FILED Jan 31 2024, 9:17 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Spencer Turner Theodore E. Rokita New Castle, Indiana Attorney General of Indiana
Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA Spencer Turner, January 31, 2024 Appellant-Petitioner, Court of Appeals Case No. 23A-MI-1053 v. Appeal from the Henry Circuit Court Mark Sevier, The Honorable Kit C. Dean Crane, Appellee-Respondent. Judge Trial Court Cause No. 33C02-2211-MI-137
Opinion by Judge Mathias Judges Riley and Crone concur.
Mathias, Judge.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 1 of 7 [1] Spencer Turner appeals the post-conviction court’s grant of the State’s motion
for summary disposition of Turner’s petition for post-conviction relief. 1 Turner
raises three issues for our review, which we consolidate and restate as whether
the post-conviction court erred when it granted the State’s motion and denied
Turner’s petition for post-conviction relief. We agree with Turner that he was
incarcerated only on alleged parole violations and not also on new criminal
allegations during the timeframe in question. Accordingly, we reverse the post-
conviction court’s summary disposition and remand for further proceedings
consistent with this opinion.
Facts and Procedural History [2] In March 2020, Turner, an inmate at the Indiana Department of Correction’s
New Castle Correctional Facility, was released to a two-year-term of parole
after having executed a portion of his underlying sentence. One year later, the
State alleged new criminal allegations against Turner in Marion County,
including an allegation of Level 1 felony child molesting. The State filed its
information on those new criminal allegations in April 2021, and they remain
pending.
1 Turner styled his filing as a petition for a writ of habeas corpus, and, in one sentence in his brief on appeal, he suggests that the court erred when it converted his petition into a petition for post-conviction relief. One sentence is not an argument supported by cogent reasoning, and we therefore do not consider Turner’s purported challenge to the court’s assessment of his petition in this respect. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, we refer to the judgment on appeal as a judgment on a petition for post-conviction relief.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 2 of 7 [3] In light of the new criminal allegations, Turner’s parole agent issued a parole
violation warrant for Turner on March 19, 2021. Turner turned himself in on
that warrant that same day, and he waived his right to a preliminary hearing
before the Parole Board. Thereafter, no action was taken on his alleged parole
violations, and Turner remained incarcerated without a hearing on those
alleged violations. On December 9, 2022, the State served Turner with the
warrant on the new criminal charges.
[4] In late 2022, Turner filed his petition for post-conviction relief. In his petition,
he alleged that he had been held in custody only on the alleged parole violations
between March 19, 2021, and December 9, 2022, and that being held for that
length of time without a hearing on the alleged parole violations was contrary
to his statutory and constitutional rights. In response, the State filed a motion
for the summary disposition of Turner’s petition on the ground that he had been
held on both the alleged parole violations and the new criminal allegations
during all relevant times, and, thus, the Parole Board had no statutory or
constitutional obligation to act on the alleged parole violations while the new
criminal allegations remained pending. The post-conviction court agreed with
the State, granted the State’s motion for summary disposition, and denied
Turner’s petition for post-conviction relief.
[5] This appeal ensued.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 3 of 7 Standard of Review [6] Turner appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is well-established:
Post-conviction proceedings are civil proceedings in which a person may present limited challenges to a criminal conviction or a sentence. See Ind. Post-Conviction Rule 1; Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. Generally, “[t]he scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Gibson, 133 N.E.3d at 681. In a post-conviction action, the petitioner “has the burden of establishing his grounds for relief by a preponderance of the evidence.” P-C.R. 1(5). If there are disputed factual issues, the trial court must hold an evidentiary hearing. P-C.R. 1(4)(g), 1(5). However, pursuant to Indiana Post-Conviction Rule 1(4)(g), the court “may grant a motion by either party for summary disposition of the petition when it appears from the [evidence] submitted . . . that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” On appeal, we review “the grant of a motion for summary disposition in post-conviction proceedings . . . the same way as a motion for summary judgment.” Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Indeed, “summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact.” Id.
