noncompliance with Appellate Rules results in waiver
How later courts described this case
- noncompliance with Appellate Rules results in waiver
- “In our view, the rule set forth in Meeker does not mean that a ‘turn over’ will always effect a discharge.”
- petitioner presented no evidence that Parole Board discharged or “turned over” the sentence
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Aug 23 2017, 7:32 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Raphael D. Driver Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raphael D. Driver, August 23, 2017
Appellant-Petitioner, Court of Appeals Case No.
71A03-1605-PC-1018
v. Appeal from the
St. Joseph Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Steven L. Hostetler, Special Judge
Trial Court Cause No.
71D03-0104-CF-146
Kirsch, Judge.
[1] Following the revocation of his parole, Raphael D. Driver (“Driver”) filed, pro
se, several motions, including a Motion for Certificate of Discharge. Treating
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his motions as seeking post-conviction relief, the post-conviction court denied
Driver’s motions. He now appeals and raises six issues, which we consolidate
and restate as follows:
I. Whether the post-conviction court erred when it determined
that Driver was on parole on October 31, 2014, when the parole
violation was filed;
II. Whether the post-conviction court erred when it determined
that requiring Driver to wear a GPS electronic monitoring system
as a condition of parole did not violate ex post facto laws; and
III. Whether the post-conviction court addressed in its order
Driver’s pending motion concerning credit time.
[2] We affirm in part and remand in part.
Facts and Procedural History
[3] Following a guilty plea, the trial court sentenced Driver on December 14, 2001,
to twenty years for Class A felony criminal deviate conduct and six years for
Class B felony robbery under Cause Number 71D03-0104-CF-146 (“Cause
146”). Appellant’s App. Vol. 2 at 13. The sentences were to be served
concurrently, and Driver received 244 days of jail time credit. On April 13,
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2007, the six-year robbery sentence expired, but Driver was still serving his
twenty-year sentence for his criminal deviate conduct conviction.1
[4] While still incarcerated on the criminal deviate conduct sentence, Driver
pleaded guilty in Sullivan County to Class C felony prisoner in possession of a
dangerous device or material under Cause Number 77D01-0606-FC-37 (“Cause
37” or “the Sullivan County conviction”). Driver was sentenced on June 27,
2007 to four years, with two years suspended, to be served consecutive to Cause
146.
[5] After consideration of various losses of credit time and demotion in credit class
for disciplinary violations, Driver became eligible for parole on the twenty-year
sentence beginning on August 10, 2013. He was not physically released from
the Indiana Department of Correction (“DOC”), however, because, on August
11, 2013, Driver began serving the consecutive sentence for his Sullivan County
conviction.
[6] Driver believed that, as of August 11, 2013, he (1) was “turned over” to serve
the Sullivan County conviction and was thereby effectively discharged from the
criminal deviate conduct conviction and the associated parole, and (2) was
statutorily entitled to a Certificate of Discharge from DOC. Therefore, he
contacted various people including the Release Coordinator at the Westville
1
According to DOC documents, Driver’s maximum release date on the criminal deviate conduct conviction
is April 14, 2021. Appellant’s App. Vol. 3 at 59, 68-69.
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Correctional Facility and the Indian Parole Commission, through Parole Agent
Joshua Brooks (“Agent Brooks”) at the St. Joseph County Parole Office
Division #8, and the Clerk of the St. Joseph County Superior Court.
[7] Driver was released from DOC incarceration on October 30, 2014, but his
request for a certificate of discharge was not resolved prior to that time. Driver
was transported by DOC to the St. Joseph County Parole Division #8 in South
Bend, Indiana, with regard to his parole on his criminal deviate conduct
conviction, which, the State asserts, had begun on August 10, 2013.2 At the
parole department, Driver was presented with, among other things, a Parole
Stipulations for Sex Offender, SOMM Waiver Agreement, Conditional Parole
Release Agreement, and GPS Offender Agreement, but he refused to sign the
documents on the basis that his parole was discharged on August 11, 2013.
One of the parole conditions was that Driver not be within 1,000 feet of a
school or park. Driver was placed on GPS electronic monitoring, even though
he objected to it on the basis that it was illegal, unconstitutional, and violated
ex post facto laws. Appellant’s App. Vol. 3 at 101.
