Bennie Truth v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 18, 2016
• Docket: 33A01-1604-CR-835
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 18 2016, 8:08 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Bennie Truth Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bennie Truth, October 18, 2016 Appellant-Defendant, Court of Appeals Case No. 33A01-1604-CR-835 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Barbara A. Appellee-Plaintiff. Harcourt, Senior Judge Trial Court Cause No. 33C02-1512-PC-11

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 1 of 13 Case Summary and Issues [1] Bennie Truth filed a petition for post-conviction relief challenging the

revocation of his parole. The post-conviction court granted the State’s motion

for summary disposition and denied Truth’s petition. Truth, pro se, now

appeals, raising two issues for our review, which we restate as (1) whether the

post-conviction court abused its discretion in denying Truth’s motion for default

judgment, and (2) whether the post-conviction court erred in granting the

State’s motion for summary disposition. Concluding the post-conviction court

did not abuse its discretion in denying his motion nor did it err in granting the

State’s motion for summary disposition and denying Truth’s petition for post-

conviction relief, we affirm.

Facts and Procedural History [2] Following a conviction for felony rape in the 1990s, Truth served time in the

Indiana Department of Correction. Truth was released to parole in 2013.

Among the conditions of his release were that he report to Sex Offender

Management and Monitoring treatment (Rule 10-1), report to his parole office

(Rule 10-10), charge his GPS monitoring unit (Rule 10-27), receive permission

from his parole office prior to changing his residence (Rule 10-2), abstain from

visiting a bar (Rule 10-13), and abstain from engaging in criminal conduct (Rule

7).

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 2 of 13 [3] On October 15, 2013, a parole violation warrant was issued for Truth based on

allegations he violated Rules 10-1, 10-2, 10-10, and 10-27 of his parole. On

October 28, 2013, the State charged Truth with three counts of failing to register

as a sex offender, all Class D felonies, under Cause Number 49F09-1310-FD-

070066 (“Cause 070066”). On November 1, 2013, Truth was found inside a bar

and was arrested on the parole violation warrant.

[4] At a parole hearing three days later, the State further alleged Truth violated

Rule 10-13 by visiting a bar. Truth pleaded not guilty to the allegations he

violated parole and the trial court scheduled a preliminary hearing for

November 7, 2013. On November 5, 2013, an arrest warrant was issued for

Truth under Cause 070066. He was then arrested and remained in the custody

of the Marion County Jail.1 Following the preliminary hearing on November 7,

2013, the hearing officer found probable cause to believe Truth violated the

terms of his parole as charged. Nearly two weeks later, parole services issued

an addendum further alleging Truth engaged in criminal conduct in violation of

Rule 7 by failing to register as a sex offender. Truth was not afforded a

preliminary hearing with regard to this allegation.

[5] On April 22, 2014, the trial court entered judgment of conviction against Truth

for failing to register as a sex offender and sentenced him to 1,095 days of work

release. On June 4, 2014, Truth received notice his parole revocation hearing

1 The record does not indicate whether Truth was still in custody on the parole violation warrant or whether he had been released and then arrested under CN-070066.

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 3 of 13 scheduled for June 12, 2014, would address the allegations he violated Rules

10-1, 10-2, 10-10, 10-13, 10-27, and 7. Following the hearing, the parole board

determined Truth violated Rules 10-2, 10-10, 10-27, and 7, revoked his parole,

and ordered him to return to the Department of Correction. Truth began

serving his sentence at the New Castle Correctional Facility in Henry County,

Indiana.

[6] On December 22, 2015, Truth filed a petition for post-conviction relief. Truth

then moved for summary judgment on January 19, 2016. On January 26, 2016,

the State filed its answer to Truth’s petition and a motion for extension of time

to file a summary judgment response. On February 2, 2016, the post-conviction

court granted the State’s motion for extension of time and acknowledged the

State had not originally been served with Truth’s petition. As a result, the post-

conviction court ordered the trial court clerk to forward a copy of the petition to

the Office of the Attorney General and ordered the Attorney General to file a

response within fifteen days.

[7] On February 17, 2016, the State filed a motion for summary disposition and

Truth moved for default judgment the following day. On March 2, 2016, the

post-conviction court entered its findings of fact and conclusions of law granting

the State’s motion for summary disposition and denying Truth’s petition for

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 4 of 13 post-conviction relief. The post-conviction court did not rule on Truth’s motion

for default judgment.2 This appeal ensued.

Discussion and Decision I. Default Judgment [8] Truth claims the post-conviction court abused its discretion in denying his

motion for default judgment.3 The decision to deny a default judgment is

within the discretion of the post-conviction court and is reviewable only for

abuse of that discretion. Kindred v. State, 514 N.E.2d 314, 317 (Ind. Ct. App.

1987), trans. denied. An abuse of discretion occurs when the decision is clearly

against the logic and effect of the facts and circumstances before the court, or

the reasonable, probable, and actual deductions to be drawn therefrom.

Southern v. State, 878 N.E.2d 315, 323 (Ind. Ct. App. 2007), trans. denied.

