15, 2010, Eskridge did so. Eskridge alleged that the

                                             6
Board denied him due process by denying him the right to present testimony and

evidence. Eskridge also alleged that the “[p]reliminary hearing was waived with the

misrepresentation by the said parole officer who was in fact filing the violation on the

petitioner.” Appellant’s Appendix at 92. Eskridge also alleged that the “facts supporting

the violation were fabricated in nature, and restrictions did not reasonably relate to

[him].” Id.

       On March 9, 2011, the court held an evidentiary hearing. On October 13, 2011,

the court denied Eskridge’s petition. The court’s order states:

                                     Findings of Fact

                                         *****

       2.     A parole revocation hearing was held on September 29, 2009.

       3.     [Eskridge] was present at the hearing. [Eskridge] was accompanied
              by his mother, brother and two sisters who were present but were not
              allowed to testify.

       4.     [Eskridge] waived his right to a preliminary hearing but later
              asserted that he did not wish to plead guilty as indicated by the
              waiver.

       5.     The allegations were reread to Mr. Eskridge at which time Mr.
              Eskridge pled guilty to violating Rule 10-5 and not guilty to the
              remaining three allegations.

       6.     Mr. Eskridge informed the Board that he was ready to proceed with
              the hearing and willingly answered the Board’s questions.

       7.     The Board deliberated and unanimously found Eskridge guilty of
              violating Rules 4, 10-5, and 10-17 and not guilty of violating Rule
              10-1. The Board imposed the balance of his time and set another
              parole hearing for October 2010 (Exhibits L, M, N and O).

       8.     [Eskridge], on May 18, 2010, was granted permission by the Indiana
              Supreme Court [sic] to file a successive Petition for Post-Conviction
                                             7
           Relief on the sole issue of whether or not the Indiana Parole Board
           erroneously revoked his parole.

9.         On January 24, 2011, [Eskridge] moved to amend his Petition to
           conform with the higher Court’s ruling and made the following
           claims for relief which the court summarizes as follows: 1) Denial of
           due process rights for failing to allow parolee to present evidence
           and testimony at his hearing; 2) Improper waiver of his Initial
           Hearing rights; and 3a) The facts supporting the violation of the
           “1000 foot” rule were fabricated; and 3b) The “1000 foot” rule is not
           reasonably related to the offense for which [Eskridge] was on parole.

10.        On March 9, 2011, an Evidentiary Hearing was held. At the hearing,
           Exhibits A through Q were admitted as evidence. This included
           documentation regarding the signed Parole Release Agreement, the
           report and investigation of the Parole Board as to violations and their
           findings, as well as letters sent on Mr. Eskridge’s behalf to the
           Parole Board.

11.        Agent Torrance testified at the Evidentiary Hearing that he
           conducted the investigation and filed the parole violations against
           Mr. Eskridge. He testified that he advised Mr. Eskridge of his rights
           and at first Mr. Eskridge did not want to sign the waiver of his
           preliminary hearing. After talking to another Parole Officer, he
           signed it. [Tr. 17-20.].[5]

12.        Randall Gentry was a member of the Parole Board that ultimately
           found [Eskridge] in violation of his parole. He testified at the
           Evidentiary Hearing that Mr. Eskridge informed the Board that he
           did not understand the waiver form and did not intend to plead guilty
           to the Rule violations. He was then allowed to withdraw his former
           plea and “enter a new plea of guilty or not guilty”. [Tr. 33]. Mr.
           Eskridge at that time pled not guilty to violating Rules 4, 10-1 and
           10-17 and guilty to violating Rule 10-5.

13.        Exhibit [L], a video of the Parole Board hearing was admitted into
           evidence. The court reviewed the tape and finds the following:

                 Following his plea, Eskridge testified, as to Rule 4, that he
           knew he had not paid some tickets for two seat belt violations and a
           loud muffler, but he did not know his license had been suspended.

