Opinion
22A-MI-229
06-22-2022
Earl D. Wilder, Appellant-Petitioner, v. Timothy Hunter and Indiana Parole Board, Appellees-Respondents.
Appellant Pro Se Earl D. Wilder New Carlisle, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Frances Barrow Benjamin M.L.Jones Deputy Attorneys General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Miami Circuit Court The Honorable Arthur Christopher Lee, Judge Trial Court Cause No. 52C01-2110-MI-885
Appellant Pro Se Earl D. Wilder New Carlisle, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Frances Barrow Benjamin M.L.Jones Deputy Attorneys General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, Earl Wilder (Wilder), appeals the trial court's order dismissing and/or denying his Application/Complaint for Writ of Habeas Corpus in favor of Appellees-Defendants, Miami County Sheriff Timothy Hunter (Sheriff Hunter) and the Indiana Parole Board (Parole Board).
Wilder filed his petition against Sheriff Hunter, the Parole Board, and other unnamed defendants, but he did not name additional parties. Sheriff Hunter does not participate in this appeal.
[¶2] We affirm.
ISSUES
[¶3] Wilder presents this court with three issues, which we consolidate and restate as:
(1) Whether the trial court abused its discretion when it treated Wilder's petition for writ of habeas corpus as one requesting post-conviction relief; and
(2) Whether the trial court erred when it summarily denied Wilder's petition and granted summary judgment to the Parole Board.
FACTS AND PROCEDURAL HISTORY
[¶4] On January 5, 2001, Wilder was sentenced to fifty years in Miami County in Cause Number 52C01-0008-CF-67 (Cause -67) for attempted murder, rape, criminal deviate conduct, and two counts of intimidation. Of that fifty-year sentence, thirty years were suspended to probation. On November 12, 2007, Wilder was released from the DOC and began serving his probation in Cause -67.
On January 5, 2001, Wilder was also sentenced to one year in unrelated Cause Number 52D01-0007-DF-119, which was to be served after the sentence in Cause -67. The nature of this conviction is unclear from the record, and neither party bases any of its appellate arguments on this unrelated cause.
[¶5] In December 2011, while still on probation in Cause -67, Wilder was arrested in Howard County on several new drug-related charges in Cause Number 34D01-1112-FB-1125 (Cause -1125). On September 26, 2012, Wilder pleaded guilty in Cause -1125 and, on October 1, 2012, was sentenced to ten years, with eight years executed and two years suspended to supervised probation. The State filed a notice of probation violation in Cause -67, and Wilder admitted to violating his probation. On November 14, 2012, the Miami County trial court imposed ten years of Wilder's previously-suspended Cause -67 sentence, to be served "consecutive" to the sentences imposed in Cause -1125 and Cause Number 34D03-1112-FD-1123. (Appellee's App. Vol. II, p. 26).
The nature of this case and the sentence imposed is unclear from the record.
[¶6] Having earned credit time while incarcerated, on July 7, 2020, Wilder was released on parole. On August 19, 2020, Wilder executed a parole release agreement whereby he acknowledged that he was prohibited from engaging in criminal conduct, including possession of illegal substances, while on parole. On September 26, 2021, after a parole search of Wilder's home, Wilder was charged in Miami County in Cause Number 52D02-2109-F6-000320 (Cause -320) with possession of methamphetamine, drug paraphernalia, and a syringe. Wilder was taken into custody and held at the Miami County Jail. A parole hold was also placed on Wilder.
There is no evidence concerning this parole hold in the record. However, the Parole Board does not dispute that Wilder was placed on a parole hold.
[¶7] On October 15, 2021, while still being held in the Miami County Jail, Wilder filed his Application/Complaint for Writ of Habeas Corpus along with a supporting memorandum. Wilder alleged that he was being unlawfully detained at the Miami County Jail since September 26, 2021, and was entitled to immediate release due to "a parole hold placed on him by the [Parole Board]" by Parole Agent Craig Smith (Agent Smith) who had alleged "that Wilder had violated the terms of his parole and had him arrested." (Appellant's App. Vol. II, p. 11). Wilder argued that his detainment under the parole hold was unlawful because he had begun his parole on July 7, 2020, that he could only be lawfully placed on parole for one year, and that, thus, his parole had expired on July 7, 2021. Wilder more fully alleged that
[u]pon reporting to [] Agent Smith, he was told that he would be required to complete the five years of the "earned credit time" before he could be released to Howard Co. Probation to complete the two (2) years of his suspended sentence on probation. Wilder should not have been required to serve more than one (1) year of parole after his release from prison.(Appellant's App. Vol. II, p. 12). Wilder's argument that he could only be the subject of one year of lawful parole was underpinned by his theory that, in contravention to Indiana Code section 35-50-1-2(d)(1) (2012), the Miami County trial court judge who presided over his probation revocation in Cause -67 had illegally ordered him to first serve his eight years in Cause -1125 before serving his ten-year probation revocation sanction in Cause -67. According to Wilder, the trial court was required to order him to serve his ten years in Cause -67 before serving his eight-year sentence in Cause -1125. This purportedly illegal ordering of his sentences also formed the basis for Wilder's claim that the Cause -67 trial court judge had violated the separation of powers doctrine by usurping the Legislature's province in enacting Indiana's sentencing statutes. Wilder argued that had he served his sentences in the desired order, and assuming that he earned credit time, he could have served part of his five years of parole in Cause -67 while serving his Cause -1125 sentence, thus finishing his parole by July 7, 2021.
