Michael Dale Boyd, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION ON REHEARING

[1] The State has petitioned for rehearing following our reversal and remand to the Madison Circuit Court to transfer Michael Dale Boyd's petition for habeas corpus to the Marion Superior Court. Boyd appealed the Madison Circuit Court's grant of a motion for summary disposition filed by the State. In its brief, the State noted that Boyd did not dispute the trial court's decision to treat his case as one for post-conviction relief. In his reply brief, Boyd acknowledged that “that issue was not raised in this appeal” and that, if the trial court intended to treat his petition as one for post-conviction relief, “then it should have transferred [his] case to the county of conviction.” Appellant's Reply Brief at 8. In our initial decision, we observed that Ind. Post-Conviction Rule 1(1)(c) provides:

This Rule does not suspend the writ of habeas corpus, but if a person applies for a writ of habeas corpus in the county where the person is incarcerated and challenges the validity of his conviction or sentence, that court shall transfer the cause to the court in which the conviction took place, and the latter court shall treat it as a petition for relief under this Rule.

Boyd v. State, No. 23A-MI-1349, 2024 WL 2182692, at *1 (Ind. Ct. App. May 15, 2024) (quoting Ind. Post-Conviction Rule 1(1)(c) (emphasis added)). We reversed and remanded with instructions for the Madison Circuit Court to transfer Boyd's petition to the court in which his conviction took place, the Marion Superior Court. See id. The State on rehearing argues that Ind. Post-Conviction Rule 1(1)(c) requires transfer only for challenges to a conviction or sentence and not for allegations of unlawful parole revocation and that Ind. Post-Conviction Rule 1(2) requires that petitions alleging unlawful parole revocation be filed in the county of incarceration.¹

[2] While Boyd's May 9, 2022 “Verified Petition for Habeas Corpus” petition mentioned his sentence and asserted in part that “the Parole Board attempted to rescind, or reissue a contradictory order re-imposing a sentence on Petitioner,” the filings appear to focus, as the State suggests, on the revocation of his parole. Appellant's Appendix Volume II at 11-12 (some capitalization omitted). Based upon Ind. Post-Conviction Rule 1, we conclude that Boyd's petition was properly filed in the Madison Circuit Court, the court in the county in which he is incarcerated. Accordingly, we grant the State's petition for rehearing and address the merits of Boyd's arguments. See Hawkins v. Jenkins, 268 Ind. 137, 140, 374 N.E.2d 496, 498 (1978) (rejecting the argument by appellees that the trial court should have transferred the petitions to the sentencing courts and holding that “none of the petitions involved in the case at bar attacks the validity of the petitioner's conviction or sentence,” “[t]he only question presented by the petitions is whether or not the Parole Board of the state prison, sitting in LaPorte County, had the authority to revoke the various paroles and hold new sentences in abeyance,” and the trial court, where the petitioners were incarcerated, “was correct in retaining the cases in LaPorte County and rendering decision on the various petitions”).

Facts and Procedural History

[3] In February 2008, Boyd was convicted of robbery as a class B felony in cause number 49G03-0708-FA-165486, and the Marion Superior Court sentenced him to thirty years. On November 7, 2019, Boyd was released to parole.

[4] On July 16, 2020, the State charged Boyd under cause number 49G08-2007-CM-22157 (“Cause No. 157”) with operating a vehicle while intoxicated endangering a person and operating a vehicle while intoxicated related to his alleged actions on July 1, 2020. According to a Declaration of John Hosler, a Parole Agent for the Indianapolis Parole District with the Department of Correction, parole warrant 20-38449 “was issued for this new criminal charge and [Boyd] was arrested on July 10, 2020,” and “[t]he Parole Board lifted this warrant pending the outcome of the criminal case.”² Appellant's Appendix Volume II at 126.

[5] On July 31, 2020, the State charged Boyd under cause number 49D34-2007-CM-23877 (“Cause No. 877”) with operating a vehicle while intoxicated endangering a person and operating a vehicle while intoxicated related to his alleged actions on July 19, 2020. According to the Hosler's Declaration, as a result of Boyd's actions that resulted in the charges under Cause No. 877, “parole warrant 20-38641 was issued and served on July 20, 2020, and [Boyd] was ordered imprisoned pending the outcome of the second OWI offense.”³ Id. at 126.

