MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Jul 09 2020, 9:05 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
James W. Baker, Jr.                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana

                                                          David A. Arthur
                                                          Senior Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James W. Baker, Jr.,                                      July 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-PC-478
        v.                                                Appeal from the Sullivan Superior
                                                          Court
State of Indiana,                                         The Honorable Hugh R. Hunt,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          77D01-1912-PC-749



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020                   Page 1 of 9
                                         Statement of the Case
[1]   James W. Baker, Jr. appeals the post-conviction court’s summary denial of his

      petition for post-conviction relief. Baker raises three issues for our review,

      which we restate as the following issues: 1


               1.       Whether the post-conviction court erred when it
                        summarily denied Baker’s claim that the Indiana Parole
                        Board (“the Board”) violated his due process rights when
                        it revoked his parole.


               2.       Whether the Board illegally allocated certain time served
                        by Baker to an inapplicable offense.


               3.       Whether the court erred when it summarily denied Baker’s
                        claim that the Board had failed to revoke Baker’s parole
                        within the relevant statutory timeframe.


[2]   We affirm.


                                   Facts and Procedural History
[3]   In January of 2013, the Bartholomew Circuit Court sentenced Baker to eight

      years in the Department of Correction on two Class C felony burglary

      convictions. With other sentences that Baker was also serving, Baker had a




      1
        The post-conviction court alternatively denied Baker’s petition on the ground that he had failed to exhaust
      his administrative remedies. All parties agree on appeal agree that that rationale for the post-conviction
      court’s judgment was erroneous. Given our disposition of the other issues, however, we need not consider
      that alternative basis for the post-conviction court’s judgment.

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020                        Page 2 of 9
      latest possible release date of October 21, 2021, for the Class C felony burglary

      convictions.


[4]   On January 12, 2017, the Board released Baker to two years of parole on the

      two burglary offenses. Among other conditions of his release, Baker agreed in

      writing to refrain from conduct prohibited by law. About five weeks later,

      Baker’s mother reported to law enforcement that he had stolen a vehicle. Baker

      was apprehended in May, and shortly thereafter the State charged him with

      numerous offenses in both Hancock County and Hamilton County.


[5]   The Board placed a detainer on Baker on June 9 for violating, among other

      things, the condition of his release that he not commit additional offenses. On

      June 13, Baker executed a waiver of his rights to a preliminary hearing before

      the Board with respect to those allegations. In September, the Hancock

      Superior Court sentenced Baker on his convictions for the Hancock County

      offenses. And, on December 20, 2018, the Hamilton Circuit Court sentenced

      Baker on his convictions for the Hamilton County offenses.


[6]   Following the resolution of the new offenses, on January 4, 2019, the Board

      served notice on Baker that it would hold a parole violation hearing on January

      9. At that hearing, the Board found that Baker had violated the conditions of

      his release when he committed the offenses for which he had been convicted by

      the Hancock Superior Court and the Hamilton Circuit Court. The Board then

      revoked Baker’s parole on the underlying Class C felony burglary convictions




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020   Page 3 of 9
      and ordered him to serve the balance of his time on those convictions

      consecutive to his sentences on the new convictions.


[7]   In December, Baker filed his petition for post-conviction relief. In his petition,

      he alleged that the Board unlawfully revoked his parole. Specifically, he

      alleged, in relevant part, that the Board violated his due process rights when the

      Board extended his maximum possible release date on the Class C felony

      convictions. He further alleged that the Board had incorrectly allocated time he

      had served between his sentencing for the Hancock County offenses and the

      final revocation hearing, and that the Board’s January 2019 revocation hearing

      was untimely.


[8]   Baker attached documents to his petition. The State responded and also

      attached documents in support of its response. The State further requested the

      court summarily deny Baker’s petition based on the pleadings and attachments.

      The court granted the State’s request and summarily denied Baker’s petition for

      post-conviction relief. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[9]   Baker appeals the post-conviction court’s summary denial of his petition for

      post-conviction relief. As we have explained:


              We review the grant of a motion for summary disposition in
              PCR proceedings on appeal in the same way as a motion for
              summary judgment in a civil matter. Norris v. State, 896 N.E.2d
              1149, 1151 (Ind. 2008). Thus, summary disposition—like
      Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020   Page 4 of 9
               summary judgment—is a matter for appellate de novo review. Id.
               Post-Conviction Rule 1(4)(g) provides:


                        The court may grant a motion by either party for summary
                        disposition of the petition when it appears from the
                        pleadings, depositions, answers to interrogatories,
                        admissions, stipulations of fact, and any affidavits
                        submitted, that there is no genuine issue of material fact
                        and the moving party is entitled to judgment as a matter of
                        law. The court may ask for oral argument on the legal
                        issue raised. If an issue of material fact is raised, then the
                        court shall hold an evidentiary hearing as soon as
                        reasonably possible.


