Opinion
24A-MI-379
09-12-2024
David E. Farrell, Appellant v. Plainfield Correctional Facility, et al., Appellees
Appellant Pro Se David E. Farrell Plainfield, Indiana 46168 Attorneys for Appellee Theodore E. Rokita Indiana Attorney General David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Stephenie LeMay-Luken, Judge Trial Court Cause No. 32D05-2311-MI-313
Appellant Pro Se David E. Farrell Plainfield, Indiana 46168
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] David Farrell, pro se, appeals the denial of his petition for a writ of habeas corpus. We affirm.
Issues
[¶2] Farrell raises the following restated issues:
I. Whether the denial of his habeas petition was an abuse of the trial court's discretion, and
II. Whether the failure to hold a hearing on his petition denied him a meaningful opportunity to be heard.
Facts and Procedural History
[¶3] Farrell, at all relevant times, was (and remains) incarcerated in the Department of Correction ("DOC") at the Plainfield Correctional Facility. His earliest possible release date is November 29, 2029.
[¶4] In May 1997, in case 79D02-9703-CF-27 ("CF-27"), Farrell was sentenced to thirty years in the DOC, with thirteen and one-half years suspended. On August 24, 2006, the State petitioned to revoke Farrell's probation on the ground that Farrell had violated the terms of his probation by committing burglary, theft, and forgery, as well as being a habitual offender, in case 79D02-0608-FB-59 ("FB-59").
[¶5] In August 2007, in FB-59, a jury found Farrell guilty of twenty felonies, and the court found Farrell to be a habitual offender. At the November 1, 2007, sentencing hearing, the court sentenced Farrell to an aggregate term of thirty-five years to be served in DOC and granted him credit of 354 days for time served. As an aggravating factor, the court found that Farrell was on probation under CF-27 when he committed the crimes for which he was convicted in FB-59.
[¶6] On November 1, 2007, the trial court revoked Farrell's probation in CF-27 after Farrell appeared in custody and admitted the allegations in the petition to revoke his probation. The court sentenced Farrell to serve in the DOC the thirteen and one-half years that previously had been suspended in CF-27. The abstract of judgment shows that the thirteen and one-half years was to be served consecutively to his sentence in FB-59.
In September 2011, the court amended the judgment in CF-27 to reflect the award of "169 days credit time for time served together with good time credit as ordered in 79D02-0909-PC-6." Appellees' App. at 22-23. DOC reflected this award in a change of commitment form that same month with a change in Farrell's earliest possible release date from February 12, 2031, to August 27, 2030.
[¶7] On November 17, 2023, Farrell filed a petition for a writ of habeas corpus under Indiana Code Article 34-25.5, alleging that he was entitled to immediate release. The crux of his allegation seemed to be that his consecutive sentences in CF-27 and FB-59 were illegally "split" because he allegedly served part of his suspended sentence for CF-27, then served the sentence for FB-59 to its completion, then served the remainder of the sentence in CF-27. App. at 28. He contended that this alleged "split" violated Indiana Code Section 35-50-1-2, which required that his suspended sentence in CF-27 be served consecutively to his sentence in FB-59. Id. at 32. Farrell contended that he was therefore entitled to immediate release from incarceration. The trial court set the matter for a hearing, and the State subsequently filed its response. On January 10, 2024, the court vacated the previously scheduled hearing and entered an order denying Farrell's habeas petition. This appeal ensued.
Discussion and Decision
[¶8] Farrell appeals the denial of his petition for a writ of habeas corpus. We review such a decision for an abuse of discretion. Willet v. State, 151 N.E.3d 1274, 1278 (Ind.Ct.App. 2020). We do not reweigh the evidence, and we consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom to determine whether sufficient evidence sustains that decision. Id. We may affirm the trial court's judgment on any basis sustainable by the record, even on a theory not used by the trial court. Id.
[¶9] Farrell's contentions in his pro se appeal are unclear, and his legal citations are frequently inapposite. "Pro se litigants are held to the same legal standard as licensed attorneys and are afforded no inherent leniency simply by virtue of being self-represented." Id. at 1277. As the State notes, because Farrell fails to make cogent arguments and cite relevant supporting legal authority as required under the Indiana Appellate Rules, his arguments are waived. Id.; see also Appellate R. 46(A)(8).
[¶10] Waiver notwithstanding, as best we can discern, Farrell seems to make the same unsupported contention that he made to the trial court-that his consecutive sentences in CF-27 and FB-59 were "illegal[ly] split" in violation of Indiana Code Section 35-50-1-2. Appellant's Br. at 10. That statute provides, in relevant part:
(d) 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; or
(2) while the person is released:
(A) upon the person's own recognizance; or
(B) on bond;
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.Ind. Code § 35-50-1-2(d) (2007). Pursuant to this statute, the trial court ordered Farrell's terms of imprisonment in CF-27 and FB-59 to be served consecutively.
[¶11] Farrell seems to assert that the statute was violated because he served part of his suspended sentence for CF-27, then served the sentence for FB-59 to its completion, then served the remainder of the sentence in CF-27. However, Farrell cites no evidence in support of this factual claim. Rather, the record discloses that: in FB-59, Farrell was alleged to have committed additional crimes while he was on probation under CF-27; Farrell was incarcerated while awaiting trial in FB-59; Farrell was convicted in FB-59 and sentenced to thirty-five years, with credit of 354 days for time served; Farrell's probation was revoked in CF-27, and he was ordered to serve his previously-suspended thirteen and one-half-year sentence consecutive to his sentence in FB-59; Farrell served his sentence in FB-59, with credit given for time served prior to conviction; Farrell then began serving the previously-suspended sentence in CF-27. Thus, in accordance with the trial court's orders and statutory law, Farrell served his previously-suspended sentence in CF-27 consecutive to his sentence in FB-59. The trial court did not abuse its discretion when it denied Farrell's habeas petition.
In addition to providing no factual support for his claim, Farrell also points to no harm that could have resulted from the alleged statutory violation. That is, even if the record showed-which it does not-that he served part of his previously suspended sentence in CF-27, then his entire sentence in FB-59, and then the rest of his sentence in CF-27, he still would have served the same total amount of time. And Farrell provides no supporting legal authority or cogent argument for his contention that he was entitled to immediate release from imprisonment even though he did not finish serving his previously suspended sentence in CF-27.
[¶12] Farrell provides even less cogent argument and fewer legal citations for his claim that the trial court denied him "a meaningful opportunity to demonstrate" that he is entitled to habeas relief. Appellant's Br. at 12. Farrell made his arguments to the trial court when he filed his habeas petition, and he has failed to articulate how that was an insufficient opportunity to be heard. Therefore, this contention is also waived. See App. R. 46(A)(8). Waiver notwithstanding, to the extent Farrell asserts that the failure to hold a hearing on his petition was a denial of his right to be heard, he is incorrect; no evidentiary hearing is required on a petition for a writ of habeas corpus. See Garrison v. Sevier, 165 N.E.3d 996, 999 (Ind.Ct.App. 2021), trans. denied.
Conclusion
[¶13] Farrell has waived his claims on appeal by failing to provide cogent argument and failing to cite supporting record evidence and legal authority as required by our Appellate Rules. Waiver notwithstanding, the trial court did not abuse its discretion when it denied Farrell's habeas petition, and it did not deprive Farrell of an opportunity to be heard on that petition.
[¶14] Affirmed.
Altice, C.J., and Mathias, J., concur.