Aguilar v. State, 162 N.E.3d 537, 540 (Ind. Ct. App. 2020) (footnote omitted),
trans. denied.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 4 of 7 The post-conviction court erred when it granted the State’s motion for summary disposition of Turner’s petition. [7] On appeal, Turner asserts that, between March 19, 2021, and December 9,
2022, he was incarcerated solely on the alleged parole violations. He further
asserts that the length of that incarceration without a hearing on the alleged
parole violations was contrary to his state and federal rights. 2
[8] Essential to Turner’s argument is his contention that he was not formally held
on the new criminal charges until he had been served with the warrant for those
charges on December 9, 2022. On this point, Turner is correct. On March 19,
2021, Turner’s parole agent issued a parole violation warrant against Turner,
and Turner turned himself in that same day. From that day to December 9,
2022, the day on which the State served Turner with the arrest warrant for the
new criminal charges in Marion County, Turner was incarcerated only on the
alleged parole violations.
[9] Nonetheless, the State suggests that Turner was formally incarcerated on the
new criminal charges starting from the date in which the Marion Superior
Court found there to be probable cause for the filing of the new charges, i.e.,
April 7, 2021. In support of that position, the State cites the opinion of another
2 The crux of Turner’s argument on appeal alleges due process violations, and his argument on that point is well taken. However, throughout his brief on appeal, Turner also references his right to equal protection, his right to bail, his right to be free from cruel and unusual punishment, and his right to be free from double jeopardy. None of those references are arguments supported by cogent reasoning, and we therefore do not consider them. See App. R. 46(A)(8)(a).
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FILED Jan 31 2024, 9:17 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Spencer Turner Theodore E. Rokita New Castle, Indiana Attorney General of Indiana
Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA Spencer Turner, January 31, 2024 Appellant-Petitioner, Court of Appeals Case No. 23A-MI-1053 v. Appeal from the Henry Circuit Court Mark Sevier, The Honorable Kit C. Dean Crane, Appellee-Respondent. Judge Trial Court Cause No. 33C02-2211-MI-137
Opinion by Judge Mathias Judges Riley and Crone concur.
Mathias, Judge.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 1 of 7 [1] Spencer Turner appeals the post-conviction court’s grant of the State’s motion
for summary disposition of Turner’s petition for post-conviction relief. 1 Turner
raises three issues for our review, which we consolidate and restate as whether
the post-conviction court erred when it granted the State’s motion and denied
Turner’s petition for post-conviction relief. We agree with Turner that he was
incarcerated only on alleged parole violations and not also on new criminal
allegations during the timeframe in question. Accordingly, we reverse the post-
conviction court’s summary disposition and remand for further proceedings
consistent with this opinion.
Facts and Procedural History [2] In March 2020, Turner, an inmate at the Indiana Department of Correction’s
New Castle Correctional Facility, was released to a two-year-term of parole
after having executed a portion of his underlying sentence. One year later, the
State alleged new criminal allegations against Turner in Marion County,
including an allegation of Level 1 felony child molesting. The State filed its
information on those new criminal allegations in April 2021, and they remain
pending.
1 Turner styled his filing as a petition for a writ of habeas corpus, and, in one sentence in his brief on appeal, he suggests that the court erred when it converted his petition into a petition for post-conviction relief. One sentence is not an argument supported by cogent reasoning, and we therefore do not consider Turner’s purported challenge to the court’s assessment of his petition in this respect. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, we refer to the judgment on appeal as a judgment on a petition for post-conviction relief.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 2 of 7 [3] In light of the new criminal allegations, Turner’s parole agent issued a parole
violation warrant for Turner on March 19, 2021. Turner turned himself in on
that warrant that same day, and he waived his right to a preliminary hearing
before the Parole Board. Thereafter, no action was taken on his alleged parole
violations, and Turner remained incarcerated without a hearing on those
alleged violations. On December 9, 2022, the State served Turner with the
warrant on the new criminal charges.
[4] In late 2022, Turner filed his petition for post-conviction relief. In his petition,
he alleged that he had been held in custody only on the alleged parole violations
between March 19, 2021, and December 9, 2022, and that being held for that
length of time without a hearing on the alleged parole violations was contrary
to his statutory and constitutional rights. In response, the State filed a motion
for the summary disposition of Turner’s petition on the ground that he had been
held on both the alleged parole violations and the new criminal allegations
during all relevant times, and, thus, the Parole Board had no statutory or
constitutional obligation to act on the alleged parole violations while the new
criminal allegations remained pending. The post-conviction court agreed with
the State, granted the State’s motion for summary disposition, and denied
Turner’s petition for post-conviction relief.