5
    Bracketed citations to transcript appear in original.

                                                8
      To demonstrate that he did not know of his license suspension, he
      sent the Board his BMV records. The records showed his license
      was suspended a very short time. The records were not received by
      the Board before the hearing.

             Testifying as to the violation of Rule 10-5 – which he
      admitted at the start of the hearing – he stated that he had originally
      been living with his sister in an approved home on Cornelius
      Avenue, but at some point a sewer line broke and they were forced
      to evacuate while the problem was repaired. Eskridge testified that
      he had previously considered entering into a relationship with Nina
      Mayes, a friend of his, and had called her to see if he could stay with
      her. Eskridge spent time at her residence and advised his Parole
      Officer. The Parole Officer later notified Eskridge that there was a
      school 900 feet from Mayes’ home and he could not live with her.
      Eskridge testified that he moved out.

             Regarding Rule 10-17, Eskridge gave testimony that he had
      entertained the idea of dating Ms. Mayes, but after reflection and
      conversation with Ms. Mayes regarding his obligations as a parolee,
      he decided not to pursue a relationship with her.

             Eskridge also offered testimony about his involvement in Sex
      Offender treatment (related to Rule 10-1). (The Board found in his
      favor on this allegation.)

            The Board noted that they do not take public testimony on the
      day of a hearing, but acknowledged that Mr. Eskridge had family
      members present on his behalf.

                           Conclusions of Law

14.   Indiana Codes §11-13-3-8 through §11-13-3-10 codify the
      protections afforded a parolee throughout the parole revocation
      process. Although not entitled to the full panoply of due process
      rights afforded to a defendant in a criminal proceeding, a parolee is
      afforded the right to be heard, in person, by a ‘neutral and detached’
      Parole Board and to present evidence on his own behalf. See Piper
      v. State, 770 N.E.2d 880 (Ind. Ct. App. 2002)[, trans. denied,] and
      Harris v. State, 836 N.E.2d 267 (Ind. Ct. App. 2005)[, trans. denied].

                     Waiver of Preliminary Hearing


                                     9
19.[6] [Eskridge’s] assertion, even if true, that he misunderstood what he
       was signing and believed that by signing the waiver he would “get in
       front of the Parole Board” faster, is irrelevant, given that at the
       hearing [Eskridge] was permitted to withdraw the waiver and any
       pleas he had made to Agent Torrance and start over.

20.       Once the waiver and pleas were withdrawn, a member of the Parole
          Board reread each allegation against him and allowed him to enter
          new pleas of guilty or not guilty. He then indicated that he was
          prepared to go forward with the hearing.

21.       [Eskridge] has not shown how he was prejudiced given that he was
          permitted to withdraw his waiver and plea and was afforded a
          hearing for which he was prepared. This claim fails.

     Denial of Due Process Rights to Present Testimony and Evidence at the
                           Parole Violation Hearing

22.       [Eskridge’s] main claim on this issue is that the court did not receive
          and consider letters sent to them by Nina Mayes and his employer as
          well as copies of his driving records from the Bureau of Motor
          Vehicles.

23.       The letter from Ms. Mayes was stamped received on September 28,
          2009, the day of the hearing (State’s Exhibit I). The letter from his
          employer, Michael Weir, was stamped received on September 17,
          2009 (State’s Exhibit J), eleven days before his hearing.

24.       Although it is unclear whether the members of the Parole Board read
          these letters, it would have been inconsequential to the Board’s
          hearing on the violations as both letters spoke only to leniency,
          character and employment verification, and not to the violations
          themselves. ([Eskridge] did not raise . . . the issue of whether or not
          the Parole Board could find him in violation of his release conditions
          and yet require that he serve less than the entire remaining sentence.
          Therefore, the issues of lenience, character and employment are of
          no moment.) As such these claims fail.

