MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this                              FILED
Memorandum Decision shall not be                                    May 20 2016, 8:23 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
Olabisi Nard                                             Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Olabisi Nard,                                            May 20, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         46A04-1508-MI-1147
        v.
                                                         Appeal from the LaPorte Circuit
                                                         Court
Mark Sevier,
                                                         The Honorable Thomas
Appellee-Defendant.                                      Alevizos, Judge
                                                         Trial Court Cause No.
                                                         46C01-1507-MI-1325



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A04-1508-MI-1147 | May 20, 2016          Page 1 of 5
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Olabisi Nard (Nard), appeals the trial court’s denial of his

      petition for a writ of habeas corpus.


[2]   We affirm.


                                                    ISSUE

[3]   Nard raises a single issue on appeal, which we restate as: Whether the trial

      court improperly denied his habeas corpus petition.


                           FACTS AND PROCEDURAL HISTORY

[4]   On May 27, 2002, the State filed an Information, charging Nard with attempted

      murder. Nard was subsequently convicted and is currently serving a forty year

      sentence in Westville Correctional Facility, Indiana. 1 In 2015, Nard filed a

      verified petition for writ of habeas corpus arguing that confinement was in

      violation of his rights under the Fifth and Fourteenth Amendment of the United

      States Constitution because he was charged by information rather than being

      indicted by a grand jury. On July 16, 2015, the trial court denied Nard’s habeas




      1
        See Indiana Department of Correction Offender Database,
      http://www.in.gov/apps/indcorrection/ofs/ofs?lname=Nard&fname=Olabisi&search1.x=23&search1.y=1
      1 (last visited Apr. 5, 2015).

      Court of Appeals of Indiana | Memorandum Decision 46A04-1508-MI-1147 | May 20, 2016   Page 2 of 5
      corpus petition, holding that under Indiana Code section 35-34-1-1 the State

      may bring charges via indictment or information.


[5]   Nard now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[6]   Nard claims that the trial court erred in denying his petition for a writ of habeas

      corpus. Habeas corpus practice is a well-established but little-used remedy

      under Indiana law. Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d

      978, 980 (Ind. Ct. App. 2001). 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, 756 N.E.2d 980. One is entitled to

      habeas corpus only if one is entitled to immediate release from unlawful

      custody. Id.




      Court of Appeals of Indiana | Memorandum Decision 46A04-1508-MI-1147 | May 20, 2016   Page 3 of 5
[7]   On appeal, Nard argues that Indiana Code section 35-34-1-2(b) 2 violates the

      Fifth Amendment to the United States Constitution. Specifically, he argues

      that Indiana Code section 35-34-1-2(b) allows “prosecutors to discriminate

      against rich and poor citizens, wherein, the rich and political figures receive

      grand jury indictments [] yet, poor citizens receive no protections of the Fifth

      Amendments (sic).” (Appellant’s Br. p. 2).


[8]   We note that Indiana Code section 35-34-1-1 states: “[A]ll prosecutions of

      crimes shall be brought in the name of the state of Indiana. Any crime may be

      charged by indictment or information.” Indiana Code section 35-34-1-2 then

      provides, in detail, the contents, necessary requirements, and form of an

      indictment or information. Subsection (b) states that an indictment shall be

      signed by the foreman or five members of the grand jury, and the prosecuting

      attorney. In contrast, the same subsection provides that an information shall be

      signed by the prosecuting attorney or his deputy and sworn to or affirmed by

      him or any other person.




      2
        Throughout his appellate brief, Nard cites subsection (9)(b)(1)(2), but there is no subsection 9 in Indiana
      Code section 34-35-1-2. We assume that Nard is referring to subsection (b) under I.C. § 34-35-1-2, since that
      subsection was quoted in his appendix.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1508-MI-1147 | May 20, 2016                Page 4 of 5
[9]    Nard maintains that prosecution by indictment protects an individual’s Fifth

       Amendment right since prosecution is done by a “neutral body,” a grand jury;

       whereas prosecution by information is done by “prosecutors [] who are not

       clearly [] neutral.” (Appellant’s Br. p. 5).


[10]   In Beverly v. State, 543 N.E.2d 1111, 1116 (Ind. 1989), our supreme court held

       that the federal constitutional provision requiring grand juries is not applicable

       to the states and the states may initiate criminal prosecutions by information.

       Therefore, the procedure by which Nard was charged has been deemed

       constitutional. The lack of review of charges by a grand jury does not show

       purposeful discrimination for purposes of establishing an equal protection

       claim. See Townsend v. State, 533 N.E.2d 1215, 1221-22 (Ind. 1989).


[11]   In light of the above, the trial court correctly denied Nard’s habeas corpus

       petition since he was properly charged by information pursuant to Ind. Code §

       35-34-1-1. As such, Nard is not being held illegally.


                                               CONCLUSION


[12]   Based on the foregoing, we conclude that the trial court properly denied Nard’s

       habeas corpus petition.


[13]   Affirmed.


[14]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 46A04-1508-MI-1147 | May 20, 2016   Page 5 of 5
