MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 22 2018, 5:32 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Anthony W. Shepard Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. Shepard, March 22, 2018
Appellant-Petitioner, Court of Appeals Case No. 33A01-1611-PC-2716 v. Appeal from the Henry Circuit Court. The Honorable Kit C. Dean Crane, State of Indiana, Judge. Appellee-Respondent. Trial Court Cause No. 33C02-1608-PC-3
Friedlander, Senior Judge
[1] Anthony Shepard violated the terms of his parole, and his parole was revoked.
He filed a petition for post-conviction relief, which challenged the revocation of
his parole. The post-conviction court granted summary disposition in favor of
the State and denied Shepard’s petition. Shepard, pro se, appeals from the post-
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 1 of 7 conviction court’s denial of his petition. He raises a number of issues, which
we combine and restate as whether the post-conviction court erred in
summarily denying Shepard’s petition for post-conviction relief. We reverse
and remand.
[2] The facts of this case are as follows. In underlying cause number 02D04-0509-
FB-131 (“FB-131”), Shepard was convicted of criminal deviate conduct,
criminal confinement, criminal recklessness, domestic battery, and invasion of
privacy. See Shepard v. State, No. 02A03-0607-CR-316, slip op. at 1 (Ind. Ct.
App. December 12, 2007), trans. denied. He was sentenced to twenty years
imprisonment. On direct appeal, we affirmed his convictions. Id.
[3] Shepard was released to parole on March 18, 2015. On or about April 24,
2015, and while on parole, Shepard was charged under cause number 02D06-
1504-F6-387 (“F6-387”) with two counts of domestic battery and one count of
strangulation, as Level 6 felonies, and one count of Class A misdemeanor
domestic battery. A parole violation warrant was issued on April 27, 2015. On
September 21, 2015, Shepard pleaded guilty to Class A misdemeanor domestic
battery under cause number F6-387. On November 10, 2015, after a hearing,
the Parole Board revoked Shepard’s parole and “assessed the balance of [his]
sentence” under cause number FB-131. Appellant’s App. Vol I., p. 7.
[4] On August 19, 2016, Shepard filed a pro se petition for post-conviction relief,
challenging the revocation of his parole. Shepard alleged his parole officer
misled him to believe that his parole in cause number FB-131 would not be
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 2 of 7 revoked and he would not be returned to prison if he pleaded guilty to
misdemeanor domestic battery under cause number F6-387. He claimed that
he was denied due process because “the agreement between [my parole agent]
and myself (Anthony Shepard) was not upheld.” Id. at 14.
[5] On September 28, 2016, the State moved for summary disposition. The State
attached several certified records from the Indiana Department of Correction
(“DOC”) regarding Shepard’s parole release and revocation. On October 28,
2016, the post-conviction court granted summary disposition in favor of the
State and denied Shepard’s post-conviction relief petition. The post-conviction
court concluded that “the alleged interaction between [Shepard] and his parole
officer has no effect on the Parole Board’s decision;” a “condition to remaining
on parole is that the parolee not commit a new crime during the period of
parole;” Shepard pleaded guilty to the new offense of domestic battery; the
“Parole Board was authorized by statute to revoke [Shepard’s] parole;” and
“Shepard received all of the minimum due process requirements of a parole
revocation hearing.” Appellee’s App. Vol. II, pp. 30, 31. Shepard now appeals.
[6] The petitioner in a post-conviction proceeding bears the burden of proof, and an
unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903
N.E.2d 899 (Ind. 2009). A petitioner appealing from a negative judgment must
show that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite to that reached by the post-conviction court. Id. We will
disturb a post-conviction court’s decision as being contrary to law only where
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 3 of 7 the evidence is without conflict and leads to but one conclusion and the post-
conviction court has reached the opposite conclusion. Id.
[7] The post-conviction court granted summary disposition based on Indiana Post–
Conviction Rule 1(4)(g). The rule allows a post-conviction court to grant a
motion by either party “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.” Ind. Post–Conviction Rule 1(4)(g).
The necessity of an evidentiary hearing is avoided when the pleadings present
only issues of law. Clayton v. State, 673 N.E.2d 783 (Ind. Ct. App. 1996).
[8] We review the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a civil motion for summary judgment. Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Summary disposition, like summary judgment, is a matter for appellate de novo review when the determinative issue is a matter of law, not fact. Id. Summary disposition should be granted only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ind. Post–Conviction Rule 1(4)(g). “We must resolve all doubts about facts, and the inferences to be drawn from the facts, in the non-movant’s favor.” Allen v. State, 791 N.E.2d 748, 753 (Ind. Ct. App. 2003), trans. denied.
