MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Apr 20 2015, 9:35 am
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.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

William D. Polansky                                       Kristin Garn
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

William R. Koenig,                                        April 20, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          48A02-1412-MI-866
        v.                                                Appeal from the Madison Circuit
                                                          Court
                                                          Cause No. 48C06-1409-MI-567
Wendy Knight,
Appellee-Respondent.                                      The Honorable Dennis D. Carroll,
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015    Page 1 of 7
                                             Case Summary
[1]   William Koenig appeals the trial court’s denial of his petition for writ of habeas

      corpus and immediate release. We affirm.


                                                      Issue
[2]   Koenig raises one issue, which we restate as whether the trial court properly

      denied his petition for writ of habeas corpus and immediate release from the

      Department of Correction (“DOC”).


                                                      Facts
[3]   In 1991, Koenig was charged with several offenses in cause number 82C01-

      9104-CF-247 (“CF-247”). In 1992, Koenig was convicted of Class C felony

      battery, Class A felony attempted robbery, and Class A felony conspiracy to

      commit robbery. Koenig was sentenced to forty years on each of the Class A

      felonies and ordered to serve those sentences concurrently. He was sentenced

      to eight years on the battery conviction and ordered to serve that sentence

      consecutive to the other sentences, for a total sentence of forty-eight years. In

      1998, in post-conviction relief proceedings, the battery conviction and its eight-

      year sentence were vacated on double jeopardy grounds, and Koenig’s sentence

      was reduced to forty years.


[4]   As of January 5, 2005, the DOC calculated Koenig’s projected release date to

      be October 20, 2008. On April 18, 2005, a hearing was held on a petition to

      modify Koenig’s sentence, and the trial court approved an agreement to modify

      his sentence to thirty-two years. Because of credit time earned, Koenig was
      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015   Page 2 of 7
      eligible for immediate release, and he was released from the DOC on April 29,

      2005.


[5]   On January 12, 2006, new charges were filed against Koenig in cause number

      82D02-06010-FB-37 (“FB-37”). Koenig was then convicted of Class B felony

      possession of a handgun by a serious violent felon and sentenced to twelve

      years in the DOC.


[6]   On January 10, 2007, after a hearing, the parole board found Koenig guilty of

      violating parole in CF-247, revoked his parole, and ordered him to serve the

      balance of that sentence. Koenig was to begin serving the sentence on FB-37

      after serving the remainder of the CF-247 sentence, which was just under four

      years.


[7]   On September 14, 2014, Koenig filed a petition for writ of habeas corpus and

      immediate release arguing he was not on parole for CF-247 when he committed

      the offense charged in FB-37 and should not have been required to serve the

      remainder of that sentence. He claimed that he finished serving his sentence for

      FB-37 on June 9, 2012, and was entitled to immediate release.


[8]   The State responded, arguing that Koenig’s parole began when he was released

      on April 29, 2005, and that he was still on parole when the new charges were

      filed. On October 15, 2014, the trial court calculated Koenig’s release date on

      CF-247 to be August 2, 2007, and concluded that, because he had not




      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015   Page 3 of 7
       completed his sentence, he was on parole when he committed the new offense. 1

       On November 13, 2014, Koenig filed a motion to correct error, which the trial

       court denied. Koenig now appeals.


                                                        Analysis
[9]    “The purpose of a writ of habeas corpus is to determine the lawfulness of

       custody or detention of the defendant and may not be used to determine

       collateral matters not affecting the custody process.” Hardley v. State, 893

       N.E.2d 740, 742 (Ind. Ct. App. 2008). If a defendant is unlawfully incarcerated

       and is entitled to immediate release, he or she is entitled to a writ of habeas

       corpus. Id. “We review the trial court’s habeas decision for an abuse of

       discretion.” Id.


[10]   The parole statute in effect at the time Koenig committed the offenses charged

       in CF-247 provided in part:

                (a) When a person imprisoned for a felony completes his fixed term of
                imprisonment, less the credit time he has earned with respect to that
                term, he shall be released:
                         (1) on parole; or
                         (2) to the committing court if his sentence included a period of
                         probation.
                (b) A person released on parole remains on parole from the date of his release
                until his fixed term expires, unless his parole is revoked or he is
                discharged from that term by the Indiana parole board. In any event,



       1
         The parties’ agree that the trial court’s calculation of Koenig’s release date is incorrect. They also present
       other possible release dates based on credit time variations, but none of them are outcome determinative.
       Thus, for simplicity, we use these dates as the basis for our analysis.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015                  Page 4 of 7
               if his parole is not revoked, the parole board shall discharge him not
               more than one (1) year after the date of his release.
       Ind. Code § 35-50-6-1 (1990) (emphases added).