[8] One day after release from DOC, Agent Brooks contacted Driver and ordered
him back to Parole Division #8, where Driver was served a notice of parole
2
Although there had been some dispute or disagreement regarding the length of parole, the record before us
indicates that the parties agree that Driver was subject to parole for a period of twenty-four months. Tr. at
15-16 (Driver stating that parole agents told him two years, and State’s attorney agreeing he was obligated to
a period of two years of parole); Appellant’s App. Vol. 2 at 106 (Declaration of Farmer stating that Driver was
obligated to two years of parole).
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violations, alleging that (1) he violated the 1,000-foot restriction rule because on
the evening of October 30 and through the morning of October 31, Driver was
for a number of hours at a home located 180 feet from a park and that he also
went directly into another park, and (2) he failed to follow the parole agents’
instructions by refusing to sign the parole forms, and when the forms were read
to Driver, he “at several points [] laughed at the rules.” Appellant’s App. Vol. 2 at
140. Driver was taken into custody; at the time that the warrant was served,
Driver had served 447 days on parole status, from August 10, 2013 to October
31, 2014. Driver attended the December 2, 2014 Parole Board hearing via
video conference, and the Parole Board found him guilty of the alleged
violations and revoked his parole. Id. at 150.
[9] On December 23, 2014, Driver filed a Motion to Modify Sentence regarding
“jail earned credit.” See id. at 5 (CCS entry reflecting filing of motion). On
January 20, 2015, Driver filed a Motion for Certificate of Discharge (“Motion
for Discharge”), alleging that he completed his sentence for criminal deviate
conduct on August 10, 2013, and at that time he was “turned over” to serve the
sentence on the Sullivan County conviction, which “‘effectively’ discharge[ed]”
the criminal deviate conduct cause, and that therefore he was not on parole on
October 31, 2014, when he was alleged to have violated parole. Appellant’s App.
Vol. 3 at 94. Along with his Motion for Discharge, Driver filed an Order to
Show Cause and Temporary Restraining Order, an Affidavit in Support of
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Motion to Show Cause and Temporary Restraining Order, and a Memorandum
in Support of Restraining Order.3
[10] On February 6, 2015, in response to Driver’s inquiries and request for an
interview regarding his parole in Cause 146, DOC Release Specialist Jennifer
Lee Farmer (“Farmer”) sent a memorandum or letter to Driver, which
explained:
Your sentences ([Cause 146] & [Cause 37]) were ordered to run
consecutive to one another. This means that you did complete
[Cause 146] on 08-10-2013; however, your time then turned over
and you started serving your time on [Cause 37]. You were
actually serving Parole time; however, you do not get 2 for 1 for
time served on Parole while serving a consecutive sentence. You
only get CC3 time. At the time of Parole on [Cause 146], you
had 2803 days that you were still responsible for. These are the
days that you did NOT serve physically.
Id. at 40 (emphasis added).4
[11] The post-conviction court held a hearing on December 15, 2015 on “a variety of
filings by Mr. Driver,” including his Motion for Discharge and related
pleadings, and an earlier-filed motion “claiming he did not get his . . . credit
3
We note that the CCS indicates that the State, not Driver, filed a motion for order to show cause and
temporary restraining order. Appellant’s App. Vol. 2 at 5. It is not clear if this was meant to reflect Driver’s
filing or if the State filed its own motion for order to show cause and temporary restraining order.
4
We note that Farmer’s memorandum contained a scrivener’s error, by stating Cause number “71D03 0104
CR 00146” in two places where she intended to state Cause No. “71D01 0606 FC 00037.” She corrected that
error by a Declaration, which the State submitted as evidence, over Driver’s objection, at the December 2015
hearing. See Appellant’s App. Vol. 2 at 105 (Declaration of Jennifer Farmer, submitted as Exhibit A to State’s
Supplemental Response to Motion for Discharge).
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time when he was in jail[.]”5 Tr. at 3. The court received argument from
Driver regarding the jail time credit and took the matter under advisement.