25.       As to the BMV records, again, these speak more to character than to
          the violation alleged. [Eskridge’s] main purpose for producing these
          documents was to show the Board that despite being aware of unpaid

6
    The court’s order does not contain paragraphs numbered 15-18.

                                            10
        tickets he was not aware that his failure to pay for these tickets had
        resulted in a license suspension. Unfortunately, the fact that he was
        unaware of the suspension is immaterial. The suspension, justified
        by BMV rules, is enough to find [Eskridge] in violation of his
        parole.

26.     Although the BMV records showing that the suspension was so
        close in time that he may have been unaware of it could have been
        beneficial in mitigation, [Eskridge] was still able to present
        evidence, by way of his own testimony, that he was unaware of the
        suspension. As such, this claim fails.

      The facts supporting the violation were fabricated in nature, and the
          intended restrictions did not reasonably relate to [Eskridge]

27.     The Court infers from the testimony and argument that [Eskridge’s]
        claim here is in relation to the allegation that he violated Rule 10-5;
        the “1000 foot rule”.

28.     The Court in a Post Conviction Relief Hearing is not in a position to
        reweigh the evidence brought before the Parole Board.

29.     The Indiana Parole Board has broad authority to impose additional
        conditions beyond those standard conditions for a parolee as long as
        the conditions are reasonably related to the parolee’s successful
        integration into the community and not unduly restrictive of a
        fundamental right. I.C. §11-13-3-4; see Harris v. State, 836 N.E.2d
        at 273.

30.     [Eskridge] was convicted of committing Class B Felony Criminal
        Deviate Conduct against a sleeping, defenseless victim. In light of
        the particular circumstances of his offense, controls on [Eskridge’s]
        living restrictions could be seen as reasonably related to his
        successful integration into the community. See Weiss v. Indiana
        Parole Board, 838 N.E.2d 1048 (Ind. Ct. App. 2005) (noting that
        although Defendant was not convicted of a sex offense, the special
        sex offender stipulations were reasonably related to his integration
        into the community)[, trans. denied].

31.     Even if the court were to agree that this condition was not reasonable
        or necessary, the Parole Board found two unrelated violations which
        alone are enough to violate the terms of his parole. This claim also
        fails.

                                       11
             IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by
       the Court that the State’s Motion for Summary Disposition is DENIED.

             The Court further orders the Petition for Post-Conviction Relief is
       hereby DENIED.

Appellant’s Appendix at 98-105 (footnotes omitted).

                          ISSUE / STANDARD OF REVIEW

       The issue is whether the court erred in denying Eskridge’s petition for post-

conviction relief. Before discussing Eskridge’s allegations of error, we note that although

Eskridge is proceeding pro se, such litigants are held to the same standard as trained

counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344

(Ind. Ct. App. 2004), trans. denied. We also note the general standard under which we

review a post-conviction court’s denial of a petition for post-conviction relief. The

petitioner in a post-conviction proceeding bears the burden of establishing grounds for

relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.

2004); Ind. Post-Conviction Rule 1(5).       When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment

unless the evidence as a whole unerringly and unmistakably leads to a conclusion

opposite that reached by the post-conviction court. Id. Further, the post-conviction court

in this case entered findings of fact and conclusions thereon in accordance with Indiana

Post-Conviction Rule 1(6). Id. “A post-conviction court’s findings and judgment will be

reversed only upon a showing of clear error – that which leaves us with a definite and

firm conviction that a mistake has been made.” Id. In this review, we accept findings of

                                            12
fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The

post-conviction court is the sole judge of the weight of the evidence and the credibility of

witnesses. Id.