Komyatti v. State, 931 N.E.2d 411, 415-16 (Ind. Ct. App. 2010). The appellant
has the burden of persuading us that the post-conviction court erred. Allen, 791
N.E.2d 748.
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 4 of 7 [9] As a general rule, defendants facing potential parole revocation are entitled to a
number of procedural due process rights, which include: written notice of the
parole violation charges, disclosure of the evidence against the parolee, 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. Harris v. State, 836 N.E.2d 267, 280 (Ind. Ct. App.
2005) (citing Morrissey v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 22 2018, 5:32 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Anthony W. Shepard Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. Shepard, March 22, 2018
Appellant-Petitioner, Court of Appeals Case No. 33A01-1611-PC-2716 v. Appeal from the Henry Circuit Court. The Honorable Kit C. Dean Crane, State of Indiana, Judge. Appellee-Respondent. Trial Court Cause No. 33C02-1608-PC-3
Friedlander, Senior Judge
[1] Anthony Shepard violated the terms of his parole, and his parole was revoked.
He filed a petition for post-conviction relief, which challenged the revocation of
his parole. The post-conviction court granted summary disposition in favor of
the State and denied Shepard’s petition. Shepard, pro se, appeals from the post-
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 1 of 7 conviction court’s denial of his petition. He raises a number of issues, which
we combine and restate as whether the post-conviction court erred in
summarily denying Shepard’s petition for post-conviction relief. We reverse
and remand.
[2] The facts of this case are as follows. In underlying cause number 02D04-0509-
FB-131 (“FB-131”), Shepard was convicted of criminal deviate conduct,
criminal confinement, criminal recklessness, domestic battery, and invasion of
privacy. See Shepard v. State, No. 02A03-0607-CR-316, slip op. at 1 (Ind. Ct.
App. December 12, 2007), trans. denied. He was sentenced to twenty years
imprisonment. On direct appeal, we affirmed his convictions. Id.
[3] Shepard was released to parole on March 18, 2015. On or about April 24,
2015, and while on parole, Shepard was charged under cause number 02D06-
1504-F6-387 (“F6-387”) with two counts of domestic battery and one count of
strangulation, as Level 6 felonies, and one count of Class A misdemeanor
domestic battery. A parole violation warrant was issued on April 27, 2015. On
September 21, 2015, Shepard pleaded guilty to Class A misdemeanor domestic
battery under cause number F6-387. On November 10, 2015, after a hearing,
the Parole Board revoked Shepard’s parole and “assessed the balance of [his]
sentence” under cause number FB-131. Appellant’s App. Vol I., p. 7.
[4] On August 19, 2016, Shepard filed a pro se petition for post-conviction relief,
challenging the revocation of his parole. Shepard alleged his parole officer
misled him to believe that his parole in cause number FB-131 would not be
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 2 of 7 revoked and he would not be returned to prison if he pleaded guilty to
misdemeanor domestic battery under cause number F6-387. He claimed that
he was denied due process because “the agreement between [my parole agent]
and myself (Anthony Shepard) was not upheld.” Id. at 14.
[5] On September 28, 2016, the State moved for summary disposition. The State
attached several certified records from the Indiana Department of Correction
(“DOC”) regarding Shepard’s parole release and revocation. On October 28,
2016, the post-conviction court granted summary disposition in favor of the
State and denied Shepard’s post-conviction relief petition. The post-conviction
court concluded that “the alleged interaction between [Shepard] and his parole
officer has no effect on the Parole Board’s decision;” a “condition to remaining
on parole is that the parolee not commit a new crime during the period of
parole;” Shepard pleaded guilty to the new offense of domestic battery; the
“Parole Board was authorized by statute to revoke [Shepard’s] parole;” and
“Shepard received all of the minimum due process requirements of a parole
revocation hearing.” Appellee’s App. Vol. II, pp. 30, 31. Shepard now appeals.
[6] The petitioner in a post-conviction proceeding bears the burden of proof, and an
unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903
N.E.2d 899 (Ind. 2009). A petitioner appealing from a negative judgment must
show that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite to that reached by the post-conviction court. Id. We will
disturb a post-conviction court’s decision as being contrary to law only where
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 3 of 7 the evidence is without conflict and leads to but one conclusion and the post-
conviction court has reached the opposite conclusion. Id.
[7] The post-conviction court granted summary disposition based on Indiana Post–
Conviction Rule 1(4)(g). The rule allows a post-conviction court to grant a
motion by either party “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.” Ind. Post–Conviction Rule 1(4)(g).
