The Indiana Supreme Court ruled that a man serving two life sentences for his 1975 murder convictions isn't eligible to seek parole under the laws in effect at the time the murders took place, but could seek clemency though the Indiana Parole Board.

In State of Indiana v. Steve Hernandez, No. 45S00-0806-CR-377, both the state and Steve Hernandez appealed rulings made by the court concerning Hernandez's petition for post-conviction relief. He was convicted of two counts of murder in 1975 and sentenced to two terms of life in prison.

Hernandez filed a petition for post-conviction relief, claiming the trial court had only sentenced him to one life sentence because according to the record, it appeared the trial court recited the murder and robbery counts in the wrong order in one cause such that a withheld sentence applied to one of the murder counts. He also argued the parole board, by applying 1979 statute Indiana Code Section 11-13-3-2(b)(3) to his convictions, had denied him consideration for parole in violation of ex post facto clauses in the U.S. and state constitutions. The post-conviction court held the statute was unconstitutional as applied to him, but denied his petition regarding his sentencing.

The Supreme Court affirmed the post-conviction court's denial of relief based on the alleged sentencing error. Hernandez never raised on direct appeal that his sentence was improper, so he is foreclosed from raising the claim in post-conviction court, wrote Justice Frank Sullivan. Hernandez's argument of the sentencing being a fundamental error also fails because there's no basis for it to apply in this case.

Next, the high court had to determine whether Hernandez would be eligible for parole based on law at the time he was convicted. The justices reversed the post-conviction court's finding that I.C. Section 11-13-3-2(b)(3) was unconstitutional as applied to Hernandez. The constitutional provisions are only implicated if he was otherwise eligible to be considered for parole except for the enactment of the statute; however, because he wasn't, there is no ex post facto clause violation.

The justices adopted the majority opinion in White v. Indiana Parole Board, 713 N.E.2d 327 (Ind. Ct. App. 1999), which held people serving life sentences weren't eligible to be considered for parole. The Supreme Court has held people serving life sentences aren't eligible for good time credit because a life sentence is neither determinate nor indeterminate, which should apply to the eligibility to be considered for parole, wrote Justice Sullivan. A statute enacted in 1974 set parole eligibility only for people serving indeterminate or determinate terms of imprisonment.

The Supreme Court also revisited its ruling in Johnston v. Dobeski, 739 N.E.2d 121 (Ind. 2000), which the post-conviction court relied on to find that a person under a life sentence in 1975 had been eligible for parole until the enactment of I.C. Section 11-13-2-2(b)(3). But given the ruling in White and its analysis in the instant case, the high court overruled its portion of Johnston that held life sentences were indeterminate and that a person serving a life sentence was eligible for consideration of parole.

The Supreme Court determined Hernandez is eligible to seek clemency in the same manner that other prisoners sentenced to life did during 1962-1973: He can ask for clemency from the Indiana Parole Board, who can then forward it on to the governor if they consider his petition to be meritorious, wrote Justice Sullivan. Prisoners used to be able to petition the Indiana Clemency Commission; in 1979, the commission was abolished and the Parole Board formally assumed those duties.

Hernandez should warrant consideration of clemency based on his taking responsibility for his crimes and working hard to improve himself while incarcerated. Should he be successful in having his sentences commuted to a term of years, then he would be eligible to seek parole, wrote Justice Sullivan.

The case is remanded to the post-conviction court to enter judgment in favor of the state.