[11]   Koenig contends that, upon approval of the modification of his sentence from

       forty years to thirty-two years, his projected release date of October 20, 2008,

       should have changed to October 20, 2004, when taking into account credit

       time. He contends that the parole board could have subjected him to one year

       of parole beginning on the recalculated projected release date of October 20,

       2004, and ending on October 19, 2005. Alternatively, Koenig argues that the

       parole board could have determined that his parole began on April 29, 2005, his

       actual release date, and allowed him to serve less one year on parole so that his

       term of parole ended on October 19, 2005. In either event, Koenig asserts that

       he would not have been on parole when he committed FB-37 in January 2006.


[12]   We review a question of statutory interpretation de novo. Bei Bei Shuai v. State,

       966 N.E.2d 619, 627 (Ind. Ct. App. 2012), trans. denied. In interpreting a

       statute, we first decide if the statute is ambiguous and, if it is not, we need not

       and do not interpret it, but instead apply its plain and clear meaning. Id. “We

       assume the legislature intended for the statutory language to be applied in a

       logical manner consistent with the statute’s underlying policy and goals.” Id. at

       628.


[13]   The State asserts that, because Indiana Code Section 35-50-6-1(b) refers to the

       “date of his release,” that date, not Koenig’s projected release date, is the relevant

       date for determining when his parole began. I.C. § 35-50-6-1(b). We agree.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015   Page 5 of 7
       There simply is no statutory authority requiring parole to begin on a

       defendant’s retroactive projected release date. Further, even if the parole board

       could have imposed a shorter term of parole, there was no statutory authority

       requiring it to do so. Nor is there any indication that Koenig had been

       discharged from parole prior to the commission of FB-37.


[14]   This conclusion is in keeping with the purpose of parole, which is “‘to help

       individuals reintegrate into society as constructive individuals as soon as they

       are able, without being confined for the full term of the sentence imposed.’”

       Harris v. State, 836 N.E.2d 267, 272 (Ind. Ct. App. 2005) (quoting Morrissey v.

       Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598 (1972)), trans. denied. If we were

       to adopt Koenig’s argument, he would have effectively severed six months of

       his parole while still incarcerated. Moreover, because his sentence modification

       was not approved until April 18, 2005, it can hardly be said that the time he was

       incarcerated from October 20, 2004 until April 18, 2005 helped him integrate

       into society as a constructive individual.


[15]   We are mindful that in limited circumstances, a defendant serving consecutive

       sentences may be on parole for the first sentence while incarcerated on the

       consecutive sentence. See, e.g., Mills v. State, 840 N.E.2d 354, 360 (Ind. Ct. App.

       2006); Hannis v. Deuth, 816 N.E.2d 872, 877 (Ind. Ct. App. 2004). However,

       these cases do not stand for the proposition that a defendant may be

       incarcerated while on parole for the same sentence and do not support Koenig’s

       argument.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015   Page 6 of 7
[16]   Koenig also argues that, because the DOC records did not accurately reflect his

       projected release date, it was not apparent to the parole board when his parole

       began. He also contends that had the modification been adjudicated earlier, he

       would have been released earlier. However, because of our conclusion that

       Koenig’s parole began on the actual date of his release, April 29, 2005, these

       argument are unavailing.


[17]   Koenig’s parole began on April 29, 2005, and there is no evidence that he had

       been discharged prior to his commission of FB-37. As such he has not

       established that he was erroneously required to serve the remainder of his

       sentence for CF-247. The trial court properly denied Koenig’s petition for writ

       of habeas corpus and immediate release.


                                                 Conclusion
[18]   Because Koenig’s parole began on his release date, he was on parole when he

       committed the new offense, and the trial court properly denied his petition for

       writ of habeas corpus and immediate release. We affirm.


[19]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1412-MI-866 | April 20, 2015   Page 7 of 7
