                                                                               FILED
                                                                           Jun 27 2019, 7:19 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Andrew R. Falk                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Harry Harrison,                                            June 27, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-MI-2918
        v.                                                 Appeal from the Hendricks
                                                           Superior Court
Stanley Knight, et al.,                                    The Honorable Stephenie LeMay-
Appellees-Respondents.                                     Luken, Judge
                                                           Trial Court Cause No.
                                                           32D05-1808-MI-186



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019                             Page 1 of 10
                                            Case Summary
[1]   Harry J. Harrison (“Harrison”) is being held in Hendricks County for alleged

      parole violations, the disposition of which depends upon resolution of pending

      2016 – 2017 criminal charges in Madison County, but for unknown reasons, he

      has not been arrested on those charges so as to trigger his Sixth Amendment

      right to trial within a reasonable time, as implemented by Indiana Criminal

      Rule 4. Harrison presents the sole issue of whether he is entitled to habeas

      corpus relief for an illegal detention. Under the unique circumstances of this

      case, we conclude that Harrison did not validly waive his right to a preliminary

      parole violation hearing with a determination of probable cause. We remand

      with instructions to the Hendricks Superior Court to issue a rule to show cause

      to the Indiana Attorney General, to answer as to why Harrison is in custody in

      a chain of events stemming from charges upon which he has not been arrested.



                             Facts and Procedural History
[2]   In 2006, Harrison pled guilty to the charge of unlawful possession of a firearm

      by a serious violent felon and he was sentenced to twenty years imprisonment

      in the Indiana Department of Correction (“the DOC”). On October 15, 2015,

      Harrison was released from incarceration in the DOC to a community

      transition program.


[3]   On October 25, 2016 and January 27, 2017, Harrison was charged with new

      criminal offenses in Madison County, Indiana. Harrison was apprehended in


      Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019       Page 2 of 10
      South Carolina, waived his right to an extradition hearing, and was returned to

      Indiana. He was placed in custody on allegations of parole violations.


[4]   On October 27, 2017, Harrison signed an Indiana Department of Correction

      Division of Parole Services document titled “Waiver of Preliminary Hearing.”

      (App. Vol. II, pg. 27.) The document listed eight alleged parole violations: (1)

      unauthorized change of residence; (2) failure to report; (3) unauthorized out-of-

      state travel; (4) charge of unlawful possession of a firearm; (5) charge of

      pointing a firearm; (6) charge of criminal recklessness with a deadly weapon; (7)

      charge of interference with reporting a crime; and (8) charge of failure to

      register as a sex offender. Harrison did not initial the space provided to indicate

      that he was pleading guilty to any allegation. Rather, he placed his initials by

      the following provisions:


              I plead NOT GUILTY to the alleged parole violations (numbers
              1, 2, 3 listed above) and waive my right to a preliminary hearing.


              I waive my right to a Preliminary Hearing of the following
              alleged Rule #7: Criminal Conduct Violations (number 4, 5, 6, 7,
              8 listed above).




      Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019         Page 3 of 10
      Id. Harrison signed an acknowledgment that he would not be heard by the

      Indiana Parole Board until after the final disposition of his pending criminal

      matters.1


[5]   On March 5, 2018, Harrison filed in the Madison County Circuit Court a pro-se

      motion for speedy trials on criminal charges pending in Madison County. The

      trial court denied the motions, apparently on grounds that warrants were still

      outstanding, Harrison had not been arrested on new charges, and he was being

      held on parole violation allegations (without speedy trial rights). On May 21,

      2018, Harrison filed a pro se motion for discharge pursuant to Criminal Rule

      4(B). On June 7, 2018, the trial court denied Harrison’s motion, reasoning:


              The Defendant is not incarcerated under the case in which he
              believes he is entitled to a speedy trial. The Defendant is
              currently incarcerated in the Department of Corrections on an
              unrelated case. The Defendant has yet to even be arrested on the
              pending case and, accordingly, is not entitled to the benefits of
              the 70 day speedy trial rule under Criminal Rule 4(B).


      Id. at pg. 10.