               A PC court is permitted to summarily deny a petition for PCR
               only if the pleadings conclusively show the petitioner is entitled
               to no relief as a matter of law. Gann v. State, 550 N.E.2d 803, 804
               (Ind. Ct. App. 1990). The necessity of an evidentiary hearing is
               avoided when the pleadings show only issues of law. Id. The
               need for a hearing is not avoided, however, when a
               determination of the issues hinges, in whole or in part, upon facts
               not resolved. Id. This is true even though the petitioner has only
               a remote chance of establishing his claim. Id. at 804-805.


       Brown v. State, 131 N.E.3d 740, 742-43 (Ind. Ct. App. 2019), trans. denied.


                               Issue One: Alleged Due Process Violation

[10]   We first consider Baker’s allegation that the Board violated his due process

       rights. As we have explained:


               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, 92 S. Ct.
               2593, 33 L. Ed. 2d 484 (1972). As such, parolees are entitled to a
       Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020       Page 5 of 9
               two-stage parole-revocation procedure: (1) a preliminary hearing
               to determine 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, 92 S. Ct. 2593;
               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, 92 S. Ct. 2593; Komyatti, 931 N.E.2d at 416.


       Grayson v. State, 58 N.E.3d 998, 1001 (Ind. Ct. App. 2016).


[11]   Baker’s argument on this issue is less than clear. He appears to assert that he

       was not given notice that he might have been found to have violated his parole

       for reasons other than the commission of new offenses. He then asserts that,

       “[d]ue to” the lack of notice on those other purported violations of his parole,

       “it was constitutionally impermissible” for the Board to order him to serve the

       balance of his paroled term. Appellant’s Br. at 18.


[12]   But we do not see the relevance of Baker’s assertions. He was given notice that

       he had been alleged to have committed new offenses. He was given all the due

       process protections described above with respect to those allegations. And the

       Board revoked his parole on that basis. Accordingly, Baker has failed to carry




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020   Page 6 of 9
       his burden to show that the post-conviction court erred when it summarily

       denied his petition on the due process allegation.


                                    Issue Two: Allocation of Time Served

[13]   Baker next asserts that the Board erroneously allocated 458 2 days of time he

       served following his sentencing on the Hancock County offenses in September

       of 2017 and his final revocation hearing in January of 2019 to the original Class

       C felony offenses rather than to the Hancock County offenses. But we agree

       with the State that “[t]he order in which the sentences are served doesn’t

       matter.” Appellee’s Br. at 18. As a matter of law, Baker’s sentences on the

       original convictions and the ensuing Hancock County convictions run

       consecutively. Ind. Code § 35-50-1-2(e) (2020). Also as a matter of law, any

       credit he earns during his incarceration “is applied against the aggregate

       sentence.” Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999). As such, Baker has

       not shown any reversible error in the Board’s allocation of his time served.


                         Issue Three: Timeliness of the Board’s Final Hearing

[14]   Finally, Baker contends that the January 9, 2019, revocation hearing was

       untimely. Indiana Code Section 11-13-3-10(a)(1) provides:


                A parolee who is confined due to an alleged violation of parole
                shall be afforded a parole revocation hearing within sixty (60)




       2
         We accept the State’s concession that, while Baker asserts there are 457 days at issue, there are actually
       458.

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020                          Page 7 of 9
               days after the parolee is made available to the department by a
               jail or state correctional facility, if:


               (A) there has been a final determination of any criminal charges against
               the parolee; or


               (B) there has been a final resolution of any other detainers filed
               by any other jurisdiction against the parolee.


       (Emphasis added.)


[15]   The Board held the January 9, 2019, final revocation hearing within sixty days

       of Baker’s sentencing on the Hamilton County convictions, which was in

       December of 2018, but not within sixty days of his sentencing on the Hancock

       County convictions, which was in September of 2017. Baker asserts that

       Indiana Code Section 11-13-3-10(a)(1) required the Board to hold his final

       revocation hearing within sixty days of a final determination of “any” criminal

       charges against him, not “all” such charges. Appellant’s Br. at 22. Thus, Baker

       asserts that the final revocation hearing had to be held within sixty days of his

       sentencing on the first-resolved charges, the Hancock County charges.


[16]   Although the State asserts that that statute never applied to Baker, we conclude

       that, if it ever did, it does not direct the Board to hold the final revocation

       hearing within sixty days of any particular charges, as Baker reads the statute.

       “Any” means just that—the final revocation hearing needed to be within sixty

       days of Baker’s sentencing on “any” of the other charges. And the Board did

       that when it held his final revocation hearing within sixty days of the final


       Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020        Page 8 of 9
       resolution of the Hamilton County charges. Accordingly, Baker again has not

       met his burden to show error on appeal.


                                                  Conclusion
[17]   In sum, we affirm the post-conviction court’s summary denial of Baker’s

       petition for post-conviction relief.


[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-478 | July 9, 2020   Page 9 of 9
