Harris v. State, 43A05-0502-PC-80.

Citation836 N.E.2d 267
Case DateOctober 18, 2005
CourtSupreme Court of Indiana
836 N.E.2d 267
Michael L. HARRIS, Appellant-Petitioner,
STATE of Indiana, Indiana Parole Board, Indiana Department of Correction, Appellees-Respondents.
No. 43A05-0502-PC-80.
Court of Appeals of Indiana.
October 18, 2005.

Page 268


Page 269

Michael L. Harris, New Paris, Appellant Pro se.

Steve Carter, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, for Appellees.


BAILEY, Judge.

Case Summary

Appellant-Petitioner Michael L. Harris ("Harris") appeals the post-conviction court's denial of his petition for post-conviction relief, which had alleged that the Indiana Parole Board ("the Board") improperly revoked his parole. We affirm.


Harris raises five issues on appeal, which we consolidate and restate as whether the post-conviction court erred by denying his petition for post-conviction relief because:

I. In imposing the special conditions at issue, the Board failed to comply with Indiana Code Sections 11-13-3-4 and 4-22-2-19.5;

II. In revoking his parole, the Board deprived Harris of the due process rights outlined in Morrissey v. Brewer, 408 U.S. 471, 478, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972);

III. The evidence is insufficient to revoke his parole under Indiana Code Section 11-13-3-10; and

IV. The parole revocation deprived Harris of his earned credit time.

Facts and Procedural History

On or about February 26, 1999, Harris pleaded guilty to one count of child molesting, a Class B felony,1 for his sexual conduct with a ten-year old boy. On April 29, 1999, the trial court sentenced Harris to ten years in the Indiana Department of Correction for his child molesting conviction. While incarcerated, Harris earned an associate's and a bachelor's degree in general studies. On November 6, 2002, Harris was released on parole.

Prior to his release, on October 30, 2002, Harris executed the Conditional Parole Release Agreement ("Agreement"), which contained the following provisions: "10. Communication and Special Instructions . . . I will abide by any special conditions imposed by the Indiana Parole Board which have been reduced to writing and

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included as a condition of my parole." Appellant's App. at 48 (capitalization omitted). That same day, Harris also signed the "Special Parole Stipulations for Sex Offenders," wherein the Board imposed the following, relevant, "special stipulations" upon Harris:

3. You shall not use any computer with access to any "on-line computer service" at any location (including place of employment) without the prior approval of your parole agent. This includes any Internet service provider, bulletin board system, e-mail system or any other public or private computer network.

* * * * *

12. You shall not use your employment as a means to acquire new victims. Your parole agent may contact your employer at any time. You will not work in certain occupations that involve being in the private residence of others, such as, but not limited to: door-to-door sales, soliciting, or delivery. Your parole agent must first approve any employment that you do engage in.

13. You shall not possess any items on your person, in your vehicle, in your place of residence or as a part of your personal effects, that attract children, or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not engage in any activities that could be construed as enticing children.

Id. at 50-51 (emphasis in original). Beside each of these conditions appears the initials "SUD," or "signed under duress." Tr. at 23. In addition, Harris signed the "Standard Parole Stipulations for Sex Offenders," which contained, in relevant part, the following condition: "You shall have only one residence and one mailing address at a time." Id. at 49.

While on parole and subject to these special and standard conditions, Harris began working as a casting director at "Michael L. Harris Film Productions" ("MLH Media") — a film and video production company that he had incorporated prior to his molestation conviction. Appellant's App. at 136. As a casting director, Harris wrote Barbara Patton ("Patton") a letter, which provides, in pertinent part:

You have been a life saver so far and I am looking forward to working with you and hopefully getting some Indiana projects off the back-burners and on to the heat, enclosed are: The complete script for Autopsy, a cast breakdown, including but not for production, projected budget for the cast.

* * * * *


You are probably confused by now with the various projects I have on the plate. This is project two which we also spoke about briefly. This involves two boys as main characters as well as featured roles for an old man . . . and a mother . . . . The leads [sic] a 15-18 year old is a peer-rejected, kid from the wrong side of the tracks. After an unsuccessful attempt to find a real job he takes a job babysitting some rich people's kid. The kid wants in (to Byron's life) Byron wants out. The tag line is: Byron a 15-year [old] must decide whether to leave his troubled life behind opting instead for a storybook. . . life of ease on the open road or to face his life head-on healing both himself and young Charlie his babysitting charge.