[9] Indiana Post-Conviction Rule 1(2) provides, in relevant part,

2 Truth then filed a motion to correct error, arguing the State did not file a timely answer to his petition. In denying the motion, the post-conviction court noted, Petitioner incorrectly served the Henry County Prosecuting Attorney, but not the prosecuting attorney from the sentencing court nor the Attorney General. On February 5, 2016, the Court ordered the Clerk to forward a copy of the Petition to the Attorney General and ordered the Attorney General to file a response within fifteen days. Respondent’s Motion for Summary Disposition was filed [sic] stamped on February 17, 2016. Respondent responded timely to Petitioner’s Petition for Post-Conviction. Appellant’s Appendix at 73. 3 At the outset, we note the post-conviction court never ruled on the motion. Because the post-conviction court summarily denied Truth’s petition for post-conviction relief, we proceed under the assumption the court impliedly denied Truth’s motion for default judgment.

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 5 of 13 A person who claims relief under this Rule or who otherwise challenges the validity of a conviction or sentence must file a verified petition with the clerk of the court in which the conviction took place, except that a person who claims that the person’s parole has been unlawfully revoked must file a verified petition with the clerk of the court in the county in which the person is incarcerated. . . .

The Clerk shall file the petition upon its receipt and deliver a copy to the prosecuting attorney of that judicial circuit.

Post-Conviction Rule 1(4)(a) provides, in relevant part,

Within thirty (30) days after the filing of the petition, or within any further reasonable time the court may fix, the state . . . shall respond by answer stating the reasons, if any, why the relief prayed for should not be granted. The court may make appropriate orders for amendment of the petition or answer, for filing further pleadings or motions, or for extending the time of the filing of any pleading.

[10] Here, Truth filed his petition for post-conviction relief on December 22, 2015.

The petition is not included in the record and the Chronological Case Summary

(“CCS”) does not indicate whether a copy of the petition was forwarded to any

representative of the State. On January 19, 2016, Truth moved for summary

judgment. A week later, and just over thirty days after Truth filed his petition

for post-conviction relief, the prosecuting attorney for Henry County entered an

appearance on behalf of the State, filed an answer to Truth’s petition, and

further filed a motion for enlargement of time to respond to Truth’s motion for

summary judgment.

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 6 of 13 [11] On February 2, 2016, the post-conviction court granted the State’s request for

an extension of time and further noted,

Pro se petitioner filed Petition for Post-Conviction on December 22, 2015. It appears he served the local county prosecutor and not the prosecuting attorney from the sentencing court, nor the Attorney General. It further appears that Petitioner is alleging that his parole was unlawfully revoked. Thus, it appears that this Court has jurisdiction over his Petition. Court orders the Clerk to forward a copy of the petition herein to the Office of the Indiana Attorney General . . . and directs that Attorney General shall file a response to the pleading within fifteen days.

Id. at 2 (CCS). The following day, the trial court clerk sent a copy of Truth’s

petition to the Office of the Attorney General. On February 17, 2016, the State

filed a motion for summary disposition. On February 18, 2016, Truth filed a

motion for default judgment, claiming the State did not file an answer to his

petition until January 26, 2016, and was therefore not within the thirty-day

timeframe set out in Post-Conviction Rule 1(4)(a). The post-conviction court

did not rule on the motion and denied Truth’s petition for post-conviction relief

by summary disposition on March 2, 2016.

[12] On appeal, the State concedes its answer filed on January 26, 2016, was one-

day late and therefore untimely. Brief of Appellee at 19. However, we note the

petition for post-conviction relief is not included in the record. In addition, the

State’s answer was only one-day late. As noted above, a post-conviction court

is afforded discretion in determining whether to deny a motion for default

judgment. Here, the trial court exercised its discretion and decided the case on

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 7 of 13 the merits. On this record, we conclude the trial court did not abuse its

discretion in denying Truth’s motion for default judgment.

II. Parole Revocation A. Standard of Review [13] 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.” P-C.R.

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.

B. Preliminary Hearing [14] Truth first argues the post-conviction court erred in granting the summary

disposition and denying his petition because the pleadings show he did not

receive a preliminary hearing regarding the allegation he engaged in criminal

conduct in violation of Rule 7 of his parole. We disagree.

[15] Upon the arrest and confinement of a parolee for an alleged violation of a condition to remaining on parole, an employee of the department (other than the employee who reported or investigated the alleged violation or who recommended Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 8 of 13 revocation) shall hold a preliminary hearing to determine whether there is probable cause to believe a violation of a condition has occurred.

Ind. Code § 11-13-3-9(a). The purpose of a preliminary hearing is “to

determine whether there is probable cause or reasonable ground to believe that

the arrested parolee has committed acts that would constitute a violation of

parole conditions.” Morrissey v. Brewer, 408 U.S. 471, 485 (1972). If the alleged

violation of parole is the parolee’s conviction of a crime while on parole,

however, the preliminary hearing need not be held. Ind. Code § 11-13-3-9(d);

see also Jamerson v. State, 182 Ind. App. 99, 102, 394 N.E.2d 222, 224 (1979)

(referencing Morrissey and reasoning the criminal prosecution itself is sufficient

to determine whether there is probable cause to believe an act violates a

condition of parole and therefore it is unnecessary to have a preliminary

hearing).