                                       ANALYSIS

       As a general rule, defendants facing potential parole revocation are entitled to a

number of procedural due process rights, which include: written notice of the parole

violation charges; disclosure of the evidence against the parolee; an opportunity to be

heard in person and to present evidence; the right to confront and cross-examine adverse

witnesses; a “neutral and detached” parole hearing board; and a written statement by the

board of the evidence relied upon and the reasons for revoking parole. Harris v. State,

836 N.E.2d 267, 280 (Ind. Ct. App. 2005) (citing Morrissey v. Brewer, 408 U.S. 471,

489, 92 S. Ct. 2593, 2604 (1972)), trans. denied. Parolees also are entitled to a two-stage

revocation procedure: (1) a preliminary hearing to determine whether there is probable

cause to believe that the parolee has committed acts that would constitute a violation of

parole conditions; and (2) a final revocation hearing prior to the final decision on

revocation to consider whether the facts as determined warrant revocation. Id. “By and

large, these constitutional requirements have been embodied in the Indiana Code.”

Komyatti v. State, 931 N.E.2d 411, 416 (Ind. Ct. App. 2010).

       Due process is flexible and calls for such procedural protections as the particular

situation demands. Morrissey, 408 U.S. at 481, 92 S. Ct. at 2600. “Where the purpose

and intent of a statutory mandate are satisfied, this court will not reverse for mere

technical procedural errors unless the defendant can show that he was harmed or

                                            13
prejudiced by such errors.” Id. (quoting Kindred v. State, 173 Ind. App. 624, 629, 365

N.E.2d 776, 779 (1977)).

        Eskridge appears to raise arguments related to: (A) his waiver of a preliminary

hearing; and (B) whether certain evidence was considered at the parole revocation

hearing.7

A.      Waiver

        Eskridge appears to argue that the post-conviction court erred in “failing to rule on

the assertion that the preliminary hearing waiver was defective therefore invalid.”

Appellant’s Brief at 8. He argues that agent Torrance was his supervising agent and “also

the lone officer that conducts the interview with the parolee,” and who arrested him and

forced him to sign his rights waiving his preliminary hearing.” Id. at 8-9. Eskridge

appears to argue that he at no time indicated that he was prepared to go forward with the

hearing. He asserts that “[t]he obvious prejudice would be the denial of the parole

context report explaining the violation to the petitioner due to the illegal waiver.” Id. at

10. Without citation to the record other than to the waiver itself, Eskridge argues that the

waiver document was blank at the time that he signed it. He contends that Agent

Torrance signed the waiver of preliminary hearing as a witness in violation of Ind. Code

§ 11-13-3-9(a), and that the charges should have been dismissed pursuant to Ind. Code §

11-13-3-9(b) and (e). Eskridge argues that the agent in charge of the petitioner is not


        7
          To the extent that Eskridge raises additional issues, he fails to develop a cogent argument and
cite to authority. Consequently, the issues are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1
(Ind. 2006) (holding that the defendant’s contention was waived because it was “supported neither by
cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding
that the defendant waived argument on appeal by failing to develop a cogent argument).

                                                   14
allowed to be involved in any part of the process of the preliminary hearing. He also

states, without citation to the record, that he was “placed under arrest and taken to a van

in the hot sun to wait for Agent Torrance to reappear and badger the petitioner into

signing the waiver.”8 Id. at 19.

        The State argues that neither Ind. Code § 11-13-3-9 nor Morrissey states that the

employee who performed the arrest may not be a witness to a parolee’s waiver of a

preliminary hearing. The State maintains that even assuming there was a deficiency in

Eskridge’s waiver, he has not established that the post-conviction court erred in denying

him relief because Eskridge was permitted to withdraw the waiver at the hearing before

the Board and then pled guilty to violating Rule 10-5.

        With respect to a preliminary hearing, the United States Supreme Court has held

that “due process requires that after the arrest, the determination that reasonable ground

exists for revocation of parole should be made by someone not directly involved in the

case.” Morrissey, 408 U.S. at 485, 92 S. Ct. at 2602. The Court also concluded that

“there should be an uninvolved person to make this preliminary evaluation of the basis

for believing the conditions of parole have been violated.” Id. at 486, 92 S. Ct. at 2602.