The necessity of an evidentiary hearing is avoided when the pleadings present
only issues of law. Clayton v. State, 673 N.E.2d 783 (Ind. Ct. App. 1996).
[8] We review the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a civil motion for summary judgment. Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Summary disposition, like summary judgment, is a matter for appellate de novo review when the determinative issue is a matter of law, not fact. Id. Summary disposition should be granted only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ind. Post–Conviction Rule 1(4)(g). “We must resolve all doubts about facts, and the inferences to be drawn from the facts, in the non-movant’s favor.” Allen v. State, 791 N.E.2d 748, 753 (Ind. Ct. App. 2003), trans. denied.
Komyatti v. State, 931 N.E.2d 411, 415-16 (Ind. Ct. App. 2010). The appellant
has the burden of persuading us that the post-conviction court erred. Allen, 791
N.E.2d 748.
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 4 of 7 [9] As a general rule, defendants facing potential parole revocation are entitled to a
number of procedural due process rights, which include: written notice of the
parole violation charges, disclosure of the evidence against the parolee, 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. Harris v. State, 836 N.E.2d 267, 280 (Ind. Ct. App.
2005) (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L.
Ed. 2d 484 (1972)), trans. denied. Parolees also are entitled to a two-stage
revocation procedure: (1) a preliminary hearing to determine whether there is
probable cause to believe that the parolee has committed acts that would
constitute a violation of parole conditions; and (2) a final revocation hearing
prior to the final decision on revocation to consider whether the facts as
determined warrant revocation. Id.
[10] Although the arguments Shepard raises in his brief are not entirely clear, they
do not seem to be rooted in allegations of error regarding the parole revocation
process. Instead Shepard argues, essentially, that (1) his parole was unlawfully
revoked because his parole agent misled him to believe that his parole would
not be revoked and he would not be returned to prison, under cause number
FB-131, if he pleaded guilty to misdemeanor domestic battery under cause
number F6-387; and (2) he would not have entered into the plea agreement had
he known that his parole would be revoked and he would be returned to prison.
Given Shepard’s arguments, we find that the proper question before us is not
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 5 of 7 whether Shepard’s plea was voluntary or whether his parole was unlawfully
revoked; rather, the question to be addressed is whether the post-conviction
court erred in granting summary disposition in favor of the State because
genuine issues of material fact exist as to Shepard’s claim that he would not
have entered into the plea agreement if his parole agent had not misled him to
believe that, by pleading guilty he would avoid the revocation of his parole and
prison time.
[11] Shepard’s post-conviction relief petition alleged that he would not have pleaded
guilty under cause number F6-387 had his parole agent not misled him. He
attached to his petition copies of text messages that purported to show the
promises made to him by his parole agent. The post-conviction court’s
summary disposition order, however, did not contain specific conclusions
regarding whether genuine issues of material fact existed as to whether
Shepard’s guilty plea was improperly induced and thereby involuntary.
Instead, the order addressed the lawfulness of the parole revocation and
concluded that based on Shepard’s guilty plea, the parole revocation was
lawful, Shepard was afforded due process, his constitutional rights were not
violated, and the “alleged interaction between [Shepard] and his parole officer
ha[d] no effect on the Parole Board’s decision.” Appellee’s App. Vol II., p. 30.
[12] Shepard’s petition raised issues regarding the voluntariness of his plea. We
have found that the voluntariness of a plea involves issues of fact not
appropriate for summary disposition. See Hamner v. State, 739 N.E.2d 157 (Ind.
Ct. App. 2000). Our supreme court has held that an evidentiary hearing is
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 6 of 7 required when issues of fact are raised even if it is unlikely the petitioner will
produce evidence sufficient to establish his claim. Bailey v. State, 447 N.E.2d
1088 (Ind. 1983).
[13] The issues Shepard raised regarding the voluntariness of his guilty plea could
only have been resolved after an evidentiary hearing. He was entitled to a
hearing. See, e.g., Hunter v. State, 477 N.E.2d 317, 321 (Ind. Ct. App. 1985)
(petitioner entitled to full evidentiary hearing where post-conviction relief
petition presented factual issue of whether he pleaded guilty in response to
promises of drug and alcohol treatment in prison). The post-conviction court
erred in disposing of Shepard’s petition for post-conviction relief by way of
summary disposition.
[14] For the foregoing reasons, we reverse the post-conviction court’s grant of
summary disposition and remand for further proceedings.
[15] Judgment reversed and remanded.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A01-1611-PC-2716 | March 22. 2018 Page 7 of 7