[6]   On August 2, 2018, Harrison filed in the Hendricks Superior Court a petition

      for a writ of habeas corpus. On August 24, 2018, he filed an amended petition,

      naming as defendants the Warden of the Plainfield Correctional Facility and




      1
       The State advised the trial court that Harrison has “two pending cases” in Madison County, and Harrison
      appears to concede as much. (App. Vol. II, pg. 22.)

      Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019                             Page 4 of 10
      the Indiana Parole Board. He claimed that he was in unlawful, indefinite

      detention because he had not been arrested on new charges yet had received no

      parole hearing. The Indiana Attorney General filed a response, arguing that

      Harrison was lawfully incarcerated because he was not statutorily entitled to a

      final parole violation hearing until after disposition of pending criminal charges,

      and he had signed a Waiver of Preliminary Hearing. On September 5, 2018,

      the trial court denied Harrison’s habeas petition. Following a lengthy delay in

      which Harrison attempted unsuccessfully to perfect a pro-se appeal and was

      appointed successive appellate counsel, this Court granted Harrison permission

      to bring this belated appeal.



                                  Discussion and Decision
[7]   Indiana’s habeas corpus statute, 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.


      A petitioner is entitled to habeas corpus only if he is entitled to immediate

      release from unlawful custody. Hawkins v. Jenkins, 268 Ind. 137, 139, 374

      N.E.2d 496, 498 (1978). We review a trial court’s habeas decision for an abuse

      of discretion. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008).




      Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019           Page 5 of 10
[8]    Indiana Code Section 11-13-3-9 requires that, upon the arrest and confinement

       of a parolee for an alleged parole violation, the parolee is entitled to a

       preliminary hearing to determine whether there is probable cause to believe a

       violation of a condition has occurred. The parolee is entitled to appear and

       speak on his own behalf, call witnesses and present evidence, confront and

       cross-examine witnesses, and obtain a written statement of the findings of fact

       and the evidence relied upon. Id. Subsection (f) provides: “A parolee may

       waive his right to a preliminary hearing.”


[9]    A parolee who validly waives his right to a preliminary hearing awaits the

       parole revocation hearing. Indiana Code Section 11-13-3-10(a)(1) provides that

       a parolee who is confined due to an alleged violation of parole is to be afforded

       a parole revocation hearing within sixty days after he is made available by a jail

       or 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.


[10]   Harrison has unsuccessfully pursued the prompt resolution of pending criminal

       charges against him, which would start the clock for the parole revocation

       hearing. He has repeatedly invoked Indiana Criminal Rule 4(B). His efforts,

       although diligent, were in vain because “a defendant must be held on the charge

       for which he requests a speedy trial for Criminal Rule 4(B) to apply.” Cundiff v.


       Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019            Page 6 of 10
       State, 967 N.E.2d 1026, 1029 (Ind. 2012). Had he been arrested on the new

       charges, he would enjoy Sixth Amendment protection.


[11]   The Sixth Amendment provides in part: “In all criminal prosecutions, the

       accused shall enjoy the right to a speedy and public trial[.]” A defendant has no

       duty to bring himself to trial; rather, the primary burden is on the courts and

       prosecutors. Arion v. State, 56 N.E.3d 71, 74 (Ind. Ct. App. 2016) (citing Barker

       v. Wingo, 407 U.S. 514, 527 (1972)). “Indiana Criminal Rule 4 seeks to ensure

       that the State provides defendants with a speedy trial as mandated by the

       Constitution.” Id. at 74. Rule 4(B) provides that a defendant held in jail on an

       indictment or affidavit who moves for a speedy trial shall be discharged if not

       brought to trial within seventy days from the date of the motion. Rule 4(C),

       without the requirement of a motion, provides that


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later … .


