Terry J. Morgan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 24 2019, 6:58 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Terry J. Morgan Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Natalie F. Weiss Patricia C. McMath Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Terry J. Morgan, June 24, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-MI-1762 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Respondent. Sims, Judge The Honorable Kevin M. Eads, Magistrate Trial Court Cause No. 48C01-1801-MI-14

Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 1 of 6 [1] Terry J. Morgan (“Morgan”) appeals the Madison Superior Court’s denial of

his petition for habeas corpus following the Parole Board’s determination that

he had violated his parole. [2] Morgan presents two issues for our review, which we restate as:

1. Whether the trial court committed error by considering his petition for habeas corpus as a petition for post-conviction relief; and,

2. Whether the trial court committed error by granting the State’s Motion for Summary Disposition.

[3] We affirm.

Facts and Procedural History [4] In August 2004, Morgan was convicted of Robbery Resulting in Bodily Injury

in Vigo County, Indiana. As a result, he was sentenced to twenty years of

incarceration, with credit time for 192 days served in the Vigo County Jail in

addition to 1:1 good credit time for a total of 384 days. He was mandatorily

paroled on February 16, 2016. A warrant for parole violation was issued four

months later, on June 28, 2019, and served the next day. [5] On July 6, 2019, Morgan signed a waiver of preliminary hearing and pleaded

guilty to violating two conditions of his parole. He admitted to violating Rule

5B which prohibited “[u]sing, possessing, or trafficking illegally in a controlled

substance” after testing positive for cocaine and marijuana. Appellant’s App. p.

98. He also admitted to violating Rule 10, which provided that he would Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 2 of 6

“abide by any special conditions imposed by the Indiana Parole Board, which

have been reduced to writing and included as a condition of my parole” when

he failed to report for a substance abuse appointment, complete a substance

abuse evaluation, and attend substance abuse treatment. Id. [6] After he was re-incarcerated, Morgan filed a habeas petition claiming that he

was unlawfully detained because he was not informed that substance abuse

evaluations and treatment classes were conditions of his parole. The State then

filed a Motion for Summary Disposition, arguing that Morgan’s incarceration

was not unlawful because he pleaded guilty to these parole violations. The trial

court granted the State’s motion on November 16, 2018. Morgan now appeals.

Discussion and Decision [7] 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 v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980

(Ind. Ct. App. 2001), superseded by statute on other grounds. “One is entitled

to habeas corpus only if he is entitled to his immediate release from unlawful

custody.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 3 of 6 [8] “While on parole the parolee remains in legal custody because, although parole

is an amelioration of punishment it is, in legal effect, still imprisonment.” Page

v. State, 517 N.E.2d 427, 430 (Ind. Ct. App. 1988), trans. denied. [9] We review the grant of a motion for summary disposition in post-conviction

proceedings the same way we would a motion for summary judgment. Norris v.

State, 896 N.E.2d 1149, 1151 (Ind. 2008). We review a trial court’s habeas

decision for an abuse of discretion. Benford v. Marvel, 842 N.E.2d 826, 828 (Ind.

Ct. App. 2006). Without reweighing the evidence this court considers only that

evidence most favorable to the judgment and reasonable inferences drawn

therefrom. Id. [10] Morgan initially argues that it was error for the trial court to consider his

petition as a petition for post-conviction relief as opposed to a petition for

habeas corpus. A petitioner should file a petition for post-conviction relief

instead of a petition for a writ of habeas corpus when he claims his parole was

improperly revoked, unless he is claiming that he is entitled to immediate

release. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008); Hale v. Butts,

88 N.E.3d 211, 214 (Ind. Ct. App. 2017). However, “if a petitioner erroneously

captions his action as petition for a writ of habeas corpus rather than post-

conviction relief, courts will frequently and properly treat the petition as one for

post-conviction relief, based on the content of the petition, rather than the

caption. Partlow, 756 N.E.2d at 980 (citing Hawkins v. Jenkins, 374 N.E.2d 496,

498 (Ind. 1978)). Because Morgan asks us to decide the merits of his case, we

need not decide whether the trial court properly determined that Morgan’s

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 4 of 6

petition requested post-conviction relief. See Partlow, 756 N.E.2d at 981

(deciding habeas corpus petition on the merits despite trial court’s

misclassification of the petition as one for post-conviction relief). Thus, we

address the merits of the matter. [11] Morgan argues that he was not provided notice that he was required to attend a

substance abuse evaluation and classes.1 He admits the substance abuse

recommendation “had been verbally communicated to Morgan by his parole

agent.” Appellant’s Br. at 9. He also admits the “agents of Community

Outreach Network Services were attempting to contacting [sic] him[.]”

Appellant’s Br. at 8. Regardless, Morgan signed a waiver of preliminary hearing

in which he pleaded guilty to violations of his parole agreement, including the

violation of which he presently complains he did not have proper notice.

Appellant’s App. p. 99. Because he admitted to the violation of which he

complains he did not have proper notice, in addition to testing positive for

cocaine and marijuana, we find this argument unavailing.

Conclusion [12] Because Morgan pleaded guilty to both violations of his parole, he is not

unlawfully incarcerated. Additionally, because Morgan asks us to address the

merits of this matter concerning his parole, we consider his pleading as a

1 Morgan also argues that the warrant was issued without probable cause. Notwithstanding the fact that he tested positive for cocaine and marijuana, he first raises this issue on appeal, and therefore this argument is waived.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 5 of 6

petition for post-conviction relief. We affirm the trial court’s granting of the

State’s Motion for Summary Disposition. [13] Affirmed.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 6 of 6