Next, the court addressed the Motion for Discharge, and Driver testified in
support of his arguments that he “was never properly placed on parole,”
because (1) he was told that he was “turned over” to serve the consecutive
sentence for his Sullivan County conviction and was thereby “effectively
discharged, and (2) he did not receive statutory advisements and conditions of
parole until after he was released from incarceration in October 2014. Id. at 23,
29. Driver contended that, because he was not on parole, he, therefore, “did
not violate any parole.” Id. at 26, 39. In support of its position that the Parole
Board did not turn over or discharge Driver, that he was on parole when he was
released from DOC on October 30, 2014, and that he violated parole, the State
elected to rest on the arguments, authority, and exhibits previously provided in
its Response and Supplemental Response to Driver’s motions. During the
5
We note that, on December 14, 2015, one day prior to the hearing, the State filed a Supplemental Response
to Driver’s Motion for Discharge. At the hearing, Driver objected to the filing of the Supplemental
Response, which among other things included as an exhibit the Declaration of Jennifer Farmer. Although
the State had served Driver by mail as required, it also presented him at the hearing with a copy of the filing
and attachments, and the post-conviction court recessed to allow Driver time to review the contents. Driver
filed a written objection to the Supplemental Response on February 22, 2016, asking the court to strike it, and
the State thereafter filed a response in opposition to Driver’s objection. The post-conviction court referred to
and relied upon the State’s Supplemental Response in its Findings of Fact and Conclusions of Law and
Order. Driver asserts on appeal that it was error for the post-conviction court to allow the Supplemental
Response. The Post-Conviction Rules state, with respect to pleadings, that the court may make appropriate
orders for an amendment either to the petition or the answer, for filing further pleadings or motions, or for
extending the amount of time allowed for any pleading. Ind. Post-Conviction Rule 4. Moreover, Post-
Conviction Rule 5 allows the court to accept, up through the date of the hearing itself, any affidavits,
depositions, testimony, or other evidence. Driver has failed to establish error with regard to the post-
conviction court’s rejection of his request to strike the Supplemental Response.
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course of the hearing, the trial court advised the parties that it considered
Driver’s Motion for Discharge and related motions, collectively, as seeking
post-conviction relief, and neither party objected to this treatment of the
motions. Id. at 37-39.
[12] Subsequently, the parties each submitted proposed findings of fact and
conclusions of law, and, on February 29, 2016, the post-conviction court issued
its Findings of Fact, Conclusions of Law, and Order (“Order”). The Order
reflected that the court construed Driver’s various requests for relief as a
petition for post-conviction relief, and applying the post-conviction standards,
the court denied relief to Driver. Its conclusions of law included:
3. Driver’s claim that the Parole Board used the term “turn over”
when he began serving his Sullivan County sentence on August
11, 2013 is unsupported by the evidence. Driver’s situation is not
the same as that in [] Meeker v. Ind. Parole Bd., 794 N.E.2d 1105
(Ind. Ct. App. 2003). Accordingly, Driver’s twenty-year sentence
for Criminal Deviate Conduct imposed by the St. Joseph
Superior Court was not discharged. Thus, at the time of his
parole violation, Driver was still properly on parole under the
sentence this Court imposed on December 14, 2001. That
sentence was not set to expire until April of 2021. See Ind. Code
§ 35-50-6-1 (2000).
4. Since Driver’s parole was revoked on or about October 31,
2014, the applicable parole statute requires that he serve the
remainder of his fixed term, less credit time earned. Ind. Code §
35-50-6-l(c) (2000). This results in a projected release date of
January 20, 2018.
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5. Only if Driver is incarcerated until January 20, 2018, or the
Parole Board grants reinstatement, can Driver be released to
parole. Neither of those circumstances has occurred.
6. The Court thus determines that Driver is properly detained by
the Indiana Department of Correction [(“DOC”)].
7. Likewise, Driver’s claim that the parole requirement of a GPS
monitoring system was a violation of the ex post facto clause of
the Indiana Constitution is without merit. The statute in force at
the time of Driver’s offense provided the Parole Board with the
authority to set the terms of an offender’s parole so long as the
condition is reasonably related to the parolee’s successful
re-integration into the community and is not unduly restrictive of
a fundamental right. Ind. Code § 11-13-3-4 (1998). Here, the use
of a GPS monitoring system is reasonably related to Driver’s re-
integration into society and is not unduly restrictive of a
fundamental right. As such, it does not violate the ex post facto
provision of the Indiana Constitution. Indeed, it is a measure to
protect society.
8. The claim that Driver did not violate the terms of his parole is
not viable. As a condition of his parole, Driver was required to
not be within 1000 feet of a park. Yet, the GPS monitoring
system showed that Driver was within 1000 feet of Veteran’s
Memorial Park, a clear violation of his parole. The Parole Board
confirmed this violation. (State’s December 14, 2015
Supplemental Response, Exhibits H & I).
Driver now appeals.