[6] On July 16, 2021, the State filed a motion to dismiss the charges under Cause No. 877 and listed “[e]videntiary problems” as the reason. Id. at 104. That same day, the court granted the State's motion to dismiss.

[7] On July 19, 2021, Hosler prepared Parole Case Notes which stated:

-Boyd was charged on [Cause No. 157] first. We did a lift/void and continue on this charge. So we are just monitoring that case for the supplemental – there is no parole hold.

-Then he caught [Cause No. 877]. This case has been dismissed. So we would need a lift/void continue on this case.

-After the lift/void continue for [Cause No. 877] he should be released to parole supervision. ․

Transmittal Recommendations-

1.) Lift and Void Parole Warrant PV 20-38641; Effective 7-16-2021.

2.) Continue on Parole; Effective 7-16-2021

Id. at 83.

[8] In a document titled “Transmittal – Parole Board Action,” Hosler signed the top portion of the document on July 19, 2021, which contained similar remarks and recommendations as in the July 19, 2021 Parole Case Notes. Id. at 95 (capitalization omitted). The lower portion of the document is titled “Action of Indiana Parole Board,” is signed by a member of the Indiana Parole Board, dated July 20, 2021, and indicates “Lift and void PV warrant: Effective 7/20/21” under “Warrant Actions,” and indicates “Continue on parole: Effective 7/20/21” and “GPS & House Arrest for 90 Days” under “Other Actions.” Id. (some capitalization omitted).⁴ On July 20, 2021, Hosler prepared Parole Case Notes which stated: “Transmittal response received from the Indiana Parole Board as follows: ‘Lift and Void Parole Warrant PV 20-38641 and Continue on Parole with Imposes [sic] Special Stipulations GPS House Arrest for 90 Days’.” Id. at 84.

[9] On July 21, 2021, Regional Assistant District Supervisor Jeffery Jackson prepared Parole Case Notes which stated:

On 7/21/21, Regional Assistant District Supervisor emailed Correctional Release Assistant of Classification, Michelle Mears, concerning the Lift and Void release of Michael D. Boyd from custody at CIC on 7/21/21 as placement with a family member in rural Clayton, Indiana, was approved. Ms. Mears returned the following email statement, “He has been told, but he states that because the stipulation of [‘]GPS-House Arrest 90 days,[’] was hand written on the order, he does not believe it is valid. This offender has been very argumentative with staff and feels that he is being held illegally.” ․ Boyd continues to have the following pending case: Operating Vehicle While Intoxicated, MA, [Cause No. 157].

Id. at 86. In a document titled “Transmittal – Parole Board Action” and dated July 21, 2021, the Parole Board referenced warrant 20-38641, observed that Boyd had a pending case in Cause No. 157, and indicated “[a]wait local dispositions.” Id. at 96.

[10] On August 30, 2021, Boyd and the State filed a plea agreement under Cause No. 157 pursuant to which Boyd agreed to plead guilty to operating a vehicle while intoxicated endangering a person and the State agreed to dismiss the remaining charge. That same day, the court sentenced Boyd under Cause No. 157 to 365 days with 353 days suspended.

[11] On September 14, 2021, “the parole board conducted a review hearing,” and Boyd “admitted he committed” the offense under Cause No. 157.⁵ Appellant's Brief at 5. The Parole Board revoked Boyd's parole and ordered that he be assessed the balance of his sentence.

[12] On May 9, 2022, Boyd filed a “Verified Petition for Habeas Corpus” under cause number 48C01-2205-MI-139 in the Madison Circuit Court. Id. at 11 (capitalization omitted). Boyd alleged that a representative of the Parole Board, on July 21, 2021, presented him with a signed document effecting his release from custody. He also alleged that, “[l]ater that same day or the next day, the representation of the Parole Board attempted to rescind, or reissue a contradictory order re-imposing a sentence on” him. Id. at 12. He asserted that, “[a]lthough the parole period had expired by their own order prior to the beginning of [his] present confinement, the parole board, after [his] arrival at the penitentiary, purported to revoke the parole, and it is under the purported revocation of parole that [he] is now held.” Id. He stated that the Parole Board “cajoled and threatened [him] when he attempted to bring the issue to light, and told him he would face additional consequences if he stated his issue on the record.” Id. He concluded that he was “being illegally imprisoned in violation of law, and should be promptly discharged from further imprisonment.” Id.