[¶8] On December 8, 2021, the Parole Board filed a motion to dismiss with several exhibits appended, including case summaries for Causes -67, -1125, and -320, Wilder's parole case notes, and his parole release agreement. The basis for the Parole Board's motion was three-fold: (1) Wilder's petition was premature and the trial court had no jurisdiction because Wilder's parole had not been revoked; (2) Wilder's argument based on his consecutive sentencing in Causes -67 and -1125 was in the nature of a challenge to his sentence and must be construed as a request for post-conviction relief; (3) Wilder's consecutive sentences in Causes -67 and -1125 were lawful, and, therefore, his lawful parole had not expired when he was placed on the parole hold at issue.
[¶9] On December 21, 2021, the trial court held a brief hearing on whether Wilder's petition was the appropriate subject for a petition for habeas relief. On January 3, 2022, Wilder moved for summary judgment on his petition. On January 18, 2022, the trial court issued an order dismissing Wilder's habeas corpus petition. The trial court's order also provided that it had considered Wilder's petition as one for post-conviction relief and that it denied Wilder's petition. The trial court did not enter any findings of fact or conclusions of law thereon in support of either ruling. On January 21, 2022, Wilder filed a motion to correct error which the trial court did not rule upon.
[¶10] Wilder now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Nature of Wilder's Petition for Relief
[¶11] Wilder first challenges the trial court's treatment of his petition as a petition for post-conviction relief and not as one for habeas corpus relief. We examine a trial court's habeas decision for an abuse of discretion. Hardley v. State, 893 N.E.2d 740, 742 (Ind.Ct.App. 2008). In addition, Wilder's motion to correct error raising this issue was deemed denied after it was not ruled upon in forty-five days. Ind. Trial Rule 53.3(A). We review the trial court's denial of a motion to correct error also for an abuse of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).
[¶12] 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 is to bring the person in custody before a court for inquiry into the cause of the restraint. Martin v. State, 901 N.E.2d 645, 647 (Ind.Ct.App. 2009). "One is entitled to habeas corpus only if he is entitled to his immediate release from unlawful custody." Hawkins v. Jenkins, 374 N.E.2d 496, 498 (Ind. 1978). A petitioner may not pursue a writ of habeas corpus to attack his conviction or his sentence. Id. If a petitioner has improperly filed a habeas petition, the "proper remedy for that dilemma [is] for the trial court to recognize substance over form and treat the petition as one for post-conviction relief, based on the content of the petition, rather than the caption." Hardley, 893 N.E.2d at 743 (quotation omitted); see also Parker v. State, 822 N.E.2d 285, 286 (Ind.Ct.App. 2005) (recognizing that, even though Indiana Post-Conviction Relief Rule 1(c) provides that the rules do not suspend the writ of habeas corpus, a trial court shall treat a habeas petition attacking the validity of a sentence as a petition for post-conviction relief).
[¶13] Here, although Wilder alleged in his petition that he was being held on an unlawful parole hold and was entitled to immediate release, the basis for those allegations was that in 2012 the Miami County trial court judge had illegally and unconstitutionally ordered the sequence of the service of the sentence for Cause -1125 and his probation revocation sanction in Cause -67. Wilder did not allege that he was being held unlawfully under a sequence of sentences that were properly imposed. Cf., Hinkle v. Dowd, 58 N.E.2d 342 (Ind. 1944) (observing that Hinkle properly pursued a writ of habeas corpus because he recognized the validity of the judgment but insisted that he had served the time imposed thereby and did not allege error in the trial court). Rather, this was a challenge to the validity of Wilder's probation revocation sanction in Cause -67 that was not properly brought as a petition for writ of habeas corpus. See Hawkins, 374 N.E.2d at 498. Therefore, the trial court deployed the correct remedy by considering Wilder's petition as a request for post-conviction relief, and we find no abuse of the trial court's discretion in dismissing Wilder's petition for writ of habeas corpus or in denying his motion to correct error. See Hardley, 893 N.E.2d at 743 ; Booher, 773 N.E.2d at 817.