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Discussion and Decision
[13] Indiana Post-Conviction Rule 1(1)(a)(5) provides, “A person who has been
convicted of, or sentenced for, a crime by a court of this state, and who claims .
. . that his sentence has expired, his probation, parole or conditional release
unlawfully revoked, or he is otherwise unlawfully held in custody or other
restraint . . . may institute at any time a proceeding under this Rule to secure
relief.”6 The petitioner bears the burden of establishing his grounds for post-
conviction relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Fisher v. State, 810 N.E.2d 674, 679
(Ind. 2004). On review, we will not reverse the judgment unless the evidence as
a whole unerringly and unmistakably leads to a conclusion opposite that
reached by the post-conviction court. Id. Further, the post-conviction court in
this case entered findings of fact and conclusions thereon in accordance with
Indiana Post-Conviction Rule 1(6). “A post-conviction court’s findings and
6
In Mills v. State, 840 N.E.2d 354, 357 (Ind. Ct. App. 2007), the trial court treated the defendant’s petition for
writ of habeas corpus relief as a petition for post-conviction relief. On appeal, this court observed, “Because
Mills alleged that he was entitled to immediate release, it appears that the habeas corpus statutes are
applicable. However, because Mills alleges that his parole was unlawfully revoked, it appears that he could
have also filed for relief under the post-conviction rules.” Id. Observing that neither party claimed on appeal
that it was error to treat the writ of habeas corpus as a petition for post-conviction relief, the Mills court
proceeded to address the merits of the defendant’s claim. Likewise, neither party in the present case alleges it
was error to treat Driver’s Motion for Discharge and related pleadings as seeking post-conviction relief, and
we review the appealed decision accordingly. We further note that although Driver is proceeding pro se, such
litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v.
State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
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judgment will be reversed only upon a showing of clear error—that which
leaves us with a definite and firm conviction that a mistake has been made.” Id.
We accept findings of fact unless clearly erroneous, but we accord no deference
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
I. Status of Parole in August 2013
[14] The post-conviction court found that Driver became eligible for, and was placed
on, parole on August 10, 2013, although he remained incarcerated at that time
because on August 11, 2013, he began serving the consecutive sentence for his
Sullivan County conviction. Driver asserts that he was not placed on parole on
August 10, 2013 and, rather, was discharged from parole at that time. Thus, he
claims, he was not on parole as of October 31, 2014, when he was alleged to
have violated parole, and because he was not on parole, he could not have
violated parole. He raises, principally, two arguments, and we address each in
turn.
A. “Turned Over”
[15] Driver claims that he completed his sentences on robbery and criminal deviate
conduct convictions on August 10, 2013, and was at that time “turned over” to
serve the consecutive sentence for his Sullivan County conviction, which, he
claims, effectively discharged him from parole. For the proposition that he was
“turned over,” Driver relies on the February 2015 memorandum from Farmer,
a DOC Release Specialist. The memorandum stated in part:
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Your sentences ([Cause 146] & [Cause 37]) were ordered to run
consecutive to one another. This means that you did complete
[Cause 146] on 08-10-2013; however, your time then turned over
and you started serving your time on [Cause 37].
Appellant’s App. Vol. 3 at 40. Driver’s position is that when a defendant is
“turned over,” he is thereby discharged from parole, and because he was
discharged from parole, he could not be guilty of any subsequent alleged
violations in October 2014.
[16] In support, Driver refers us to Meeker v. Indiana Parole Board, 794 N.E.2d 1005
(Ind. Ct. App. 2004), trans denied, where the defendant was ordered to serve two
concurrent sentences for drug dealing in 1991. 794 N.E.2d at 1106. In 1995,
Meeker was released on parole. Approximately one year later, Meeker’s parole
was revoked after he was convicted of several alcohol-related offenses, and he
was ordered to serve the balance of the two sentences for drug dealing. In 1998,
the Parole Board decided Meeker should be “turned over to another
commitment” to serve the sentences on the alcohol-related offenses. Id. at
1107. In 2000, Meeker was released on parole again. The 1991 convictions
were used as the basis of the parole. In 2001, the Parole Board again revoked
Meeker's parole and reinstated the remaining sentences on the 1991 dealing
convictions.
