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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. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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