[12]   In Arion, the appellant was serving a prison sentence for an unrelated conviction

       when he was served with a warrant informing him of new charges; he had in

       vain requested a speedy trial on multiple occasions. 56 N.E.3d at 72. The

       Arion Court recognized that the appellant retained his speedy trial rights, despite

       the unrelated incarceration:


               Given the nature of Arion’s case, it is important to note that the
               fact that he was incarcerated for a separate conviction at the time
       Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019            Page 7 of 10
               he was charged with the present offenses is not important. The
               United States Supreme Court has recognized that defendants
               incarcerated for unrelated reasons still retain an interest in being
               tried promptly on new charges. Smith [v. Hooey], 393 U.S. at 377-
               78, 89 S.Ct. 575; Strunk v. United States, 412 U.S. 434, 439-40, 93
               S.Ct. 2260, 37 L.Ed.2d 56 (1973). “The fact is that delay in
               bringing such a person to trial on a pending charge may
               ultimately result in as much oppression as is suffered by one who
               is jailed without bail upon an untried charge.” Smith, 393 U.S. at
               378, 89 S.Ct. 575.


       56 N.E.3d at 74.


[13]   Had the State served an arrest warrant upon Harrison, Criminal Rule 4(C)

       would have dictated that Harrison be tried on a new charge within one year

       from the date of his arrest. But no warrant was served on Harrison. He is

       incarcerated with no end in sight, but for the expiration of his original unrelated

       sentence. At the time he executed the waiver document, Harrison was taken

       into custody for alleged parole violations, including newly alleged criminality.

       Yet, he has no statutory right to a parole revocation hearing until there is a

       resolution of these new criminal charges. The prosecution of these new charges

       has been delayed, however, in that Harrison has not been served with arrest

       warrants and he lacks speedy trial rights to force an expeditious determination

       because he has not been arrested. The circumstances have prompted appellate

       counsel to observe, “Mr. Harrison is up a creek without a paddle.” Appellant’s

       Brief at 8.




       Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019          Page 8 of 10
[14]   The State takes the position that Harrison may lawfully be incarcerated until

       the expiration of his twenty-year sentence, on May 31, 2022, without any

       determination of probable cause supporting the parole violation allegation.

       This is so, according to the State, because Harrison signed a waiver absolving

       the Indiana Parole Board of any duty in that regard. We must disagree. If we

       accepted the State’s position that Harrison, a parolee, can lawfully be

       incarcerated until his maximum release date without presentation of evidence

       or admission of guilt, the State’s burden to establish an alleged parole violation

       would be completely obviated.


[15]   Moreover, when Harrison ostensibly waived his right to a determination of

       probable cause of a parole violation in a preliminary hearing, he could not

       reasonably have contemplated the breakdown in the prosecutorial process. The

       plain language of Indiana Code Section 11-13-3-9 contemplates the “arrest and

       confinement” of a parolee as a predicate to a preliminary hearing. Here, the

       execution of a waiver document absent an arrest on any new charge started a

       chain of events that has denied Harrison the opportunity to have probable cause

       for a parole violation established and denied him the disposition of criminal

       charges in a reasonably timely manner. As Harrison insists, our parole

       statutory scheme is not to be implemented in this way. Cf. Indiana

       Constitution, Art. 1, Section 12:


               All courts shall be open; and every person, for injury done to him
               in his person, property, or reputation, shall have remedy by due
               course of law.


       Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019         Page 9 of 10
                Justice shall be administered freely, and without purchase;
                completely, and without denial; speedily, and without delay.


       (emphasis added.)


[16]   At first blush, it would appear that Harrison is entitled to immediate release,

       subject to conditions of parole. However, we cannot on the record before us

       determine with certainty that an arrest warrant has not been served upon

       Harrison after the trial court issued its habeas ruling. We find further fact-

       finding proceedings necessary, and therefore remand the matter to the trial

       court.



                                                 Conclusion
[17]   It is not evident from the record that Harrison is entitled to immediate release

       from custody. However, he may not simply be held until his original sentence

       expires, with no determination of probable cause for a parole violation. We

       remand and instruct the trial court to conduct a hearing on a rule to show cause

       directed to the Indiana Attorney General to show why Harrison is not entitled

       to immediate release subject to conditions of parole.


[18]   Remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MI-2918 | June 27, 2019        Page 10 of 10