[16] Here, it was not originally alleged Truth violated Rule 7; rather, it was alleged

he violated Rules 10-1, 10-2, 10-10, 10-13, and 10-27. Pursuant to Indiana

Code section 11-13-3-9, Truth was entitled to, and received, a preliminary

hearing with regard to those allegations. Following the hearing, the hearing

officer found probable cause existed to believe Truth violated the terms of his

parole. After the State charged Truth with failing to register as a sex offender,

however, parole services issued an addendum alleging Truth violated Rule 7 by

engaging in criminal conduct. In April 2014, Truth was convicted of failing to

register as a sex offender and such a conviction establishes sufficient probable

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 9 of 13 cause to believe Truth violated Rule 7. See Jamerson, 182 Ind. App. at 102, 394

N.E.2d at 224. Therefore, Truth was not entitled to a preliminary hearing on

this allegation.

[17] We further note, even assuming error, Truth received notice his revocation

hearing would address the allegations he violated the terms of his parole,

including the allegation he violated Rule 7. The parole board concluded Truth

violated Rules 10-2, 10-10, 10-27, and 7. Truth did not argue in the post-

conviction court the evidence is insufficient to establish he violated any of these

rules, and even if we omit the finding he violated Rule 7, the fact he violated

three other rules supports the revocation of his parole. See Komyatti v. State, 931

N.E.2d 411, 419-21 (Ind. Ct. App. 2010) (affirming the revocation of parole in

part because the evidence was sufficient to establish the defendant violated one

condition of his parole). Therefore, assuming error, Truth suffered no

prejudice. We conclude the post-conviction court did not err in concluding

there was no genuine issue of material fact as to whether Truth was entitled to a

preliminary hearing with regard to the allegation he engaged in criminal

conduct. Accordingly, the post-conviction court did not err in denying Truth’s

petition on this basis by summary disposition.

C. Parole Revocation Hearing [18] Truth also contends the post-conviction court erred in granting the summary

disposition because his parole revocation hearing was not held within sixty days

of his November 2013 arrest on the parole violation warrant in violation of

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 10 of 13 Indiana Code section 11-13-3-10(a)(1). Indiana Code section 11-13-3-10

provides,

(a) Parole revocation hearings shall be conducted as follows: (1) A parolee who is confined due to an alleged violation of parole shall be afforded a parole revocation hearing within sixty (60) 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.

***

(e) Unless good cause for the delay is established in the record of the proceeding, the parole revocation charge shall be dismissed if the revocation hearing is not held within the time established by subsection (a).

[19] Here, a parole violation warrant was issued on October 15, 2013, and Truth

was arrested on the warrant on November 1, 2013. The record does not

indicate how long Truth was confined on the parole violation warrant. The

record does indicate, however, that four days later—on November 5, 2013—an

arrest warrant for Truth was issued under Cause 070066 and he was detained in

the Marion County Jail under Cause 070066 until April 22, 2014. To be clear,

Truth remained in custody because he was charged with failure to register as a

sex offender, not because it was alleged he violated parole. Thus, we are not

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 11 of 13 persuaded Truth was “confined due to an alleged violation of parole” pursuant

to Indiana Code section 11-13-3-10(a)(1).4

[20] However, even assuming he was confined due to an alleged violation of parole,

the final determination in Cause 070066 did not occur until April 22, 2014.5 On

the same day, Truth was ordered to return to the Department of Correction.

Therefore, parole services had sixty days from that date to afford Truth with a

parole revocation hearing. On June 12, 2014, just over fifty days later, a parole

revocation hearing was held. We conclude the parole revocation hearing was

timely and therefore the post-conviction court did not err in denying Truth’s

petition by summary disposition on this basis.

Conclusion [21] The post-conviction court did not abuse its discretion in denying Truth’s

motion for default judgment. In addition, the court did not err in concluding

Truth was not entitled to a preliminary hearing in regards to the allegation he

violated Rule 7 nor did it err in concluding his parole revocation hearing was

timely. Accordingly, the post-conviction court properly denied Truth’s petition

4 Indiana Code section 11-13-3-10(a)(2) governs the timing for parole revocation hearings for parolees who are not confined due to an alleged parole violation. Truth does not allege his parole revocation hearing was untimely pursuant to this section of the statute and we therefore do not address it. 5 Truth does not cite to any evidence in the record, and we find none, indicating a final resolution of any other detainers filed by any other jurisdiction against him occurred prior to the trial court entering judgment of conviction and remanding him to the Department of Correction. See Ind. Code § 11-13-3-10(a)(1)(B).

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 12 of 13 by summary disposition and we affirm the judgment of the post-conviction

court.

[22] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 33A01-1604-CR-835 | October 18, 2016 Page 13 of 13