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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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