Floyd Tewell 1-11 SCrt – Chief Justice Shepard
[SCt grants transfer and adopts Chief Judge Baker’s opinion 876 N.E.2d 337 (ia 2007)]
Parole Board’s turn over order from life sentence on kidnap count to 20 year term of years on rape count was silent about discharge of the life sentence. Supporting documents established that the parole board did not intend to discharge the life sentence, when inmate was paroled on the rape count.
FACTS:
On February 21, 1974, after conviction, Tewell was sentenced to life imprisonment for kidnapping, consecutive to 20 years for rape (for the knifepoint abduction and rape of a respiratory therapist in Indianapolis).
On August 10, 1989 the parole board turned over the life sentence to the 20 year sentence.
On December 16, 1994, Tewell was paroled on the 20 year sentence.
On April 9, 1998 Tewell was arrested for possession of cocaine.
On October 6, 1998 he was convicted of dealing - possession with intent to deliver (fA) and received a 20 year sentence with five suspended.
On October 23, 1998 the parole board revoked his parole, reinstating the life sentence.
Tewell filed a petition for habeas corpus challenging the revocation of his parole and the reinstatement of his life sentence. The trial court treated it as a petition for PCR and denied relief. Tewell appealed, and the court of appeals aff’d. The Supreme Court accepted the pro-se request to transfer and adopted the court of appeals decision in conference.
DISCUSSION:
PCR not Habeas because the defendant was not entitled to immediate release, since he was still (apparently) serving the (A felony) dealing sentence, since nothing in the record told the appeals court otherwise. A Habeas review is for abuse of discretion. PCR review is from a negative judgment and will only be reversed if evidence leads to opposite conclusion. Appellate court noted that either way, trial court is affirmed on this record.
Discharged from life without parole or just turned over with intent to have him remain on parole for life? Meeker v Indiana Parole Board 794 N.E.2d 1105 (ia 2004) doesn’t apply here. That turn over order was from a term of years, not from a life sentence.
IC 11-13-3-5(a)(3) “a person released on parole from a term of life imprisonment remains on parole for life, except that the parole board may discharge him at any time after his release on parole.”
To be discharged on the parole board’s turn over order, there must be evidence of a clear intent to discharge (in the order, in the hearing, or in the supporting documents). [Or perhaps everything needs to be silent about the discharge.] Sometimes the order includes phrases noting intent not to discharge. Phrases like “preserve life sentence” or “will go back on life sentence.” No such clarity was provided in this order, but according to the appellate court, the supporting documents showed a clear intent by the parole board not to discharge the life sentence. So based on the supporting documents, the trial court’s denial of PCR was aff’d.