[13] On June 28, 2022, the State filed a “Motion for Summary Disposition.” Id. at 36. The State mentioned that Boyd was charged under Cause No. 877 on July 31, 2021, and, “[a]s a result, parole warrant 20-38641 was issued and served on July 20, 2020, and [Boyd] was ordered imprisoned pending the outcome of” Cause No. 877. Id. It asserted that the counts in Cause No. 877 were dismissed on July 16, 2021, and a “transmittal was then sent to the Parole Board on July 19, 2021, recommending that parole warrant 20-38641 be lifted and [Boyd] continue on parole pending the outcome of his” charges under Cause No. 157. Id. It stated that, “[o]n July 20, 2021, the Parole Board returned the transmittal approving the recommendation to lift warrant 20-38641, in addition to an added stipulation by the Parole Board that [Boyd] wear a GPS monitoring device and serve 90 days of home detention.” Id. at 36-37. It asserted that Boyd “was provided with documents pertaining to his parole and release from Correctional Industrial Facility from his assigned caseworker on July 21, 2021,” including a “transmittal that indicated the GPS/home detention stipulation, which [Boyd] took issue with,” and that Boyd told his assigned caseworker that “the GPS/home detention stipulation was wrong and that he did not believe that it was valid, as he had not previously been ordered on home detention.” Id. at 37. It alleged that Boyd's statements were forwarded to the Parole Board which “rescinded its prior voiding and lift of parole warrant 20-38641 and ordered [Boyd] be confined pending the disposition of” Cause No. 157; Boyd subsequently pled guilty in Cause No. 157 on August 30, 2021; Boyd pled guilty to a parole violation at a hearing on September 14, 2021; and the Parole Board unanimously voted to find him guilty of the violation and to order him to serve the balance of his sentence. Id. Boyd filed a response, and the State filed a reply asserting that the action was properly considered a petition for post-conviction relief.

[14] On February 28, 2023, the Madison Circuit Court entered an order finding that Boyd's petition was properly considered a petition for post-conviction relief and granting the State's motion for summary disposition. The court found that Boyd waived his right to challenge his parole revocation because he “conceded at his revocation hearing that he pled guilty to [the] first OWI and conceded to drinking at his aunt's home before driving.” Id. at 188. With respect to Boyd's argument that there were genuine issues preventing summary disposition because “by voiding the parole warrant after the dismissal of the second OWI, the State should not be allowed to resurrect the warrant,” the court found that “this is not a material issue that precludes summary disposition.” Id. The court also found:

As to whether the Parole Board could not resurrect the warrant, the Court finds this too narrow an interpretation of the Parole Board's authority in the instant matter. Mr. Boyd's first OWI was pending. Based on this fact alone, the Parole Board can order Mr. Boyd incarcerated, intensify reporting and supervision, or dismiss the parole violation charge altogether.

After the dismissal of Mr. Boyd's second OWI, the first OWI remained pending at the time the parole warrant was rescinded. Even if the warrant was void and had no legal effect, this does not mean that the Parole Board is powerless over Mr. Boyd. At most, Mr. Boyd would have been entitled to be returned to parole on July 20, 2021, pending the disposition of the first OWI. The moment that Mr. Boyd pled guilty to the first OWI on August 30, 2021, he was subject to the Parole Board for a revocation hearing. Because this revocation hearing was timely, the Court finds that there is no genuine dispute of material fact and the Respondents are entitled to judgment as a matter of law.