[17] Meeker appealed, and this court determined that the Parole Board’s “turn over”
amounted to a discharge from his dealing sentence and that Meeker could not
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again be required to serve the remainder of that sentence at a later time. Id. at
1108-09. Specifically, the Meeker court observed,
When the parole board “turned over” Meeker to begin serving
the alcohol related sentences, it effectively discharged him from
the remainder of the dealing convictions. There is no statutory
authority or case law definition of “turn over” and we conclude
that we must construe the phrase against the State. During the
1998 review, the parole board could have refused to “turn over”
Meeker's sentence, as it had done in 1997, until he served the
remainder of his fixed term. The parole board did not do so, and
the State provides no support for its contention that Meeker
could again be required to serve the remainder of his dealing
sentence at some later date.
Id. at 1109.
[18] A number of subsequent cases, however, “have distinguished Meeker and have
significantly limited its reach.” Baldi v. State, 908 N.E.2d 639, 642 (Ind. Ct.
App. 2009). For instance, in State v. Metcalf, 852 N.E.2d 585, 588-89 (Ind. Ct.
App. 2006), trans. denied, this court considered Meeker and clarified that the
language “turned over” does not always mean “discharged.” Id. at 589 (“In our
view, the rule set forth in Meeker does not mean that a ‘turn over’ will always
effect a discharge.”).7 The relevant inquiry is whether the Parole Board took
action to discharge or “turn over” a sentence.
7
In Metcalf, the Parole Board’s voting sheet reflected that Metcalf was granted a “turnover,” but also
included the phrases “preserve life sentence” and “will go back on life sentence” on the forms in the
“comments” section. 852 N.E.2d 585, 586 (Ind. Ct. App. 2006), trans. denied. The Metcalf court concluded
that the Parole Board used language to describe its intent when it “turned over” Metcalf’s sentence, and that
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[19] Driver’s case is much more similar to the situation presented in Hannis v. Deuth,
816 N.E.2d 872 (Ind. Ct. App. 2004), in which the defendant was sentenced in
1996 to eight years on one conviction and to two years each on several other
convictions. The trial court ordered the two-year sentences to run concurrent
with one another but consecutive to the eight-year sentence. Id. at 873-874. In
November 1999, DOC noted in a “Commitment Change” document that
Hannis “was turn[ed] over to new commitment,” and he began serving the two-
year sentences. Id. at 874. In August 2000, Hannis was released to parole with
a maximum expiration of sentence date of November 22, 2001. Id. In March
2001, a parole violation warrant was issued because he had been arrested for
possession of marijuana. On May 17, 2001, the parole board revoked his
probation and reinstated the remainder of the eight-year sentence. Id.
[20] On appeal, Hannis argued that his eight-year sentence was discharged in
November 1999, when DOC “turn[ed] him over,” but the Hannis court
distinguished Meeker on the ground that, while Meeker was effectively
discharged when the Parole Board “turned over” Meeker from the dealing
convictions to the new convictions, in Hannis’s case, the only evidence of a
“turn over” was a document prepared by DOC. Id. at 879. That is, there was
no evidence that the Parole Board discharged his sentence as required by Indiana
language indicated the Board’s intent not to discharge Metcalf from the originally-imposed life sentence. Id.
at 590.
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Code section 35-50-6-1(b).8 The Hannis court affirmed the trial court’s denial of
relief. Id. at 880. Like Hannis, there is no evidence here that the Parole Board
discharged, or even “turned over,” Driver’s sentence. See also Parker v. State,
822 N.E.2d 285, 287-88 (Ind. Ct. App. 2005) (petitioner presented no evidence
that Parole Board discharged or “turned over” the sentence).
[21] Driver’s situation is also similar to that in Mills v. State, 840 N.E.2d 354, 359
(Ind. Ct. App. 2006), where the defendant, like Driver, claimed his parole was
unlawfully revoked because he was not on parole at the time he committed a
parole violation. Mills was granted parole on an eight-year burglary sentence
and immediately began serving a one-year consecutive sentence for failure to
appear. Shortly after Mills was released from incarceration for the failure to
appear sentence, he was arrested for battery on a health care worker. Based on
the commission of the battery and other subsequent parole violations, the
Parole Board revoked Mills’s parole. Id. at 354-55.
[22] As does Driver, Mills argued under Meeker that his burglary conviction was
discharged when he was “turned over” to serve his consecutive sentence for
failure to appear. Id. at 358. The Mills court found that “[u]nlike Meeker, Mills
presented no evidence that the [Parole] Board took action to discharge or ‘turn
over’ his burglary sentence” and that Mills “served part of his parole on the
burglary conviction while he served the consecutive sentence for the failure to
8
The Hannis court also distinguished Meeker on the ground that Meeker dealt with two unrelated convictions,
not a single judgment. 816 N.E.2d 872, 879 (Ind. Ct. App. 2004).
