Tom Ross, Appellant-Plaintiff v. Brian English, Appellee-Defendant (2025)

MEMORANDUM DECISION

Case Summary

[1] Tom Ross, pro se, appeals the trial court's grant of summary judgment to Brian English, warden of the Miami Correctional Facility (“MCF”), on Ross's petition for a writ of habeas corpus. We affirm.

Facts and Procedural History

[2] Ross was convicted of murder in 1995. For that conviction, he was sentenced to sixty years. In August 2022, while still on parole, he was charged with harassment and held in the Tippecanoe County Jail awaiting trial. Based on the harassment charge, the Indiana Parole Board (“IPB”) issued a warrant for a violation of probation. He pleaded guilty to and was convicted of harassment in January 2023. He was sentenced to 180 days, to be served consecutively to his murder sentence. With pre-trial credit time, his harassment sentence was deemed fully executed in the plea agreement:

The Defendant is currently incarcerated in the Tippecanoe County Jail for a warrant ․ and a parole violation. The parties agree the Defendant has served his executed sentence in full ․

Appellant's App. Vol. 2 at 35. In February, the IPB found Ross guilty of violating parole by committing harassment and revoked his parole status. The IPB assessed the balance of Ross's sentence for murder, to be served at MCF.

[3] Ross then filed a petition for a writ of habeas corpus, claiming he had no obligation to serve the balance of his murder sentence because his harassment sentence—which by statute had to be served consecutively—had been fully executed. English moved for summary judgment, designating the affidavit of the Director of the Department of Correction's (“DOC”) Sentence Computation/Release Unit and Ross's IPB File as evidence. English alleged he was entitled to summary judgment because there was no genuine issue of material fact as to whether Ross was lawfully in custody. Ross filed a response without designating any evidence in opposition to English's motion. The trial court granted English's motion, concluding Ross had failed to show he was entitled to immediate release.

Summary Judgment Standard of Review

[4] We review a trial court's summary judgment decision de novo, applying the same standard as the trial court. U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215, 220 (Ind. 2023). In doing so, we consider only the evidence designated to the trial court and draw all reasonable inferences in the nonmovant's favor. Ebert v. Ill. Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022). A party seeking summary judgment must establish that “the designated evidentiary matter shows ․ there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).

[5] The non-moving party, however, cannot “rest upon the mere allegations or denials of his pleading.” T.R. 56(E). Likewise, “speculation is not enough to overcome summary judgment.” Cosme v. Clark, 232 N.E.3d 1141, 1150 (Ind. 2024) (quoting Griffin v. Menard, Inc., 175 N.E.3d 811, 813 (Ind. 2021)). Instead, the party opposing summary judgment must, by affidavit or other evidence, “set forth specific facts showing that there is a genuine issue for trial.” T.R. 56(E). “And ‘[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.’ ” Hughley, 15 N.E.3d at 1003 (quoting McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009)).

[6] Here, English met his initial burden by designating evidence showing Ross was not entitled to release. The burden then shifted to Ross to designate counter evidence establishing a genuine issue of material fact existed or that he was entitled to judgment as a matter of law. For the reasons explained below, Ross failed to satisfy his burden.

Ross was not entitled to immediate release.

[7] “Every 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.” Ind. Code § 34-25.5-1-1 (1998). “A petitioner is entitled to habeas corpus only if he is entitled to immediate release from unlawful custody.” Harrison v. Knight, 127 N.E.3d 1269, 1271 (Ind. Ct. App. 2019) (citing Hawkins v. Jenkins, 374 N.E.2d 496, 498 (Ind. 1978)). In his petition for habeas corpus, Ross argued the IPB lost jurisdiction to assess the balance of his murder sentence. Because he served the harassment sentence—which by statute had to be served consecutively to his murder sentence—Ross argued he was entitled to release. The crux of Ross's argument seems to be that the sentence for a parole violation in the murder case cannot occur after the term of incarceration for the harassment case is complete.