Id. at 189. Boyd filed a motion to correct error in which he asserted that his parole expired on July 20, 2021, pursuant to Ind. Code § 11-13-3-8(g) and that the Parole Board did not re-instate his parole before it expired. Boyd attached an affidavit in which he asserted that “parole warrant 20-38641 only included the second OWI because [he] had already admitted to and served his sanction on the first OWI.” Id. at 201. The court denied Boyd's motion to correct error.

Discussion

[15] Boyd argues that summary disposition was improper because a genuine issue of material fact existed. Specifically, he contends that “the warrant for the first OWI was and is void” and that, while “[t]he State wants to resurrect the first warrant,” “[t]he problem is that that first warrant had already been voided for well over a year since July 10, 2020,” “[t]here is a parole note dated July 15, 2020 indicating Warrant #20-38749 was ‘expired,’ ” and “the transmittal sheet indicates [he] was released back to parole on July 20, 2021, a day before the State tried to rescind its void of the first warrant.” Appellant's Brief at 14-15 (quoting Appellant's Appendix Volume II at 74).⁶ He argues that “the State not only reneged on its voiding of the warrant for the first OWI, but it also waited a day too long to do so since there was nothing holding [him] in DOC after the second case was dismissed and the corresponding warrant was lifted effective July 20, 2021.” Id. at 15.

[16] Boyd also argues that Ind. Code § 11-13-3-8(g) requires that he “be awarded his good time credit of 365 days he served since the warrant for which he served the 365 days only covered the second OWI which was dismissed due to lack of evidence.” Id. at 16. He asserts that, “[e]ven if we assume arguendo that the State could have filed a new violation once Mr. Boyd pled guilty to the first OWI on August 30, 2021, the State ․ would be required to follow the two-step process for the parole revocation” including a preliminary hearing to determine whether there was probable cause and a revocation hearing before the final decision on revocation. Id. at 18-19. In his reply brief, Boyd argues that he did not waive his right to challenge his parole revocation and asserts that he tried to explain “to the parole board on September 14, 2021, and the chairperson said he did not want to hear anything about Double Jeopardy and abruptly turned off the recording.” Appellant's Reply Brief at 3-4. He also argues that his due process rights were violated because he did not receive a full and fair parole hearing.

[17] An appellate court reviews the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a motion for summary judgment. Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Thus, 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.

[18] Ind. Post-Conviction Rule 1(4)(g) provides:

The court may grant a motion by either party for summary disposition of the petition 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. ․ If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

[19] With respect to Boyd's argument that a hearing was required, we note that Boyd asserts on appeal that “[o]n September 14, 2021, the parole board conducted a review hearing, and [he] again admitted he committed the first OWI.” Appellant's Brief at 5. In light of his assertion that the alleged parole violation was a criminal conviction, we cannot say a preliminary hearing was required. See Ind. Code § 11-13-3-9(d) (“If the alleged violation of parole is the parolee's conviction of a crime while on parole, the preliminary hearing required by this section need not be held.”). Further, to the extent Boyd's argument is based upon what occurred at the September 2021 hearing, we note that Boyd cites Exhibit H on appeal and asserts that this exhibit is a video of the September 2021 parole hearing.⁷ In his notice of appeal, Boyd asserts that “[t]here was no hearing so there is no transcript.” Notice of Appeal at 3. The record does not contain a copy of Exhibit H or a video or transcript of the September 2021 hearing. Accordingly, we conclude that Boyd has waived any argument relying on the September 2021 hearing. See Lifeline Youth & Fam. Servs., Inc. v. Installed Bldg. Prod., Inc., 996 N.E.2d 808, 814-815 (Ind. Ct. App. 2013) (holding appellant waived any argument where it relied on evidence presented during trial when appellant did not request transcription of the trial pursuant to Ind. Appellate Rule 9(F)(5)).

[20] The State asserts that Boyd conflates a parole violation charge with a warrant. Ind. Code § 11-13-3-8 is titled “Violation of parole; procedures” and provides in part:

(a) If an employee of the department assigned to supervise and assist parolees believes that a parolee has violated a condition to remaining on parole, he may submit a written report of the violation to the parole board. After considering the report and making any further investigation it considers appropriate, the parole board may:

(1) dismiss all further proceedings on the alleged violation;

(2) instruct the employee to handle the matter informally;

(3) request the parolee to meet informally with the parole board to review his parole obligations; or

(4) intensify parole supervision and reporting.

