MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 24 2019, 6:58 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Terry J. Morgan Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Natalie F. Weiss
Patricia C. McMath
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry J. Morgan, June 24, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-MI-1762
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela Warner
Appellee-Respondent. Sims, Judge
The Honorable Kevin M. Eads,
Magistrate
Trial Court Cause No.
48C01-1801-MI-14
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 1 of 6
[1] Terry J. Morgan (“Morgan”) appeals the Madison Superior Court’s denial of
his petition for habeas corpus following the Parole Board’s determination that
he had violated his parole.
[2] Morgan presents two issues for our review, which we restate as:
1. Whether the trial court committed error by considering his
petition for habeas corpus as a petition for post-conviction
relief; and,
2. Whether the trial court committed error by granting the
State’s Motion for Summary Disposition.
[3] We affirm.
Facts and Procedural History
[4] In August 2004, Morgan was convicted of Robbery Resulting in Bodily Injury
in Vigo County, Indiana. As a result, he was sentenced to twenty years of
incarceration, with credit time for 192 days served in the Vigo County Jail in
addition to 1:1 good credit time for a total of 384 days. He was mandatorily
paroled on February 16, 2016. A warrant for parole violation was issued four
months later, on June 28, 2019, and served the next day.
[5] On July 6, 2019, Morgan signed a waiver of preliminary hearing and pleaded
guilty to violating two conditions of his parole. He admitted to violating Rule
5B which prohibited “[u]sing, possessing, or trafficking illegally in a controlled
substance” after testing positive for cocaine and marijuana. Appellant’s App. p.
98. He also admitted to violating Rule 10, which provided that he would
Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 2 of 6
“abide by any special conditions imposed by the Indiana Parole Board, which
have been reduced to writing and included as a condition of my parole” when
he failed to report for a substance abuse appointment, complete a substance
abuse evaluation, and attend substance abuse treatment. Id.
[6] After he was re-incarcerated, Morgan filed a habeas petition claiming that he
was unlawfully detained because he was not informed that substance abuse
evaluations and treatment classes were conditions of his parole. The State then
filed a Motion for Summary Disposition, arguing that Morgan’s incarceration
was not unlawful because he pleaded guilty to these parole violations. The trial
court granted the State’s motion on November 16, 2018. Morgan now appeals.
Discussion and Decision
[7] 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 of habeas corpus is
to bring the person in custody before the court for inquiry into the cause of
restraint.” Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980
(Ind. Ct. App. 2001), superseded by statute on other grounds. “One is entitled
to habeas corpus only if he is entitled to his immediate release from unlawful
custody.” Id.
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[8] “While on parole the parolee remains in legal custody because, although parole
is an amelioration of punishment it is, in legal effect, still imprisonment.” Page
v. State, 517 N.E.2d 427, 430 (Ind. Ct. App. 1988), trans. denied.
[9] We review the grant of a motion for summary disposition in post-conviction
proceedings the same way we would a motion for summary judgment. Norris v.
State, 896 N.E.2d 1149, 1151 (Ind. 2008). We review a trial court’s habeas
decision for an abuse of discretion. Benford v. Marvel, 842 N.E.2d 826, 828 (Ind.
Ct. App. 2006). Without reweighing the evidence this court considers only that
evidence most favorable to the judgment and reasonable inferences drawn
therefrom. Id.
[10] Morgan initially argues that it was error for the trial court to consider his
petition as a petition for post-conviction relief as opposed to a petition for
habeas corpus. A petitioner should file a petition for post-conviction relief
instead of a petition for a writ of habeas corpus when he claims his parole was
improperly revoked, unless he is claiming that he is entitled to immediate
release. Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App. 2008); Hale v. Butts,
88 N.E.3d 211, 214 (Ind. Ct. App. 2017). However, “if a petitioner erroneously
captions his action as petition for a writ of habeas corpus rather than post-
conviction relief, courts will frequently and properly treat the petition as one for
post-conviction relief, based on the content of the petition, rather than the
caption. Partlow, 756 N.E.2d at 980 (citing Hawkins v. Jenkins, 374 N.E.2d 496,
498 (Ind. 1978)). Because Morgan asks us to decide the merits of his case, we
need not decide whether the trial court properly determined that Morgan’s
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petition requested post-conviction relief. See Partlow, 756 N.E.2d at 981
(deciding habeas corpus petition on the merits despite trial court’s
misclassification of the petition as one for post-conviction relief). Thus, we
address the merits of the matter.
[11] Morgan argues that he was not provided notice that he was required to attend a
substance abuse evaluation and classes.1 He admits the substance abuse
recommendation “had been verbally communicated to Morgan by his parole
agent.” Appellant’s Br. at 9. He also admits the “agents of Community
Outreach Network Services were attempting to contacting [sic] him[.]”
Appellant’s Br. at 8. Regardless, Morgan signed a waiver of preliminary hearing
in which he pleaded guilty to violations of his parole agreement, including the
violation of which he presently complains he did not have proper notice.
Appellant’s App. p. 99. Because he admitted to the violation of which he
complains he did not have proper notice, in addition to testing positive for
cocaine and marijuana, we find this argument unavailing.
Conclusion
[12] Because Morgan pleaded guilty to both violations of his parole, he is not
unlawfully incarcerated. Additionally, because Morgan asks us to address the
merits of this matter concerning his parole, we consider his pleading as a
1
Morgan also argues that the warrant was issued without probable cause. Notwithstanding the fact that he
tested positive for cocaine and marijuana, he first raises this issue on appeal, and therefore this argument is
waived.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-1762 | June 24, 2019 Page 5 of 6
petition for post-conviction relief. We affirm the trial court’s granting of the
State’s Motion for Summary Disposition.
[13] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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