MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Jun 24 2019, 6:58 am

court except for the purpose of establishing                                    CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Terry J. Morgan                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Natalie F. Weiss
                                                         Patricia C. McMath
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Terry J. Morgan,                                         June 24, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-MI-1762
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Respondent.                                     Sims, Judge
                                                         The Honorable Kevin M. Eads,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         48C01-1801-MI-14



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019                      Page 1 of 6
[1]   Terry J. Morgan (“Morgan”) appeals the Madison Superior Court’s denial of

      his petition for habeas corpus following the Parole Board’s determination that

      he had violated his parole.


[2]   Morgan presents two issues for our review, which we restate as:


              1.       Whether the trial court committed error by considering his
                       petition for habeas corpus as a petition for post-conviction
                       relief; and,


              2.       Whether the trial court committed error by granting the
                       State’s Motion for Summary Disposition.


[3]   We affirm.


                                 Facts and Procedural History

[4]   In August 2004, Morgan was convicted of Robbery Resulting in Bodily Injury

      in Vigo County, Indiana. As a result, he was sentenced to twenty years of

      incarceration, with credit time for 192 days served in the Vigo County Jail in

      addition to 1:1 good credit time for a total of 384 days. He was mandatorily

      paroled on February 16, 2016. A warrant for parole violation was issued four

      months later, on June 28, 2019, and served the next day.

[5]   On July 6, 2019, Morgan signed a waiver of preliminary hearing and pleaded

      guilty to violating two conditions of his parole. He admitted to violating Rule

      5B which prohibited “[u]sing, possessing, or trafficking illegally in a controlled

      substance” after testing positive for cocaine and marijuana. Appellant’s App. p.

      98. He also admitted to violating Rule 10, which provided that he would
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019   Page 2 of 6
      “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” when

      he failed to report for a substance abuse appointment, complete a substance

      abuse evaluation, and attend substance abuse treatment. Id.


[6]   After he was re-incarcerated, Morgan filed a habeas petition claiming that he

      was unlawfully detained because he was not informed that substance abuse

      evaluations and treatment classes were conditions of his parole. The State then

      filed a Motion for Summary Disposition, arguing that Morgan’s incarceration

      was not unlawful because he pleaded guilty to these parole violations. The trial

      court granted the State’s motion on November 16, 2018. Morgan now appeals.


                                     Discussion and Decision
[7]   Indiana Code section 34 -25.5-1-1 provides that “[e]very 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.” “The purpose of the writ of habeas corpus is

      to bring the person in custody before the court for inquiry into the cause of

      restraint.” Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980

      (Ind. Ct. App. 2001), superseded by statute on other grounds. “One is entitled

      to habeas corpus only if he is entitled to his immediate release from unlawful

      custody.” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019   Page 3 of 6
[8]    “While on parole the parolee remains in legal custody because, although parole

       is an amelioration of punishment it is, in legal effect, still imprisonment.” Page

       v. State, 517 N.E.2d 427, 430 (Ind. Ct. App. 1988), trans. denied.


[9]    We review the grant of a motion for summary disposition in post-conviction

       proceedings the same way we would a motion for summary judgment. Norris v.

       State, 896 N.E.2d 1149, 1151 (Ind. 2008). We review a trial court’s habeas

       decision for an abuse of discretion. Benford v. Marvel, 842 N.E.2d 826, 828 (Ind.

       Ct. App. 2006). Without reweighing the evidence this court considers only that

       evidence most favorable to the judgment and reasonable inferences drawn

       therefrom. Id.


[10]   Morgan initially argues that it was error for the trial court to consider his

       petition as a petition for post-conviction relief as opposed to a petition for

       habeas corpus. A petitioner should file a petition for post-conviction relief

       instead of a petition for a writ of habeas corpus when he claims his parole was

       improperly revoked, unless he is claiming that he is entitled to immediate

       release. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008); Hale v. Butts,

       88 N.E.3d 211, 214 (Ind. Ct. App. 2017). However, “if a petitioner erroneously

       captions his action as petition for a writ of habeas corpus rather than post-

       conviction relief, courts will frequently and properly treat the petition as one for

       post-conviction relief, based on the content of the petition, rather than the

       caption. Partlow, 756 N.E.2d at 980 (citing Hawkins v. Jenkins, 374 N.E.2d 496,

       498 (Ind. 1978)). Because Morgan asks us to decide the merits of his case, we

       need not decide whether the trial court properly determined that Morgan’s

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019   Page 4 of 6
       petition requested post-conviction relief. See Partlow, 756 N.E.2d at 981

       (deciding habeas corpus petition on the merits despite trial court’s

       misclassification of the petition as one for post-conviction relief). Thus, we

       address the merits of the matter.

[11]   Morgan argues that he was not provided notice that he was required to attend a

       substance abuse evaluation and classes.1 He admits the substance abuse

       recommendation “had been verbally communicated to Morgan by his parole

       agent.” Appellant’s Br. at 9. He also admits the “agents of Community

       Outreach Network Services were attempting to contacting [sic] him[.]”

       Appellant’s Br. at 8. Regardless, Morgan signed a waiver of preliminary hearing

       in which he pleaded guilty to violations of his parole agreement, including the

       violation of which he presently complains he did not have proper notice.

       Appellant’s App. p. 99. Because he admitted to the violation of which he

       complains he did not have proper notice, in addition to testing positive for

       cocaine and marijuana, we find this argument unavailing.


                                                     Conclusion
[12]   Because Morgan pleaded guilty to both violations of his parole, he is not

       unlawfully incarcerated. Additionally, because Morgan asks us to address the

       merits of this matter concerning his parole, we consider his pleading as a




       1
         Morgan also argues that the warrant was issued without probable cause. Notwithstanding the fact that he
       tested positive for cocaine and marijuana, he first raises this issue on appeal, and therefore this argument is
       waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019                         Page 5 of 6
       petition for post-conviction relief. We affirm the trial court’s granting of the

       State’s Motion for Summary Disposition.

[13]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019   Page 6 of 6
