                                                                       FILED
                                                                  Aug 23 2016, 9:39 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Tyrone Grayson                                            Gregory F. Zoeller
Greencastle, Indiana                                      Attorney General of Indiana

                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Grayson,                                           August 23, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          67A01-1511-MI-1943
        v.                                                Appeal from the Putnam Superior
                                                          Court
State of Indiana,                                         The Honorable Charles D. Bridges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          67D01-1506-MI-117



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016                  Page 1 of 7
                                           Case Summary
[1]   The Indiana Parole Board alleged that Tyrone Grayson violated his parole by

      committing a new offense. The parole board alleged that Grayson was on

      parole for one particular sentence when he committed the new offense. After

      Grayson’s parole was revoked, he filed an application for a writ of habeas

      corpus alleging that he was not on parole for that sentence when he committed

      the new offense. Realizing a mistake in the records, the Indiana Department of

      Correction fixed the records to show that Grayson was on parole for a different

      sentence when he committed the new offense. Without a new parole-

      revocation hearing, the State submitted to the trial court corrected records to

      support Grayson’s parole revocation, and the trial court—construing Grayson’s

      habeas application as a petition for post-conviction relief—found that Grayson

      was not entitled to relief.

[2]   Because parolees charged with violations of parole are within the protection of

      the Due Process Clause of the Fourteenth Amendment, we find that Grayson

      was entitled to an opportunity to be heard on the allegation that he violated

      parole for the correct sentence. We therefore reverse.



                             Facts and Procedural History
[3]   In October 2002, Grayson was sentenced to twenty years for attempted robbery

      and ten years for unlawful possession of a firearm by a serious violent felon in

      Marion Superior Court in Cause No. 49G01-0108-CF-164749. The trial court


      Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016   Page 2 of 7
      ordered the sentences to be served consecutively. Appellee’s App. p. 9. A

      couple months later, in December 2002, Grayson was sentenced to four years in

      Marion Superior Court in Cause No. 49G04-9612-CF-195611 for violating his

      probation for an unrelated conviction. Id. at 11. The parties agree that this

      sentence was to be served consecutive to the sentence in Cause No. 164749.

[4]   Grayson was released to parole on July 18, 2013. Id. at 12. He committed a

      new offense—unlawful possession of a firearm by a serious violent felon—in

      February 2014, and the Marion Superior Court sentenced him to twelve years

      in Cause No. 49G20-1402-FB-9085. Id. at 13. The parole board alleged that

      Grayson violated his parole for his twenty-year sentence for attempted robbery

      in Cause No. 164749 for committing this new offense. Id. at 18 (“Notification

      of Parole Violation Hearing”), 19 (“Evidence Relied Upon and Findings of

      Fact” listing “Paroling Crime/Sentence” as “Attempted Robbery, B Felony, 20

      Years”). Grayson waived his preliminary hearing, and a parole-revocation

      hearing was held. The parole board revoked Grayson’s parole and “assessed

      the balance of [his] sentence” on his twenty-year sentence for attempted robbery

      to be served before he began his twelve-year sentence for the new offense. Id. at

      17 (“Notice/Disposition By Parole Board”).

[5]   In June 2015, Grayson, pro se, filed an application for a writ of habeas corpus

      in Putnam Superior Court (the county where he was incarcerated), which the

      trial court construed as a petition for post-conviction relief. Grayson alleged

      that his parole was improperly revoked because he should have already been

      discharged from parole for his twenty-year sentence in Cause No. 164749 when

      Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016   Page 3 of 7
      he committed the new offense in February 2014. The State filed a response and

      a motion to dismiss or for summary disposition. Specifically, the State

      acknowledged that Grayson was discharged from parole for his twenty-year

      sentence in Cause No. 164749 in June 2010—well before he committed the new

      offense in February 2014. Id. at 5. However, the State claimed that Grayson

      was on parole for his ten-year sentence in Cause No. 164749 when he

      committed the new offense, even though the parole board had alleged that

      Grayson was on parole for his twenty-year sentence. See id. at 19. The State

      conceded that there was “some confusion in the records” but assured the trial

      court that the “paperwork was corrected once [the application for a writ of

      habeas corpus] was filed” and that the corrected paperwork showed that

      Grayson was indeed on parole for his ten-year sentence when he committed the

      new offense. Id. at 6. The trial court granted the State’s motion to dismiss and

      for summary disposition as follows:

              Construed as a petition for post-conviction relief challenging the
              revocation of parole . . ., Grayson is not entitled to relief because
              [the State has] demonstrated through the attachments to [its]
              response and motion that he was in fact on parole at the time he
              violated that parole by committing a new crime.


      Appellant’s App. p. 32. Grayson filed a motion to correct errors, which the trial

      court denied.

