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Sex offender not eligible to participate in county diversion program

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The Indiana Court of Appeals affirmed the denial of a defendant’s petition for judicial review after he was denied placement by the court in the Vanderburgh County Forensic Diversion Program. The COA held that there was no final administrative decision for the court to review.

Jason Morales was convicted of three counts of Class B felony sexual misconduct with a minor, which is considered a violent offense under I.C. 11-12-3.7-6. He sought placement in the diversion program, but the trial court denied it on the basis that the program does not accept any sex offender.

In Jason E. Morales v. State of Indiana, 82A05-1302-CR-72, Morales, pro se, appealed the denial of his petition for judicial review. He argued that because I.C. 11-12-3.7-12 already provides that persons convicted of certain offenses deemed violent are excluded from placement into post-conviction forensic diversion programs, and not all sex offenses are included in that list, the program exceeded its statutory authority by establishing acceptance criteria more exclusive than those in the statute.

The Court of Appeals concluded that the denial of the petition wasn’t an abuse of discretion because there was no final administrative decision for the trial court to review. Morales never applied for acceptance into the program and was thus never rejected from consideration by the program, Judge John Baker pointed out.

 Even if the program had explicitly rejected Morales, its decision would not have been arbitrary or capricious because Morales was ineligible under the statute. And even assuming solely for argument’s sake that Morales had been eligible under the statute, Indiana counties have the ability to determine the scope of their forensic diversion programs, the judges held.

“Despite Morales’s arguments to the contrary, neither the trial court nor we are at liberty to disregard the statute’s clear language and determine that class B felony sexual misconduct as a minor, inasmuch as it is enhanced merely upon the age of the offender, is not a violent offense,” Baker wrote.
 

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  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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