(b) Upon a showing of probable cause to believe the parolee violated a condition to remaining on parole, the chairman (or a member of the parole board designated by the chairman to act in the absence of the chairman) may issue an order for the parolee to appear for a revocation hearing on the alleged violation.

(c) Upon a showing of probable cause to believe the parolee violated a condition to remaining on parole, the chairman (or a member of the parole board designated by the chairman to act in the absence of the chairman) may issue a warrant for the arrest and confinement of the parolee pending a preliminary hearing. An employee of the department or any person authorized to execute warrants may execute the warrant.

[21] Subsection (a) speaks of a “violation,” while subsection (c) discusses the issuance of a “warrant” for the arrest and confinement of a parolee. We cannot say that the lifting or voiding of the warrant in this case impacted or limited the Parole Board's authority in terms of addressing Boyd's parole violation.

[22] As for Boyd's citation to Ind. Code § 11-13-3-8(g) and his argument that he is entitled to credit time of 365 days, we disagree. Ind. Code § 11-13-3-8(g) provides:

The issuance of an order to appear or arrest warrant under this section tolls the period of parole until the parole board's final determination of the charge. However, the tolled period shall be restored if there is a finding of no violation, if a finding of a violation is later overturned, or if the parole violation charge is dismissed.

While Boyd asserts the first warrant was lifted and voided and that the counts in Cause No. 877 were dismissed, he does not specifically argue or point to the record in his argument to support the conclusion that there was a finding of no violation, a finding of a violation was later overturned, or the parole violation charge was dismissed.

[23] For the foregoing reasons, we affirm the trial court's order.

[24] Affirmed.

Foley, J., and Riley, Sr. J., concur.

FOOTNOTES

1.   Ind. Post-Conviction Rule 1(2) provides in part that “[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.”

2.   The record does not contain a copy of parole warrant 20-38449.

3.   The record does not contain a copy of parole warrant 20-38641.

4.   The record also contains a copy of this document with the handwritten words “Rescinded” and “VOID.” Appellant's Appendix Volume II at 94.

5.   On appeal, Boyd asserts: “On September 14, 2021, the parole board conducted a review hearing, and [he] again admitted he committed the first OWI. See Exhibit H (video of Sept. 14, 2021 parole hearing).” Appellant's Brief at 5. As discussed below, the record does not contain a copy of Exhibit H or a transcript of the September 14, 2021 hearing.

6.   The page to which Boyd cites is titled “Parole Case Notes,” a portion of the document indicates that it was prepared on July 15, 2020, and it states:Warrant Number: 20-38479 (expired).Warrant Served: 07/10/2020PCH/Waiver: 7/10/2020New PRD: 11/07/2019 (L/V on 7/13/2020)New MRD: 08/08/2037Appellant's Appendix Volume II at 74. Boyd does not indicate whether the reference to warrant “20-38479,” id., was merely a scrivener's error and the note intended to refer to parole warrant 20-38449. Another portion of that page mentions an activity date of July 20, 2020, and states:Parole Board approved PV-Warrant#20-38641, as such OIS/OCMS updated as required and SPA Spangler provided a copy of it for attempt at apprehension to be completed.Subject OR'd on 7-19-20, after a new criminal conduct charge from custody over a weekend.Id.

7.   In his statement of facts, Boyd cited Exhibit H for the proposition that he admitted at the September 14, 2021 hearing to violating parole by committing the OWI offense on July 1, 2020. He then asserted, without citation to the record, that he “attempted to argue that the few days he spent in jail (from July 1, 2020 until he was released on his own recognizance the next day[,] then from July 10 to July 13, 2020 after he admitted the violation to parole) was the sanction for the parole violation.” Appellant's Brief at 9. He then states: “The parole board instead imposed the full back up time and ordered [him] to ‘serve the balance of [his] sentence.’ ” Appellant's Brief at 9 (quoting Appellant's Appendix Volume II at 43).

Brown, Judge.

Judge Foley and Senior Judge Riley concur.