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appear conviction.” Id. at 358, 360. The same is true here. Driver’s parole for
the criminal deviate conduct conviction was not suspended, held in abeyance,
or “turned over.” Instead, he served part of his parole on the criminal deviate
conduct conviction while he served the consecutive sentence out of Sullivan
County.
[23] As in Hannis and Mills, there is no evidence that the Parole Board intended to
and did discharge Driver in 2013. To the extent that Farmer’s 2015 response
used the words “turned over,” she was a DOC Release Specialist, and her
statement is not the equivalent of a decision by the Parole Board to discharge
Driver. See Hannis, 816 N.E.2d at 879. Moreover, her February 2015
memorandum expressly told Driver that, when he began serving the
consecutive Sullivan County sentence in August 2013, “you were actually on
parole[.]” Appellant’s App. Vol. 3 at 40. Additionally, other evidence presented
at the December 2015 hearing on Driver’s motions showed that, when Driver
was released from incarceration in October 2014, he was advised that he was
subject to “Dual Supervision,” for probation and parole. Appellant’s App. Vol. 2
at 125.
[24] Driver has failed to show that the post-conviction court erred when it rejected
his claim that he was effectively discharged from parole on August 10, 2013 and
determined that he was still on parole on October 30, 2014, when he was
discharged from DOC and alleged to have violated parole.
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B. Notice of Parole
[25] Driver next urges that on August 10, 2013 he did not receive statutorily-
required advisements and conditions of parole, and therefore, he was not
actually placed on parole, and because he was not on parole, he did not violate
it. Driver is correct that certain advisements, notices, and services are required
under Indiana statutes. For instance, Indiana Code section 11-13-3-3 requires
that a victim or a witness be notified when a defendant is going to be released
on parole, and Indiana Code section 11-13-3-4(c) provides, in part, that “if a
person is released on parole, the parolee shall be given a written statement of
the conditions of parole” and requires that signed copies of the statement are to
be retained by the parolee and given to the person charged with the parolee’s
supervision. Another statute, Indiana Code section 11-13-3-6(a), directs that
“the department shall supervise and assist persons on parole[,]” including
assisting persons in preparing release plans, providing employment counseling
and assistance with job and residential placement, providing financial
counseling, as well as vocational and educational counseling and placement.
[26] On appeal, Driver argues, “Under the rel[e]v[a]nt portions of the Indiana
Code[,] the Department of Correction and the Indiana Parole Board had a duty
to notify Driver of his parole status[,] advise Driver of any agreement of parole
or parole stipulations or modifications[,] provide Driver with pre-parole
counseling (through the [DOC]’s “'RE-entry” program)[,] have a parole plan
constructed by the Department[,] including housing[,] residential placement
and employment assistance.” Appellant’s Br. at 23. Driver does not dispute that
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he received the required advisements in October 2014; rather, the crux of his
claim is that he should have received them in August 2013.
[27] Driver provides no authority, however, for his position that any statements,
notices, advisements, and services were required in August 2013, when he was
placed on parole but not physically released from DOC custody, and, rather,
remained incarcerated until October 2014. Indeed, as Driver acknowledges,
“[T]he parole statutes makes no specific provision for dealing with consecutive
sentences.” Hannis, 816 N.E.2d at 877. However, even if, as Driver claims, the
statutory advisements should have been provided to Driver in August 2013, he
provides no authority for the proposition that any such failure to provide the
information in August 2013 automatically discharged him from his parole
obligations. Furthermore, we have recognized that “[w]here the purpose and
intent of a statutory mandate are satisfied, this court will not reverse for mere
technical procedural errors unless the defendant can show that he was harmed
or prejudiced by such errors.” Komyatti v. State, 931 N.E.2d 411, 416 (Ind. Ct.
App. 2010) (quoting Kindred v. State, 173 Ind. App. 624, 629, 365 N.E.2d 776,
779 (1977)) (rejecting parolee’s claim that due process was violated where
Parole Board did not provide him, after preliminary hearing, with written
findings and statement of evidence relied upon in finding probable cause that he
violated parole, because he showed no prejudice). Here, Driver has shown no
prejudice from not receiving the advisements or conditions until his physical
release from DOC custody on October 30, 2014. Accordingly, we find that
Driver has not shown that the evidence leads unerringly and unmistakably to a
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decision opposite that reached by the post-conviction court, and we conclude
that the post-conviction court’s findings of fact and conclusions thereon denying
Driver’s Motion for Discharge and related pleadings are not clearly erroneous.
