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COA dismisses sex offender’s ‘premature’ appeal

May 31, 2017

A convicted sex offender who has not yet received treatment in a state-mandated Department of Correction program cannot move forward with his appeal of the dismissal of his complaints against the DOC and its contracted health services provider because the appeal is premature, the Indiana Court of Appeals held Wednesday.

James Manley was convicted in 1997 of two counts of Class A felony child molesting and two counts of Class B felony child molesting against his eight-year-old daughter. He was sentenced to an aggregate of 55 years, with his earliest projected release data set for October 2021.

After his convictions were affirmed on an initial direct appeal, Manley began filing pro se collateral challenges to his convictions, sentence and treatment in the DOC in both state and federal courts. Meanwhile, the DOC implemented in 1999 the Sex Offender Management and Monitoring Program, which offenders convicted of child molesting must participate in or risk the loss of good-time credit.

In May 2016, Manley filed a “Complaint for Declaratory and Injunctive Relief/Challenge to the Constitutionality of a State Statute and IDOC Executive Directive,” naming the DOC, Liberty Behavioral Health Corporation and GEO Group Inc., a private company that operates Manley’s DOC facility, as defendants. The complaint alleged Manley’s mandated participation in SOMM violated the federal and state Religious Freedom Restoration Acts, as well as his rights to freedom of religion. However, the complaint did not specify how Manley’s required participation in SOMM violated his religious beliefs and practices.

Liberty and the DOC moved to dismiss, which the Henry Circuit Court granted, respectively, on July 14 and 21, 2016. Manley then filed an amended complaint, but the trial court entered an order stating the amended complaint was not “a proper pleading as otherwise required by the Indiana Trial Rules” and, thus, declined to take further action.

Manley appealed, but the Indiana Court of Appeals dismissed his appeal, finding the trial court’s order was not final because it did not dispose of all issues because the complaint against GEO was never dismissed. Further, Judge Michael Barnes wrote the trial court never used the “‘magic language’ of Indiana Trial Rule 54(B) to convert the partial dismissal of Manley’s complaint into a final judgment, nor that it is interlocutory of right, nor did Manley seek permission to file an interlocutory appeal.”

The appellate court declined to consider Manley’s premature appeal on the merits, with Barnes writing “it would be unorderly if we were to affirm that partial dismissal, only to have GEO still litigating the case… .” Further, Manley has not yet entered phase two of the SOMM program, in which he would begin actual treatment, because he is not with within three years of his expected release date, Barnes said.

Thus, Barnes wrote the best course of action is to dismiss and remand the case. On remand, the appellate panel instructed the trial court to address the issue of why the trial court incorrectly labelled the July 21 order of dismissal as to Liberty as a duplicate of the July 14 order of dismissal as to the DOC.

The case is James Manley v. Gregory F. Zoeller, et al., 33A05-1608-PL-1952.

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