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COA declines ruling on constitutionality of plan

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The Indiana Court of Appeals declined to address the constitutionality of a Department of Correction program for sex offenders based on the deficient record before it and because the appellate court could decide the case without ruling on the constitutionality of the program.

The Indiana Public Defender Council and State of Indiana, which together filed a brief of amici curiae, urged the court to examine the constitutionality of the DOC's Sex Offender Management and Monitory Treatment Plan (SOMM).

In State of Indiana and Indiana Department of Correction v. Timothy Moore,  No. 29A02-0811-CR-1039, Timothy Moore appealed based on the application of Indiana Trial Rules in his case. He was found guilty of child molesting and was required to participate in SOMM and a Sex Offender Containment and Accountability Program. Both required him to admit guilt and take polygraph tests. Moore had reservations about these parts of the programs because he maintained his innocence throughout the proceedings and had a pending petition for post-conviction relief. Moore worried the tests would violate his Fifth Amendment right against self-incrimination.

The DOC demoted his credit class, prohibited him from completing his GED requirement, and changed his visitation rights as a result of Moore's unwillingness to take the polygraph tests or admit guilt. He filed a motion for restoration of his credit time and DOC privileges; the trial court granted his motion after it didn't receive a response from the DOC to the motion within 45 days. Later the DOC's motion to intervene and correct error was granted.

The issue in this case is whether Moore raised a challenge to only the disciplinary actions or whether his challenge is rooted in the Fifth Amendment. His motion did challenge the deprivation of rights and various privileges, but his attorney had previously challenged the deprivation of his Fifth Amendment right under the DOC's SOMM policies, wrote Senior Judge John Sharpnack.

"DOC cannot violate a prisoner's constitutional right against self-incrimination under the Fifth Amendment, impose sanctions because the prisoner asserts his rights, and then hide behind the shibboleth of 'no review of prison disciplinary matters,'" wrote the judge. "We conclude that the trial court had subject matter jurisdiction to review the deprivation of Moore's credit time and privileges after such deprivation occurred pursuant to Moore's claim of his Fifth Amendment right against self-incrimination."

The Court of Appeals agreed with the DOC argument that its appeal from the trial court's belated grant of its motion to correct error was valid based on Homeq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008), and Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind. 2000). However, the motion was entirely premised on the trial court's alleged lack of subject matter jurisdiction; but because it did have subject matter jurisdiction, the trial court erroneously granted DOC's motion to correct errors, wrote Senior Judge Sharpnack.

The appellate court also ruled DOC wasn't denied due process because it received notice in sufficient time to intervene and be heard.

The IDPC wanted the Court of Appeals to develop a "bright line" rule pertaining to the DOC's implementation of SOMM, but the appellate court declined. In a footnote, Senior Judge Sharpnack wrote that it appears the SOMM is similar to programs found unconstitutional in other states. But because of the deficient record before it and because the case could be decided on a clear nonconstitutional basis, the appellate court declined to rule on the constitutionality of the program.

The case was remanded with instructions the trial court vacate its grant of the motion to correct error and reinstate the original order in favor of Moore.

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  1. @BryanJBrown, You are totally correct. I have no words, you nailed it.....

  2. You have not overstated the reality of the present situation. The government inquisitor in my case, who demanded that I, on the record, to choose between obedience to God's law or man's law, remains on the BLE, even an officer of the BLE, and was recently renewed in her contract for another four years. She has a long history in advancing LGBQT rights. http://www.realjock.com/article/1071 THINK WITH ME: What if a currently serving BLE officer or analogous court official (ie discplinary officer) asked an atheist to affirm the Existence, or demanded a transsexual to undergo a mental evaluation to probe his/her alleged mindcrime? That would end a career. The double standard is glaring, see the troubling question used to ban me for life from the Ind bar right here: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners (see page 8 of 21) Again, what if I had been a homosexual rights activist before law school rather than a prolife activist? A gay rights activist after law school admitted to the SCOTUS and Kansas since 1996, without discipline? A homosexual rights activist who had argued before half the federal appellate courts in the country? I am pretty certain that had I been that LGBQT activist, and not a pro-life activist, my passing of the Indiana bar exam would have rendered me an Indiana attorney .... rather than forever banished. So yes, there is a glaring double standard. And some are even beyond the reach of constitutional and statutory protections. I was.

  3. Historically speaking pagans devalue children and worship animals. How close are we? Consider the ruling above plus today's tidbit from the politically correct high Court: http://indianacourts.us/times/2016/12/are-you-asking-the-right-questions-intimate-partner-violence-and-pet-abuse/

  4. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  5. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

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