MEMORANDUM DECISION FILED
09/06/2017, 10:44 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Johnny Ray Jenkins Curtis T. Hill, Jr.
New Castle, IN Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Johnny Ray Jenkins, September 6, 2017
Appellant-Petitioner, Court of Appeals Case No.
33A05-1703-MI-478
v. Appeal from the Henry Circuit
Court 2
Keith Butts, The Honorable Kit C. Dean Crane,
Appellee-Respondent Judge
Trial Court Cause No.
33C02-1608-MI-87
Vaidik, Chief Judge.
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Case Summary
[1] Johnny Ray Jenkins appeals the trial court’s dismissal of his petition
challenging the revocation of his parole. We affirm.
Facts and Procedural History
[2] In January 2011, Jenkins was ordered to serve twelve years in the Department
of Correction for several crimes. He was released on parole in December 2015.
The following spring, his parole agent initiated revocation proceedings, alleging
that he had failed to report as instructed, moved without permission, and used
and/or possessed illegal drugs. The parole board held a revocation hearing in
July 2016. Jenkins pled guilty to the drug violation (he had tested positive for
marijuana, methamphetamine, and morphine), and the board found him guilty
of the others. The board revoked Jenkins’s parole and ordered him to serve the
remainder of his sentence in prison.
[3] In August 2016, Jenkins filed a “Petition for Writ of Habeas Corpus Relief”
seeking immediate release. In the petition, Jenkins acknowledged “drug
usage,” but he nonetheless maintained that “he had not violated his parole.”
Appellant’s App. Vol. II p. 11. The State filed a motion to dismiss for failure to
state a claim pursuant to Indiana Trial Rule 12(B)(6), asserting that Jenkins
could not obtain any relief under his petition because he acknowledged in the
petition itself that he had engaged in conduct that constituted a parole violation.
Jenkins opposed the motion, but the trial court granted it.
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[4] Jenkins now appeals.
Discussion and Decision
[5] Jenkins contends that the trial court erred by dismissing his petition. Initially,
we note that while Jenkins styled his petition as one for a writ of habeas corpus,
he is actually seeking post-conviction relief. Our post-conviction rules
specifically provide for a claim that parole has been unlawfully revoked:
Any 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.
Ind. Post-Conviction Rule 1(1)(a)(5) (emphasis added). Jenkins cites two cases
in which we have held that a prisoner who is claiming that his parole was
unlawfully revoked and who is requesting immediate release can seek relief
through habeas corpus. Mills v. State, 840 N.E.2d 354, 357 (Ind. Ct. App.
2006); Hannis v. Deuth, 816 N.E.2d 872, 875 n.2 (Ind. Ct. App. 2004). More
recently, however, we have held that a petition for post-conviction relief is the
proper way to challenge parole revocation. Hardley v. State, 893 N.E.2d 740,
743 (Ind. Ct. App. 2008); see also Receveur v. Buss, 919 N.E.2d 1235, 1237 (Ind.
Ct. App. 2010), trans. denied.
[6] Because Jenkins’s petition is essentially one for post-conviction relief, we will
treat the trial court’s dismissal as a denial of post-conviction relief under Post-
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Conviction Rule 1(4)(f), which provides, in part, “If the pleadings conclusively
show that petitioner is entitled to no relief, the court may deny the petition
without further proceedings.” When a court disposes of a petition under
subsection (f), we review the decision as we would a judgment on the pleadings
under Trial Rule 12(C). Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App.
2003), trans. denied. That means our review is de novo. See KS&E Sports v.
Runnels, 72 N.E.3d 892, 898 (Ind. 2017). We accept well-pled facts as true and
will reverse if the petition “raises an issue of possible merit.” Allen, 791 N.E.2d
at 756.
[7] Even under that forgiving standard, we cannot say that the trial court erred. In
his petition, Jenkins claimed that “he had not violated his parole,” but only
after explicitly acknowledging that he had engaged in conduct that constituted a
parole violation, namely, “drug usage.” Having admitted a parole violation,
Jenkins cannot be heard to complain that there was no such violation, and the
trial court properly denied his petition.1
1
Jenkins also alleged in his petition that the revocation of his parole based on his drug use amounts to double
jeopardy because he was already “sanctioned” for that drug use when his parole agent directed him to
undergo a substance-abuse evaluation and to follow all recommendations of the treatment provider.
Appellant’s App. Vol. II p. 11. Jenkins does not cite any authority that supports this novel double-jeopardy
claim, and we are not aware of any.
In addition, Jenkins argues on appeal that he was denied due process by the parole board. Because Jenkins
did not include such a claim in his petition to the trial court, we will not address it.
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[8] Affirmed.
Mathias, J., and Crone, J., concur.
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