II. GPS Monitoring
[28] Driver claims that requiring him to wear GPS electronic monitoring as a
condition of parole violated the federal and state prohibition against ex post
facto laws. See U.S. Const., Art. I, § 10; Ind. Const. Art. I, § 24. Among other
things, “[t]he ex post facto prohibition forbids the Congress and the States to
enact any law ‘which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment to
that then prescribed.’” Hevner v. State, 919 N.E.2d 109, 111 (Ind. 2010) (quoting
Weaver v. Graham, 450 U.S. 24, 28 (1981)). Driver argues that at the time he
was charged and sentenced in 2001, GPS monitoring did not exist and was not
available, and therefore, his violation of parole, which was based on his
location as determined by GPS, was illegal. The post-conviction court
determined that his argument was without merit, and so do we.
[29] Indiana Code section 11-13-3-4 outlines various permitted conditions of parole,
including requiring a parolee who is a sex or violent offender to wear a
monitoring device. Ind. Code § 11-13-3-4(j). The section further provides that
the Parole Board may adopt additional conditions as long as the conditions are
reasonably related to the parolee’s successful integration into the community
and is not unduly restrictive of a fundamental right. Ind. Code § 11-13-3-4(b);
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Weiss v. Ind. Parole Bd., 838 N.E.2d 1048, 1051 (Ind. Ct. App. 2005), trans.
denied. The additional condition may include sex offender conditions, even if
the parolee has not been convicted of a sex offender crime. Weiss, 838 N.E.2d
at 1052.
[30] Here, Driver was convicted of, and on parole for, criminal deviate conduct, a
sex offense, and thus qualified for sex offender treatment by the Parole Board.
We find unpersuasive Driver’s arguments that GPS monitoring “had the effect
of adding punishment beyond that which could have been imposed when the
crime was committed” because the monitoring “make[s] every day commutes
extremely difficult,” requires him “to spend significant time maintaining battery
charge, function and overall maintenance of the GPS device” and subjects him
to “the stigma of wearing the device in public.” Appellant’s Br. at 31, 33.
Rather, GPS monitoring does not affect a fundamental right, is reasonably
related to his successful reintegration into society, and is a reasonable condition
to prevent commission of sex offenses, as it allows parole officers to track a
defendant’s whereabouts to ensure that he or she is not within 1,000 feet of a
park or other location that is off limits to sex offenders. Accordingly, there was
no constitutional violation for requiring Driver to be subject to GPS monitoring
as a condition of parole or for revoking his parole based on the information
received from it.9
9
As a separate, but we find related, issue, Driver asserts that the post-conviction court erred when it
determined that “Driver did violate the terms of his parole and is properly detained.” Appellant’s Br. at 34.
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III. Credit Time
[31] The post- conviction court began the December 15, 2015 hearing by
recognizing that the parties were present for a hearing “on a variety of filings
made by Mr. Driver[,]” which the court summarized into two categories: (1)
the Motion for Discharge and related filings, filed January 20, 2015, and (2)
Verified Motion for Jail Credit and Good Time Allowance (“Motion for Jail
Credit”), filed December 23, 2014.10 Tr. at 3.
[32] The post-conviction court began the hearing by addressing the Motion for Jail
Credit, noting that the trial court judge who sentenced Driver in 200111 had
recognized 244 days of pre-sentence jail time credit and that, consistent with
that, a recently-received calculation from the St. Joseph probation department
His position is based, in part, on the GPS monitoring not being a proper condition of parole, which claim we
have already rejected in this decision. He also challenges the GPS evidence presented at the December 2014
parole hearing, specifically the house number and location of the home where monitoring indicated that he
was located, asserting that the State “presented no evidence of Driver’s alleged parole violation other than an
unsubstantiated statement from parole agents.” Id. at 38. We consider only the evidence most favorable to
the revocation and will not reweigh the evidence or judge witness credibility on appeal. Komyatti v. State, 931
N.E.2d 411, 419 (Ind. Ct. App. 2010). He also argues that if failure to follow parole agents’ instructions,
including failure to sign the parole agreement was a basis for revocation, “then he should never have been
allowed [to] leave parole district #8 but instead should have been transported to the St. Joseph County jail”
and issued a violation at that time, but instead, he was released on parole so that “the 1,000-ft rule” violation
“could be manufactured by the Parole Board and its agents[.]” Id. at 34-36. His claim that the 1,000-foot
rule violation was “manufactured” is simply a request for us to reweigh the evidence, which, again, we do
not do on appeal. Id.