[8] But the plain language of Indiana Code Section 35-50-1-2(e) belies Ross's claim:

If, after being arrested for one (1) crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime[,]

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.

(emphasis added).

[9] “A person released on parole remains on parole from the date of release until the person's fixed term expires, unless the person's parole is revoked or the person is discharged from that term by the parole board.” I.C. § 35-50-6-1(b) (2023). In other words, a parolee “remains on parole unless the parolee presents evidence that the parole board explicitly used the phrase ‘turn over’ to eliminate a parole obligation or otherwise evinced an intent to effect a discharge of the parolee's sentence.” Hale v. Butts, 88 N.E.3d 211, 215 (Ind. Ct. App. 2017). And a person “whose parole is revoked shall be imprisoned for all or part of the remainder of the person's fixed term.” I.C. § 35-50-6-1(c).

In Hale, a panel of this Court similarly reviewed a trial court's denial of a writ of habeas corpus for a defendant who violated parole, served a new sentence in another state, and was returned to Indiana. 88 N.E.3d at 212–13. The panel held the “State does not lose jurisdiction over a parolee, as Hale seems to claim, whenever it allows the parolee to be removed to another state to serve a different sentence.” Id. at 215. Instead, Hale was still on parole in Indiana and “the Indiana Parole Board had jurisdiction over Hale until his Indiana parole was discharged or revoked or his fixed term of imprisonment expired.” Id.

[10] In this case, although Ross was not moved to another state as Hale was, he served the harassment sentence while on parole. Moreover, like in Hale, the IPB never “turned over” or discharged Ross from his murder sentence. After he pleaded guilty to harassment, the IPB revoked Ross's parole status and assessed the remainder of his sentence for murder. The sentence for harassment complied with Indiana Code Section 35-50-1-2(e) as the trial court ordered it served consecutively to the murder sentence. With credit time, however, Ross satisfied his 180-day sentence. As the State points out, “because those 180 days were credited to him for his time served in pre-trial confinement, he will not have any additional time” added at the end of his murder sentence. Appellee's Br. at 9. The fact Ross's harassment sentence was executed by time served did not free him from the obligation to serve the balance of his murder conviction. See I.C. § 35-50-6-1(b) & (c).

[11] As the non-moving party opposing the motion for summary judgment, Ross failed to demonstrate he was entitled to immediate release. See Harrison, 127 N.E.3d at 1271; see also Hughley, 15 N.E.3d at 1003 (observing the non-moving party has the burden of persuading the appellate court the grant of summary judgment was erroneous). English designated evidence demonstrating Ross pleaded guilty to harassment while on parole and was assessed the remainder of his murder sentence. Ross designated no evidence he was “turned over” or discharged from his sentence for murder.¹ Under these circumstances, the trial court did not err in granting summary judgment to English and denying Ross's petition for a writ of habeas corpus.²

Conclusion

[12] Ross was not entitled to immediate release, so the grant of summary judgment was not erroneous.

[13] Affirmed.

FOOTNOTES

1.   For these reasons, Ross's reliance on Meeker v. Indiana Parole Board, 794 N.E.2d 1105 (Ind. Ct. App. 2003), trans. denied, is not dispositive. In Meeker, evidence showed the IPB had “effectively discharged” the defendant from convictions which served as the basis for the revocation of parole. 794 N.E.2d at 1108–09. Here, the evidence demonstrated the IPB never intended to discharge Ross from his murder sentence.

2.   Ross also asserts the trial court violated his Due Process rights. See Appellant's Br. at 14. Ross failed to raise the claim below and waived appellate review. See Terpstra v. State, 138 N.E.3d 278, 285–86 (Ind. Ct. App. 2019) (explaining due process “rights are subject to waiver, and claims are generally waived if raised for the first time on appeal”) (citation omitted), trans. denied. Ross does not argue fundamental error. See Applegate v. State, 230 N.E.3d 944, 952 (Ind. Ct. App. 2024) (declining to conduct fundamental error analysis where the defendant argued the issue for the first time until their reply brief), trans. denied.

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.