Hale v. State

Decision Date06 August 2013
Docket NumberNo. 25A04–1301–CR–15.,25A04–1301–CR–15.
Citation992 N.E.2d 848
PartiesDerek HALE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court


Bradley A. Rozzi, Andrew A. Achey, Hillis, Hillis, Rozzi & Knight, Logansport, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


BROWN, Judge.

Derek Hale appeals the trial court's order on his Verified Petition for Writ of Habeas Corpus. Hale raises two issues which we consolidate and restate as whether the court abused its discretion when it entered its order clarifying Hale's sentence. We reverse and remand.


On January 25, 2010, the State charged Hale in the Fulton Superior Court with Count I, dealing methamphetamine within 1,000 feet of a public park as a class A felony; Count II, possession of methamphetamine within 1,000 feet of a public park as a class B felony; and Count III, illegal drug lab as a class C felony. On June 7, 2011, Hale and the State filed a written plea agreement, in which Hale agreed to plead guilty to Count II and the State agreed to dismiss Counts I and III. The agreement stated the following regarding sentencing:

There is no agreement as to the sentence to be imposed by the Court except that the parties do agree that no more than six years of any sentence may be executed time, with the parties being otherwise free to present evidence and make argument for any sentence within that limitation and allowed by law. The Court may suspend any portion of the sentence, including a sentence in excess of the six year limit on executed time, and the limitation on the amount of the executed sentence shall not apply to any suspended sentence if there is a subsequent proceeding for revocation of probation, but rather only applies at the time of the original sentencing.

Appellant's Appendix at 10. On June 22, 2011, the court, by Judge Wayne E. Steele, held a guilty plea hearing, Hale pled guilty to Count II, and the court took the plea agreement under advisement.

On November 22, 2011, the court accepted the plea agreement, entered a judgment of conviction for Count II, possession of methamphetamine as a class B felony, dismissed Counts I and III, and held a sentencing hearing. In pronouncing sentence, Judge Steele stated that he would impose an advisory term of ten years and stated specifically:

The Court is persuaded, I think, that the ten-year sentence, I'm gonna split up this way—and I don't routinely do this, so—but the Court will order that you serve two years on work release, followed by a year on home detention; and that there'll be five years then remaining of straight probation.

Transcript at 60. That same day, the court entered its written order of judgment of conviction, consisting of a general form which the court filled out by hand, noting that Hale would be sentenced to ten years suspended including five years of probation for Count II, and, under a section labeled “Other,” noted: [Hale] to serve two (2) years on work release beginning Nov 28, 2011 at 8:00 am at FCJ followed by 1 year home detention.” 1 Appellant's Appendix at 12.

On December 19, 2012, Hale filed a Verified Petition for Writ of Habeas Corpus in the Fulton Superior Court stating:

1. This Petition is made and writ applied for on behalf of Derek Hale, who is unlawfully restrained of his liberty and falsely imprisoned in the Fulton County Jail, by Respondent, Walker Conley, herein in his capacity as Fulton County Sheriff.

2. To the best of [Hale's] knowledge and belief, he is being held in said facility on the following basis:

a. On or about the 22nd day of November, 2011, [he] was sentenced in Cause Number 25D01–1001–FA–00043;

b. In pertinent part, [he] received a ten year suspended sentence with five years suspended to probation;

c. As a condition of [his] probation, he was ordered to serve two years on work release beginning November 28, 2011, at 8:00 a.m. at the Fulton County Jail followed by one year of in-home detention;

3. The detention is illegal for the following reasons:

a. As of November 28, 2012, [he] served one actual year (365 days) in the Fulton County Work Release Program;

b. Pursuant to I.C. 35–50–6–6, I.C. 35–38–2.5–5 and the case of Peterink v. State, 971 N.E.2d 735 [ (Ind.Ct.App.2012) ], [he] should have received one additional day of good time credit for each day served beginning on November 28, 2011, to the present;

c. As of the date of this Writ, Defendant Hale has served at least twenty (20) actual days in the Fulton County Jail in excess of the sentence handed down by the Court on November 22, 2011.

4. No previous application has been made for this Writ or the relief sought;

5. [Hale] is entitled to immediate release from the unlawful detention.