[5] This appeal ensued.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 3 of 7 Standard of Review [6] Turner appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is well-established:
Post-conviction proceedings are civil proceedings in which a person may present limited challenges to a criminal conviction or a sentence. See Ind. Post-Conviction Rule 1; Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. Generally, “[t]he scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Gibson, 133 N.E.3d at 681. In a post-conviction action, the petitioner “has the burden of establishing his grounds for relief by a preponderance of the evidence.” P-C.R. 1(5). If there are disputed factual issues, the trial court must hold an evidentiary hearing. P-C.R. 1(4)(g), 1(5). However, pursuant to Indiana Post-Conviction Rule 1(4)(g), the court “may grant a motion by either party for summary disposition of the petition when it appears from the [evidence] submitted . . . that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” On appeal, we review “the grant of a motion for summary disposition in post-conviction proceedings . . . the same way as a motion for summary judgment.” Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Indeed, “summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact.” Id.
Aguilar v. State, 162 N.E.3d 537, 540 (Ind. Ct. App. 2020) (footnote omitted),
trans. denied.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 4 of 7 The post-conviction court erred when it granted the State’s motion for summary disposition of Turner’s petition. [7] On appeal, Turner asserts that, between March 19, 2021, and December 9,
2022, he was incarcerated solely on the alleged parole violations. He further
asserts that the length of that incarceration without a hearing on the alleged
parole violations was contrary to his state and federal rights. 2
[8] Essential to Turner’s argument is his contention that he was not formally held
on the new criminal charges until he had been served with the warrant for those
charges on December 9, 2022. On this point, Turner is correct. On March 19,
2021, Turner’s parole agent issued a parole violation warrant against Turner,
and Turner turned himself in that same day. From that day to December 9,
2022, the day on which the State served Turner with the arrest warrant for the
new criminal charges in Marion County, Turner was incarcerated only on the
alleged parole violations.
[9] Nonetheless, the State suggests that Turner was formally incarcerated on the
new criminal charges starting from the date in which the Marion Superior
Court found there to be probable cause for the filing of the new charges, i.e.,
April 7, 2021. In support of that position, the State cites the opinion of another
2 The crux of Turner’s argument on appeal alleges due process violations, and his argument on that point is well taken. However, throughout his brief on appeal, Turner also references his right to equal protection, his right to bail, his right to be free from cruel and unusual punishment, and his right to be free from double jeopardy. None of those references are arguments supported by cogent reasoning, and we therefore do not consider them. See App. R. 46(A)(8)(a). Similarly, Turner requests in his brief that he receive a preliminary injunction; Turner cannot request such relief for the first time on appeal, and we do not consider it.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 5 of 7 panel of this Court in Abron v. State, 141 N.E.3d 393 (Ind. Ct. App. 2019), trans.
denied. But nothing in Abron states that the filing of an information is equivalent
to an arrest, and we decline to read that opinion as the State does.
[10] Thus, Turner was incarcerated on alleged parole violations for approximately
630 days without a parole revocation hearing. Such a detention was contrary to
law. Indiana Code section 11-13-3-10(a)(1) (2020) required the Parole Board to
hold Turner’s revocation hearing on the alleged parole violations within sixty
days of him having surrendered himself on March 19, 2021, which the Parole
Board did not do. Accordingly, the post-conviction court erred when it granted
the State’s motion for summary disposition of Turner’s petition on the theory
that he had been simultaneously held on both the alleged parole violations and
the new criminal allegations during the timeframe in question.
[11] Indiana Code section 11-13-3-10(e) provides that, “[u]nless good cause for the
delay [in holding a revocation hearing] is established . . . , the parole revocation
charge shall be dismissed if the revocation hearing is not held within the time
established by subsection (a).” We therefore reverse the post-conviction court’s
summary disposition of Turner’s petition and remand for the court to hold an
evidentiary hearing to determine whether the State is able to show good cause
for the delay in holding Turner’s revocation hearing under section 11-13-3-10(e)
or whether Turner is entitled to have the alleged parole violations dismissed.
[12] Reversed and remanded for further proceedings.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 6 of 7 Riley, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 23A-MI-1053 | January 31, 2024 Page 7 of 7