        8
            The record reveals the following exchange during the cross-examination of Agent Torrance:

        Q         . . . Did he initially agree to sign a waiver?

        A         Initially he did not, initially he said that he wanted to have a hearing and he
                  wouldn’t sign it. This is when we were in the hallway of the parole office. He
                  walked out, he was taken out by two other agents into a van, um, I stayed in the
                  building for a second, I walked back out, by the time I got to the van I was
                  informed that he now he wanted to waive his rights to a preliminary hearing and
                  at that time he was uncuffed and he was given the form which he signed and
                  initialed.

Transcript at 18.

                                                       15
Specifically, the Court held that “[i]t will be sufficient . . . in the parole revocation

context, if an evaluation of whether reasonable cause exists to believe that conditions of

parole have been violated is made by someone such as a parole officer other than the one

who has made the report of parole violations or has recommended revocation.” Id. at

486, 92 S. Ct. at 2603.

       Ind. Code § 11-13-3-9 provides:

       (a)    Upon the arrest and confinement of a parolee for an alleged violation
              of a condition to remaining on parole, an employee of the
              department (other than the employee who reported or investigated
              the alleged violation or who recommended revocation) shall hold a
              preliminary hearing to determine whether there is probable cause to
              believe a violation of a condition has occurred. The hearing shall be
              held without unneccessary delay. In connection with the hearing,
              the parolee is entitled to:

              (1)    appear and speak in his own behalf;

              (2)    call witnesses and present evidence;

              (3)    confront and cross-examine witnesses, unless the
                     person conducting the hearing finds that to do so
                     would subject the witness to a substantial risk of harm;
                     and

              (4)    a written statement of the findings of fact and the
                     evidence relied upon.

       (b)    If it is determined there is not probable cause to believe the parolee
              violated a condition to remaining on parole, the charge shall be
              dismissed.

       (c)    If it is determined from the evidence presented that there is probable
              cause to believe the parolee violated a condition to remaining on
              parole, confinement of the parolee may be continued pending a
              parole revocation hearing.



                                            16
          (d)    If the alleged violation of parole is the parolee’s conviction of a
                 crime while on parole, the preliminary hearing required by this
                 section need not be held.

          (e)    Unless good cause for the delay is established in the record of the
                 proceeding, the parole revocation charge shall be dismissed if the
                 preliminary hearing is not held within ten (10) days after the arrest.

          (f)    A parolee may waive his right to a preliminary hearing.

          We observe that neither Morrissey nor Ind. Code § 11-13-3-9 explicitly prohibits

an employee that filed a report alleging a parole violation from signing a waiver of

preliminary hearing form as a witness. Further, at the post-conviction hearing, Agent

Torrance testified that Eskridge interacted with Agent Green, and Agent Green informed

Agent Torrance that Eskridge was ready to sign the form. Eskridge signed a form that

stated:

                         WAIVER OF PRELIMINARY HEARING

          I have read and understand the purpose of a preliminary hearing as on the
          Notice of Preliminary Hearing. I understand that by waiving my right to a
          preliminary hearing, I am giving up the right to: appear and speak on my
          own behalf, call witnesses and present evidence, confront and cross
          examine witnesses brought against me, and to receive a written statement of
          the findings of fact and the evidence relied upon at the preliminary hearing.
          I am also giving up the right to have the presence and participation of
          counsel at the preliminary hearing.

                                            *****

          I have read and understand the Notice of Preliminary Hearing and the
          Waiver of Preliminary Hearing and the rights described therein. My
          signature below verifies my knowledge and understanding and my
          voluntary waiver of these rights. I have not been threatened or coerced in
          any manner into signing that waiver and I understand that this waiver in no
          way affects my rights to a final parole revocation hearing.



