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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: JOSEPH B. WILLIAMS (AKA LONNIE WILLIAMS) Plainfield, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana PAMELA S. MORAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSEPH B. WILLIAMS (AKA LONNIE WILLIAMS), Appellant, vs. STATE OF INDIANA, Appellee. ) ) ) ) ) ) ) ) ) )

FILED
of the supreme court, court of appeals and tax court

Jun 09 2010, 10:13 am

CLERK

No. 32A05-0906-CV-334

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable Robert W. Freese, Judge Cause No. 32D01-0805-MI-13

June 9, 2010
MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE Joseph B. Williams (a.k.a. Lonnie Williams) appeals the trial courts denial of his petition for writ of habeas corpus, after the revocation of his parole. We affirm. ISSUE1 Whether the Parole Board constructively discharged Williams rape sentence when it permitted him to serve his sentence for violating his probation on a prior theft conviction while he was on parole for the rape conviction. FACTS On March 9, 1998, Williams was arrested for theft/receiving stolen property ("Theft I"). In the meantime, he failed to appear at a hearing on June 24, 1998, and the trial court issued a bench warrant for his arrest. On July 9, 1998, he was arrested and placed on a 72-hour hold for several sexual offenses. Apparently, he committed the sexual offenses after being released in March 1998 on bond or on his own recognizance. On July 10, 1998, Williams was sentenced pursuant to a guilty plea on Theft I to 545 days in the Marion County Jail, with 60 days being executed and 485 days suspended. He received seven days of jail time credit, and was placed on probation for 365 days. On December 28, 1998, Williams pleaded guilty to one count of rape and two counts of criminal deviate conduct. On January 27, 1999, he was sentenced to three
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Williams raises eight issues on appeal which we consolidate and restate as one dispositive issue.

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concurrent twenty-year sentences in the Department of Correction ("DOC") and received 203 days of jail time credit, which means that he was incarcerated on said offenses as of mid-July of 1998. On July 15, 2006, he was released to parole for ten years on the sex offense convictions. Upon being released to parole, Williams failed to report to the Marion County probation department for intake on Theft I conviction. Subsequently, when he was arrested on September 8, 2006 for theft/receiving stolen property ("Theft II"), the probation department filed a notice of probation violation; and the Parole Board issued a parole violation warrant. However, the Theft II charge was dismissed on October 23, 2006. The probation department withdrew its probation violation, and the Parole Board voided its warrant and continued Williams on parole supervision. He also began serving his probationary period on Theft I on October 29, 2006. On January 10, 2007, the State filed a request for probation discharge and/or modification of Williams suspended sentence for the Theft I conviction 2 because Williams had tested positive for drug use. The trial court conducted an evidentiary hearing on February 27, 2007, and found that Williams had violated the terms of his probation. His probation was revoked and the court ordered him to serve 200 days executed. On June 5, 2007, after he finished serving his 200 days for violation of probation, the Parole Board returned him to supervised parole.

The trial courts order refers to the second theft offense ("Theft II"); however, the record reveals that the Theft II charge was dismissed on October 23, 2006.
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On August 23, 2007, a parole violation warrant was requested because Williams had allegedly failed to attend sex offender treatment; failed to report to his parole agent; changed his residence without notice to his parole agent; and his whereabouts were unknown. The parole violation warrant request was later amended to reflect that

Williams was also in police custody after being arrested for another theft charge and for resisting law enforcement on August 19, 2007. On August 27, 2007, after the parole violation warrant was amended, it was served on Williams on September 14, 2007. At the October 12, 2007 hearing, the Parole Board found that Williams had violated his parole, revoked his parole, and assessed the balance of his sentences for the sexual offenses. On May 22, 2008, Williams filed a petition for writ of habeas corpus. On May 6, 2009, the trial court conducted a hearing. Williams testified that DOC had declined to file a notice of violation of parole because his Theft I probation predated his parole. On May 19, 2009, the trial court issued an order denying Williams habeas petition stating, in pertinent part, the following: 18. [Williams] requests immediate release based on the following arguments and allegations: a. Probation and parole must run consecutively unless ordered to run concurrently; and b. [He] should have been released from parole on June 5, 2007 because he was sentenced to the Department of Correction for a violation of probation. It is [his] contention that he cannot serve a prison sentence and be paroled at the same time.

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19. However, a review of the abstracts of judgment for the theft conviction and the rape conviction show that there is no order that any portion of his sentence be served consecutively[.] 20. I.C.

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