* * * * *

Last project for now:

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I need a co-writer for a very politically sensitive topic. The project "Victims" deals with an occurrence of sexual molestation, between a man and a boy. The piece is a reflection of the experience from both POV's. This is not a stranger abduction thing but based on a situation that occurred out of a long term relationship that had many positives.... My target age for co-writer is 18-23. With a solid head on his shoulders who can add a perspective that may or may not reflect society's current position. It is an honest exploration of a topic that is too frequently stereotyped into a hysterical phobia. I want an honest exploration of the issues. TOO HOT TO Handle or can you help me out? You mentioned a guy name[d] Chris, still a good prospect? Or not?

Id. at 58-59.

On August 11, 2003, the State filed a parole violation report against Harris, wherein it alleged several violations, including: (1) unauthorized use of the Internet; (2) advertising a video in an attempt to entice children; (3) engaging in unapproved employment, and (4) maintaining more than one residence and one mailing address at a time. The report alleged, for example, that Harris—who is only permitted to use the Internet for work purposes2—has been using e-mail for non-work-related communications and maintaining a website on which he "sells movies he makes, asks people to submit headshots and resumes, advertises talent workshops, and asks people to join his website." Id. at 34. With respect to Harris's use of the Internet, the report also alleged: "[Harris] stated that he knew he was not allowed to use the internet for other than Light House production, his place of employment." Id. at 35.

In regard to the second allegation of a parole violation, the report provides:

[Harris] advertises a video he made called the "Old Ball Game". He calls it an examination of peer acceptance/rejection. He says it is an attempt to develop local actors. The children are between 6-18 years of age. [Harris] has produced a film for sale called ["]GOD'S CHILDREN". [Harris] markets this film as a way to impress youth Pastors.

Id. As for the third allegation—that Harris engaged in unapproved employment—the report contained the following information:

[Harris] contacted a casting director named [Patton.] He told her he was producing a film called AUTOPSY. This film called for [approximately] 90 child actors. [Harris] did not tell [Patton] that he was a convicted sex offender. [Harris] asked [Patton] to send him actors to interview for this film as he stated he was a producer. [Patton] stated that seven actors were sent to [Harris] to interview before she found out that [Harris] was a convicted sex offender. [Patton] stated that two of the actors were under 18 years of age.... The following are some quotes from [Harris's] letter to the casting agent [Patton].... "The leads a 15-18 year old is a peer-rejected kid from the wrong side of the tracks. After an unsuccessful attempt to find a real job he takes a job baby sitting some rich people's kid." He goes on "It has some of the best lead roles for kids this age I have ever seen. It's called "Don't Play Dead before you have to!." [Harris] talks about another script "I need a co-writer for a very politically sensitive topic. The project

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"Victims" deals with an occurrence of sexual molestations, between a man and a boy." [Harris] was convicted of molesting a grade school age boy.... [Harris] was not given permission to produce films or interview actors.

Id. Lastly, and with respect to the fourth alleged parole violation, the report discloses that Harris resides at 70600 County Road # 23 in New Paris, Indiana and maintains a P.O. Box in Syracuse, Indiana, as well as an e-mail address.

On October 3, 2003, after conducting a preliminary hearing, the Board voted to revoke Harris's parole, determining that the four allegations were true. On February 2, 2004, this Court granted Harris permission to file a successive petition for post-conviction relief and, on February 11, 2004, Harris refiled his successive petition for post-conviction relief. On May 27, 2004, the post-conviction court held a hearing, at which Harris appeared pro se. At the conclusion of the hearing, the post-conviction court denied Harris's petition for post-conviction relief. Harris now appeals.

Discussion and Decision
I. Standard of Review

Because Harris is challenging the revocation of his parole, his petition is properly before us as a petition for post-conviction relief. See Parker v. State, 822 N.E.2d 285, 286 (Ind.Ct.App.2005). As...

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