                                               17
Exhibit Q. To the extent that Eskridge cites to subsections (b) and (e) of Ind. Code § 11-

13-3-9, based upon the record, we conclude that Eskridge waived the right to have a

preliminary hearing. See Ind. Code § 11-13-3-9(f) (“A parolee may waive his right to a

preliminary hearing.”). Even assuming that Eskridge’s waiver was improper, we cannot

say that reversal is warranted. “Failure to hold a preliminary hearing is not, by itself,

reversible error.” Wilson v. State, 403 N.E.2d 1104, 1105 (Ind. Ct. App. 1980). A

parolee must demonstrate that he was prejudiced by such failure, and the burden of

showing the prejudice falls upon the parolee. See id. The record reveals that Eskridge

received notice of the parole violation hearing, and at the hearing which occurred

approximately a month after the parole violation report, Eskridge indicated that he was

ready to proceed. After a discussion regarding the waiver form, a member of the board

indicated that he would read the allegations and take Eskridge’s pleas “such as they

would have done on a preliminary hearing.” Exhibit L. Eskridge pled guilty to violating

Rule 10-5 and testified regarding the alleged violations. To the extent that Eskridge

argues that “[t]he obvious prejudice would be the denial of the parole context report

explaining the violation to the petitioner due to the illegal waiver,” Appellant’s Brief at

10, we observe that Eskridge does not point to the parole context report and the record

reveals that a member of the Board read the allegations to Eskridge at the revocation

hearing. Further, the conditions that Eskridge allegedly violated were set forth on the

Waiver of Preliminary Hearing form and included on the Notice of Parole Violation

Hearing signed by him. Under the circumstances, we cannot say that the evidence as a



                                            18
whole unerringly and unmistakably leads to a conclusion opposite that reached by the

post-conviction court.

B.     Evidence at Parole Revocation Hearing

       Eskridge argues that he had letters and witnesses present at the revocation hearing

and that “[a]ll of this should have been considered. Obviously it was not.” Appellant’s

Brief at 15. Eskridge argues that the Board denied him a sufficient opportunity to present

a defense to the revocation claims and therefore violated his due process rights.

       The State argues that Eskridge waived any claim regarding the exclusion of

witness testimony because he did not identify the exclusion of witness testimony in his

petition for post-conviction relief. The State also argues that Eskridge failed to show any

prejudice from the exclusion of witness testimony. With respect to the documentary

evidence, the State argues that the letter from Nina Mayes and the letter from his

employer were received prior to the hearing before the Board and that it is customary for

each participating member to receive a copy of such documents. The State argues that

the BMV driving record actually corroborated Eskridge’s violation of Rule 4(b) in that it

demonstrated that his license was suspended while he was on parole. The State also

contends that Eskridge was not harmed by his alleged due process violation because he

pled guilty to one violation and tacitly admitted to another.

       The record reveals that the letters from Eskridge’s mother, Nina Mayes, and

Foundry Services were stamped as being received prior to the revocation hearing.

Moreover, as observed by the post-conviction court, the letters appear to relate to the

issue of leniency on sentencing, and Eskridge does not appear to argue that the Board

                                             19
erred by ordering that he be assessed the balance of his sentence. With respect to

potential witnesses, Eskridge called only Lakisha Eskridge as a witness at the post-

conviction hearing and Eskridge merely asked Lakisha, “you was willing to testify in my

behalf at the hearing but was not able to,” and Lakisha stated, “Yes.” Transcript at 58.

Under the circumstances, we cannot say that the evidence as a whole unerringly and

unmistakably leads to a conclusion opposite that reached by the post-conviction court.

See Jamerson v. State, 182 Ind. App. 99, 102-103, 394 N.E.2d 222, 224 (1979) (holding

that even though the defendant’s alleged injury is potentially of constitutional

proportions, we will not reverse when counsel has failed to suggest any mitigating

circumstances which the constitutional and statutory remedies were designed to advance).

       For the foregoing reasons, we affirm the post-conviction court’s denial of

Eskridge’s petition for post-conviction relief.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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