[6]   Grayson, pro se, now appeals.




      Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016       Page 4 of 7
                                  Discussion and Decision
[7]   Grayson challenges the revocation of his parole. Although Grayson filed an

      application for a writ of habeas corpus in the county where he was incarcerated,

      the trial court (although not the conviction court) properly treated it as a

      petition for post-conviction relief because Grayson is challenging the revocation

      of his parole and is not claiming that he is entitled to immediate release, which

      is a requirement for habeas relief.1 See Ind. Post-Conviction Rule 1(1)(a)(5);

      Hawkins v. Jenkins, 268 Ind. 137, 374 N.E.2d 496, 498 (1978); Hardley v. State,

      893 N.E.2d 740, 743 (Ind. Ct. App. 2008); Partlow v. Superintendent, Miami Corr.

      Facility, 756 N.E.2d 978, 981 (Ind. Ct. App. 2001), superseded by statute on other

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

      denied.


[8]   Grayson argues that his parole was improperly revoked because he should not

      have been on parole for his twenty-year sentence when he committed the new

      offense and that the process of revoking his parole violated Morrissey v. Brewer.

      Appellant’s Br. p. 9-10. Parolees charged with violations of parole are within

      the protection of the Due Process Clause of the Fourteenth Amendment.

      Morrissey v. Brewer, 408 U.S. 471, 482 (1972). As such, parolees are entitled to a

      two-stage parole-revocation procedure: (1) a preliminary hearing to determine




      1
       Grayson agrees that “he wasn’t due for immediate discharge” because of his twelve-year sentence for the
      new offense he committed in February 2014. Appellant’s Br. p. 10. Indeed, according to the Indiana
      Department of Correction’s Offender Search, Grayson’s projected release date for this offense is March 16,
      2021. Indiana Department of Correction, Offender Search, http://www.in.gov/apps/indcorrection/ofs/ofs.

      Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016                        Page 5 of 7
      whether there is probable cause to believe that the arrested parolee has

      committed acts that would constitute a violation of parole conditions and (2) a

      revocation hearing before the final decision on revocation to consider whether

      the facts as determined warrant revocation. Id. at 485-88; Komyatti v. State, 931

      N.E.2d 411, 416 (Ind. Ct. App. 2010). The minimum requirements of due

      process include written notice of the claimed parole violations, disclosure to the

      parolee of the evidence against him, 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.

      Morrissey, 408 U.S. at 489-90; Komyatti, 931 N.E.2d at 416.


[9]   Here, the parole board alleged that Grayson violated his parole for his twenty-

      year sentence for attempted robbery in Cause No. 164749 for committing the

      new offense in February 2014. But after Grayson’s parole was revoked and he

      filed the habeas application, the State admitted that Grayson was discharged

      from parole on that sentence in June 2010, well before he committed the new

      offense. Appellee’s Br. p. 7; Appellee’s App. p. 5, 20. Although conceding “an

      administrative error on the part of the Department of Correction” that was

      “corrected” “after this case was filed,” the State argues that Grayson’s

      revocation should be affirmed because those corrected documents show that

      Grayson was on parole for his ten-year sentence in Cause No. 164749 when he

      committed the new offense. Appellee’s Br. p. 12 (emphasis added).




      Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016   Page 6 of 7
[10]   Morrissey demands more in this case. That is, Grayson was entitled to an

       opportunity to be heard on the allegation that he violated parole for his ten-year

       sentence in Cause No. 164749. He also had the right to present evidence and

       the right to confront and cross-examine adverse witnesses. He was not afforded

       those rights when the State, in the post-conviction proceeding, submitted

       “corrected” documents to the court to prove by summary disposition that he

       was on parole for an entirely different sentence.2 See Ind. Post-Conviction Rule

       1(4)(g) (“The court may grant a motion by either party for summary disposition

       . . . when it appears . . . that there is no genuine issue of material fact and the

       moving party is entitled to judgment as a matter of law.”). We therefore reverse

       the trial court’s grant of the State’s motion to dismiss and for summary

       disposition with instructions to grant post-conviction relief on the parole

       revocation of Grayson’s twenty-year sentence for attempted robbery in Cause

       No. 164749.

[11]   Reversed.


       Baker, J., and Najam, J., concur.




       2
         Grayson was sentenced to the balance of his twenty-year attempted-robbery sentence for violating his
       parole. If the State’s corrected documents are accurate, then Grayson was on parole for only a ten-year
       sentence when he committed the new offense. It is likely that a defendant who is revoked on a ten-year
       sentence would face less time than a defendant who is revoked on a twenty-year sentence. See Ind. Code §
       35-50-6-1(c).

       Court of Appeals of Indiana | Opinion 67A01-1511-MI-1943| August 23, 2016                       Page 7 of 7