10
The CCS entry reflects a somewhat different title of the December 23, 2014 filing: “Motion to Modify
Sentence” “FOR JAIL EARNED CREDIT.” Appellant’s App. Vol. 2 at 5.
11
We note that, prior to the December 2015 hearing, the Honorable Steven Hostetler was appointed as
Special Judge in this case on November 19, 2015.
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reflected that Driver “did in fact receive the 244 days for which he was entitled
to credit.” Id. at 4. Driver’s argument to the post-conviction court was that he
was entitled to 488 days “because I was earning credit time.” Id. The State
did not present any argument or evidence on the issue, and the post-conviction
court stated, “The Court will take the matter under advisement, and will issue
a ruling on that issue.” Id. at 5. Later, at the conclusion of the hearing, while
the court discussed having the parties tender specific findings of fact to the
court, it noted, “I don’t think we need those with respect to the December 23
verified motion for jail credit and goodtime allowance. . . . I can rule on that,
because I don’t need findings [o]n that.” Id. at 55-56.
[33] On appeal, Driver claims that the post-conviction court’s Order failed to rule
on the Motion for Jail Credit. Initially, we observe that Driver did not include
the Motion for Jail Credit in his Appendix, and it is not otherwise included in
the record before us, as required by Indiana Appellate Rule 50(A). 12 The State
asserts, correctly, that Driver has thus waived his claim for review. See In re
Garrard, 985 N.E.2d 1097, 1104-05 (Ind. Ct. App. 2013) (noncompliance with
Appellate Rules results in waiver), trans. denied.
12
Pursuant to Appellate Rule 50(A), the Appellants' Appendix must contain “those parts of the Record on
Appeal that are necessary for the Court to decide the issues presented,” including “pleadings and other
documents from the Clerk’s Record . . . that are necessary for resolution of the issues on appeal.”
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[34] Nevertheless, despite Driver’s failure to include the Motion for Jail Time, we
find that the Transcript provides the general crux of the issue, and thus we
proceed to address the merits of Driver’s claim, which is that the post-
conviction court did not address his motion alleging entitlement to additional
jail time credit. Upon review of the record, we agree with Driver that the
Order did not address it. That is, the introductory paragraphs of the post-
conviction court’s Order, which provide the procedural backdrop for the
forthcoming Findings of Fact and Conclusions of Law, state that on December
15, 2015 the parties came for hearing “on the Motion for Certificate of
Discharge, the Motion for Hearing and the Motion for Order to Show Cause
and TRO, all filed by [Driver] on January 20, 2015[.]” Appellant’s App. Vol. 2
at 16. The approximately eight-page Order makes no mention of the pending
Motion for Jail Credit.
[35] The State urges that, contrary to Driver’s argument, the Order adequately
addressed the Motion for Jail Credit because the Order included the following
statement: “Driver received 244 days of jail time credit.” Id. However, we do
not find that this undisputed statement – that Driver received 244 days of jail
time credit – is the equivalent of a ruling on the issue of whether Driver was or
was not entitled to 488 days, as he claimed. The State also argues that Driver
did not satisfy his post-conviction burden of proof regarding the credit time; by
our decision today we do not express any opinion on whether Driver did or did
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not prove his claim.13 Rather, we remand with instruction for the post-
conviction court to issue a separate ruling on the Motion for Jail Credit, or,
alternatively, to clarify that it intended for its Order to constitute a ruling on
Driver’s pending credit time claim.
[36] Affirmed in part and remanded in part.
[37] Najam, J., and Brown, J., concur.
13
Driver’s assertion appears to be that he was entitled to credit time for the period of time when he was on
parole, but still incarcerated and serving the consecutive Sullivan County sentence. We observe that
Farmer’s Declaration states that “[w]hile an offender is on parole, he does not receive earned credit time for
time served on parole, even if he is still incarcerated due to serving incarcerated time for a different sentence,”
and that Driver did not earn “2 for 1 credit” while he was serving parole beginning on August 10, 2013 and
was at the same time incarcerated on the Sullivan County conviction. Appellant’s App. Vol. 2 at 106.
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