Damon Nelson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 7, 2017
• Docket: 49A02-1609-PC-2171
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing FILED the defense of res judicata, collateral Apr 07 2017, 8:32 am

estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Damon Nelson Curtis T. Hill, Jr. Pendleton Correctional Facility Attorney General of Indiana Pendleton, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Damon Nelson, April 7, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02-1609-PC-2171 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Respondent Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1512-PC-42702

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-PC-2171 | April 7, 2017 Page 1 of 4 [1] Damon Nelson, pro se, appeals the postconviction court’s denial of his

successive petition for postconviction relief. We affirm.

[2] The relevant facts indicate that Nelson was mandatorily paroled from the

Indiana Department of Correction on February 25, 2013. When he was

released to parole, he executed a conditional parole release agreement, which

included a provision that he “will not engage in conduct prohibited by federal

or state law or local ordinance.” Appellant’s App. Vol 2. at 101. The agreement

was signed by Nelson but not by a member of the parole board. Nelson was

arrested in April 2013 on new criminal charges and was served a warrant

alleging a parole violation. After the criminal charges were dismissed, the

parole warrant was lifted and voided, and Nelson was released. On January 3,

2014, Nelson was recharged with two counts of possession of cocaine or a

schedule I, II drug, and operating a vehicle while intoxicated under cause

number 49G14-1401-FD-264. A warrant for Nelson was issued by the parole

board on January 24, 2014, alleging a parole violation based upon his

commission of a new criminal offense. The warrant was served on Nelson on

January 28, 2014. Nelson did not receive a preliminary parole violation

hearing,1 and on November 23, 2015, he pled guilty to possession of cocaine or

a schedule I, II drug. On January 8, 2016, Nelson was given notice that there

would be a parole violation hearing based on his alleged violation of parole.

That hearing was held on January 12, 2016. Nelson attended the hearing by

1 The parties dispute whether Nelson was offered and verbally waived his preliminary hearing.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-PC-2171 | April 7, 2017 Page 2 of 4 videoconference, and his parole was revoked based upon his conviction in

cause number 49G14-1401-FD-264.

[3] This Court granted Nelson permission to file a successive petition for

postconviction relief, and on March 16, 2016, Nelson filed his pro se amended

petition for successive postconviction relief challenging the revocation of his

parole. The trial court entered its findings of fact and conclusions thereon

denying Nelson’s petition on August 17, 2016, and this appeal ensued.

[4] Initially, we observe that although Nelson is proceeding pro se, he is held to the

same standard as trained counsel and is required to follow procedural rules.

Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. The

petitioner in a postconviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

from the denial of postconviction relief, the petitioner stands in the position of

one appealing from a negative judgment. Id. On review, we will not reverse

the judgment of the postconviction court unless the evidence as a whole

unerringly and unmistakably leads to a conclusion opposite that reached by the

postconviction court. Id.

[5] Nelson cannot meet his appellate burden because has not developed a cogent

argument with appropriate citations to relevant authority. While he summarily

asserts that his parole release agreement was invalid because it was not signed

by a member of the parole board, and that his constitutional rights were

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-PC-2171 | April 7, 2017 Page 3 of 4 violated for various reasons including that he was not afforded a preliminary

parole violation hearing, his argument is merely a recitation of facts and some

procedural history with a few references to the federal and state constitutions.

He fails to cite a single case or other authority to support his claims, nor does he

direct us to any portion of the record to demonstrate or to adequately explain

how his constitutional rights were violated. A party waives any issue raised on

appeal where the party has failed to develop a cogent argument or provide

adequate citation to authority and portions of the record. See Ind. Appellate

Rule 46(A)(8)(a); Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005),

trans. denied. In sum, he has waived our review, as we will not entertain his

bald assertions. Accordingly, we affirm the judgment of the postconviction

court in all respects.

[6] Affirmed.

Baker, J., and Barnes, J., concur.

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