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01/12/88 EVERETT PAGE v. STATE INDIANA

Filed: January 12, 1988.

EVERETT PAGE, PETITIONER-APPELLANT,
v.
STATE OF INDIANA, RESPONDENT-APPELLEE



APPEAL FROM THE POSEY CIRCUIT COURT, The Honorable Donald E. Baier, Special Judge, Cause No. 78-S-30.

Neal, J., Robertson, J., and Miller, P.j., concur.

Author: Neal

NEAL, J.

STATEMENT OF THE CASE

Petitioner-appellant, Everett "Red" Page, Jr. (Page), appeals the Posey Circuit Court's denial of his petition for post-conviction relief filed pursuant to Ind. Rules of Procedure, Post-Conviction Rule 1.

We affirm.

STATEMENT OF THE FACTS

On May 23, 1979, following a trial by jury, Page was convicted of rape, a Class B felony under IND. CODE 35-42-4-1(a) (3). Page was sentenced to a fourteen-year term of imprisonment. On direct appeal the supreme court affirmed Page's conviction. Page v. State (1980), 274 Ind. 264, 410 N.E.2d 1304, on remand 424 N.E.2d 1021, aff'd 442 N.E.2d 977. In prison Page earned one day of credit for each day he served, halving the time he had to serve. Thus, Page was eligible for release after serving approximately seven years. On September 6, 1985, the date he was released on parole, Page was supposed to sign a Conditional Parole Release Agreement, the standarized form setting forth the terms and obligations of parole. Believing that parole did not apply to him because he had served his sentence, Page refused to sign the agreement; nonetheless, he was released. Page immediately moved to Biloxi, Mississippi, where construction work was available in the wake of a hurricane.

On October 30, 1985, the Indiana Parole Board declared Page delinquent because he had failed to: initially report to his parole officer, follow his specific reporting instructions, and obtain a travel permit before leaving the state, all in contravention of the parole agreement. On December 2, 1985, Page was stopped in Mississippi for a traffic violation and his parole delinquency was discovered. Page was returned to Indiana and, on December 19, 1985, a preliminary hearing was held to determine if probable cause existed to hold a formal parole violation hearing. At the hearing probable cause was determined for all three violations and a formal hearing was scheduled. After the formal hearing on February 5 and 7, 1986, Page's parole was revoked and he was assessed one year's imprisonment. At the end of that year Page was denied parole because of the nature and circumstances of his crime, his prior criminal record, and his misconduct and attitude while incarcerated.

On April 21, 1986, Page filed for post-conviction relief, alleging that his parole had been unlawfully revoked. A hearing on Page's petition was held on January 30, 1987. Page was not allowed to be present at the hearing, but his affidavit was admitted in lieu of his testimony. Page argued that, because he did not sign the parole release agreement, he was not bound by it and his parole could not be revoked for violating its conditions. He also argued that, considering his time served and the credit time he earned, his sentence had expired and his parole could not be revoked. The trial court denied Page relief, having concluded that he was not required to sign the parole agreement and, even assuming otherwise, Page had been advised of its terms and he had received its benefits by being paroled. Page then instituted this appeal.

ISSUES

Page presents the following issues, claiming the post-conviction court erred in:

I. Refusing to allow him to be present at his post-conviction hearing; and

II. Denying him relief, because he had refused to sign the parole agreement and he had ...


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