II. Denial of Relief
[¶14] Wilder also argues that the trial court erred in denying his petition as a petition for post-conviction relief. Wilder challenges both the style and the substance of the judgment, as he contends that the trial court erred when it denied his petition without entering findings of fact and conclusions of law thereon and that its determination was contrary to law. Wilder filed a motion for summary judgment on his petition. In addition, the Parole Board filed a motion to dismiss that included "matters outside the pleadings" which necessitated that the motion be "treated as one for summary judgment and disposed of as provided in Rule 56." T.R. 12(B). Therefore, we will review the trial court's order as one denying summary judgment to Wilder and granting it to the Parole Board. Summary judgment is appropriate if the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.R. 56(C). We review both the grant or denial of summary judgment de novo and apply the same standard as the trial court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind.Ct.App. 2015). Matters of statutory interpretation present pure questions of law which are particularly appropriate for summary judgment. City of Gary v. Nicholson, 181 N.E.3d 390, 399 (Ind.Ct.App. 2021).
[¶15] We first address Wilder's implications throughout his argument that the trial court erred in not entering findings of fact and conclusions of law thereon in support of its judgment. However, in Richardson v. Citizens Gas & Coke Util., 422 N.E.2d 704, 713 (Ind.Ct.App. 1981), we held that "where a trial court disposes of all issues and claims in a case by entering summary judgment in favor of one of the parties, the court is not obligated to make findings of fact and conclusions of law on such issues and claims upon which the summary judgment was granted." Here, the trial court did not enter partial summary judgment, so its obligation to provide the basis for its decision was not triggered. We also observe that, even if the trial court had entered special findings and conclusions in support of its judgment, we would not be bound by them. See AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind.Ct.App. 2004) (holding that, while special findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review, they are not required or binding). We find no error in the form of the trial court's judgment.
[¶16] As to the substance of the trial court's judgment, we find no error there either. As a general rule, the potential relief in a post-conviction proceeding "is limited in scope to issues unknown at trial or unavailable on direct appeal." Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). "Issues available on direct appeal but not raised are waived[.]" Id. We have previously concluded that the basis for Wilder's arguments is a challenge to the imposition of his probation revocation sanction in Cause -67, a judgment that was entered in 2012. This was an issue which was available to Wilder to directly appeal, but he did not. Normally, we would conclude that Wilder had waived his claim. However, Wilder correctly argues in his reply that the Parole Board did not plead waiver in the trial court proceedings, thus waiving that affirmative defense for appeal. See Bunch v. State, 778 N.E.2d 1285, 1288 (Ind. 2002) (acknowledging the application of the Trial Rules to post-conviction proceedings and that failure to plead an affirmative defense results in waiver). Therefore, we address the merits of Wilder's claim.
[¶17] Wilder based his arguments on Indiana Code section 35-50-1-2(d)(1), which in 2012, the year the challenged ten-year probation revocation sanction was imposed in Cause -67, provided as follows:
This provision is now codified as Indiana Code section 35-50-1-2(e).
If, after being arrested for one (1) crime, a person commits another crime . . . 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.
When a sentencing statute is clear and unambiguous, we give effect to its plain and ordinary meaning. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015). It is also a cardinal rule of statutory construction that we are mindful of both what a statute says and what it does not say. ESPN, Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192, 1195 (Ind. 2016).
[¶18] With these principles in mind, we conclude that the plain language of the statute cited by Wilder requires a trial court to impose a consecutive sentence for a new offense committed while a defendant is still on probation, but it does not contain any mandate regarding the order a defendant must serve the consecutive sentence for the new offense vis-à-vis a probation revocation sanction. Wilder failed to present the trial court, or this court, with any legal authority that directly supports his proposition that the trial court was required to order him to first serve his probation revocation in Cause -67, which was imposed after the sentence in Cause -1125, and we are aware of none. The Miami County trial court did not contravene the statute cited by Wilder when it ordered Wilder to serve his sentence in Cause -1125 before he served his probation revocation sanction in Cause -67. Accordingly, we conclude that the trial court did not err when it denied Wilder summary judgment and granted it to the Parole Board.
Given our disposition, we do not address Wilder's claim that the ordering of his sentences violated the separation of powers doctrine. We also decline to address Wilder's claim, raised for the first time in his reply, that his sentences were in contravention to a purported plea agreement between him and the State. See Ind. Appellate Rule 46(C) ("No new issues shall be raised in the reply brief.").
CONCLUSION
[¶19] Based on the foregoing, we conclude that the trial court did not err when it dismissed Wilder's petition for habeas relief, treated the petition as one for post-conviction relief, summarily denied Wilder relief, and entered judgment in favor of the Parole Board.
[¶20] Affirmed.
[¶21] May, J. and Tavitas, J. concur