COA orders hearing, possible release, for man in custody

Under unusual circumstances, the Indiana Court of Appeals is asking the state to explain why a man is in custody after a chain of events stemming from charges upon which he has not been arrested.

In 2006, Harry Harrison pleaded guilty to unlawful possession of a firearm by a serious violent felon and received a 20-year sentence in the Indiana Department of Correction. He was released in 2015 to join a community transition program but was later charged with two new Madison County crimes in 2016 and 2017 and placed back in custody for alleged parole violations. He has been detained in Hendricks County since.

Harrison signed an Indiana Department of Correction Division of Parole Services document titled “Waiver of Preliminary Hearing.” He did not initial the space provided to indicate that he was pleading guilty to any allegation, but rather placed his initials by provisions that stated he was not guilty and that he waived his right to a preliminary hearing.

For unknown reasons, however, Harrison was never arrested on his new criminal charges, which would trigger his Sixth Amendment right to trial within a reasonable time, as implemented by Indiana Criminal Rule 4. When he filed a pro se motion for speedy trials on those charges, the trial court denied the motions, on grounds that warrants were still outstanding, he had not been arrested, and that he was being held on parole violation allegations.

Harrison filed a petition for a writ of habeas corpus, claiming he was in unlawful, indefinite detention because he had not been arrested on new charges, yet had received no parole hearing. The state argued Harrison was lawfully incarcerated because he was not statutorily entitled to a final parole violation hearing until after disposition of pending criminal charges and he had signed the waiver form.

Although it found no evidence from the record that Harrison was entitled to immediate release from custody, the Indiana Court of Appeals noted Harrison may not simply be held until his original sentence expires, with no determination of probable cause for a parole violation.

It thus remanded the case of Harry Harrison v. Stanley Knight, et al., 18A-MI-2918, and instructed the trial court to conduct a hearing on a rule to show cause directed to the Indiana Attorney General to show why Harrison was not entitled to immediate release subject to conditions of parole.

“If we accepted the State’s position that Harrison, a parolee, can lawfully be incarcerated until his maximum release date without presentation of evidence or admission of guilt, the State’s burden to establish an alleged parole violation would be completely obviated,” Judge L. Mark Bailey wrote.

“… Here, the execution of a waiver document absent an arrest on any new charge started a chain of events that has denied Harrison the opportunity to have probable cause for a parole violation established and denied him the disposition of criminal charges in a reasonably timely manner,” Bailey continued. “As Harrison insists, our parole statutory scheme is not to be implemented in this way.

“At first blush, it would appear that Harrison is entitled to immediate release, subject to conditions of parole. However, we cannot on the record before us determine with certainty that an arrest warrant has not been served upon Harrison after the trial court issued its habeas ruling,” the panel concluded. “We find further factfinding proceedings necessary, and therefore remand the matter to the trial court.”