Id. at 13–14. Hale requested that the court “issue a Writ of Habeas Corpus directing Sheriff of Fulton County, Indiana, Walker Conley, to release [Hale] from the Fulton County Work Release Program,” direct Hale to “communicate with the appropriate Community Corrections Officer to immediately begin service of his one year of In–Home Detention,” and to further apply any additional time served credit to his in-home detention time. Id. at 14.

On January 2, 2013, the court, again by Judge Steele, held a hearing on Hale's petition 2 at which, following arguments of the parties, the court indicated that it intended to sentence Hale to “two years of actual time on work release and one year of actual time on home detention” which would have complied with the six-year cap on any executed time. Transcript at 76. The court also indicated it intended to “listen to the sentencing order and go back and look at the file” and that it would then enter an order on the petition. Id. at 78.

On January 4, 2013, the court entered the following order:

Parties appear for hearing on [Hale's] Verified Petition For Writ of Habeas Corpus.... The Court being duly advised finds as follows:

1. The Sentencing Order of November 22, 2011 is clarified by the Court to read two (2) actual years of work release followed by one (1) actual year on home detention as terms and conditions of probation which was the original intent of the Court. If [Hale] is to receive credit time and good time credit the work release would be four (4) years and home detention two (2) years.

2. The Court sentenced [Hale] to a ten (10) year sentence which was suspended and [ ] placed [Hale] on probation for five (5) years with certain terms and conditions.

3. This sentence complies with the statutory sentence for a Class B felony and with [Hale's] plea agreement to a Class B felony that had no agreement as to sentence except a six (6) year cap of any executed sentence.

Appellant's Appendix at 15.


The issue is whether the court abused its discretion when it entered its order clarifying Hale's sentence. “Every 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.” Ind.Code § 34–25.5–1–1. The purpose of a writ of habeas corpus is to determine the lawfulness of the defendant's detention. Hardley v. State, 893 N.E.2d 740, 742 (Ind.Ct.App.2008). A trial court must provide a writ of habeas corpus if a petitioner is unlawfully incarcerated and entitled to immediate release. Id. [A] petitioner may not file a writ of habeas corpus to attack his conviction or sentence.” Partlow v. Superintendent, Miami Correctional Facility, 756 N.E.2d 978, 980 (Ind.Ct.App.2001) (citing Hawkins v. Jenkins, 268 Ind. 137, 140, 374 N.E.2d 496, 498 (1978) (citing Ind. Post–Conviction Rule 1(1)(c) (stating that a writ of habeas corpus that attacks a conviction or sentence must be transferred to the court of conviction and treated as though filed as a post-conviction relief petition))).

We review for an abuse of discretion the trial court's decision regarding the defendant's petition. Id. We do not reweigh the evidence, and we consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Id. Any conclusions regarding the meaning or construction of law are reviewed de novo. Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002), reh'g denied.


We first note that here, it appears that a petition for habeas corpus relief was an acceptable vehicle for Hale to bring this challenge. We also note that the Indiana Supreme Court has observed that home detention is not a form of incarceration, and Hale's petition challenged his continuedplacement on work release and argued that he should have been transferred to home detention. See Smith v. State, 971 N.E.2d 86, 88 (Ind.2012) (noting that the court credited the defendant for certain days he had spent incarcerated as well as certain days he served on home detention).

Next, we observe that the trial court did not follow the relevant procedures for habeas corpus petitions and, although we find that any procedural error on the court's part does not affect the eventual outcome of Hale's challenge, we discuss such procedures more generally. We note that the writ of habeas corpus itself is employed to bring a person before a court, although courts frequently use the term “writ” in reference to orders issued following hearings on petitions for habeas corpus, see, e.g., Randolph v. Buss, 956 N.E.2d 38, 40 (Ind.Ct.App.2011) (“After a hearing, the trial court denied Randolph's petition.”), trans. denied, technically a court does not hold a hearing on a defendant's “petition” for habeas corpus. See Baldi v. State, 908 N.E.2d 639, 641 (Ind.Ct.App.2009) (“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.”) (quoting O'Leary v. Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941)), reh'g denied; see generally ...

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