Even while the Indiana Court of Appeals upheld the two escape convictions of a Shelby County man, the appellate panel noted it was concerned that the defendant who was ultimately found not guilty still has a pair of felonies on his record for “relatively minor violations” of pretrial home detention rules.
Montel Giden was placed on home detention after being charged with criminal recklessness, a Level 5 felony, and pointing a firearm, a Level 6 felony. He could only leave his home for approved reasons, but still made unauthorized trips from his residence to go the Shelby County Community Corrections office and, he said, to borrow an inhaler.
Subsequently, a jury found him guilty of two counts of Level 6 felony escape. The Shelby Superior Court sentenced Giden to an aggregate one-year sentence, with 180 days executed in the Shelby County Jail.
Giden appealed, arguing the escape statute under which he was convicted, Indiana Code Section 35-44.1-3-4(b), violates the Proportionality Clause of Article 1, Section 16 of the Indiana Constitution. That statute, which makes the violation of a home detention order a Level 6 felony, runs afoul of the Proportionality Clause because the unauthorized absence statute, Indiana Code Section 35-38-2.5-13, provides that the unauthorized absence from home detention is a Class A misdemeanor.
Although Giden did not raise the constitutionality argument at trial, the Court of Appeals allowed him to present the issue. However, in Montel Giden v. State of Indiana, 19A-CR-2891, the appellate court affirmed the two convictions.
In his brief to the Court of Appeals, Giden asserted that “common sense and sound logic dictate that (the unauthorized absence statute) should apply equally to a person place on home detention as a condition of pre-trial release” in order to comply with Indiana’s Proportionality Clause. He pointed out a “presumptively innocent defendant” placed on home detention as a condition of pretrial release “can received a harsher penalty” than an already-convicted offender.
The Court of Appeals cited Gordon v. State, 981 N.E.2d 1215,1220 (Ind. Ct. App. 2013), which found the unauthorized absence statute “applies only to cases where the offender has been placed on home detention as a condition of probation.” Since Giden was on home detention as a condition of pretrial release and not because he was on probation, the unauthorized absence statute is not applicable.
Still, in a footnote, the appellate court echoed Giden’s argument and pushed the Indiana Legislature to act.
“Although Giden’s Proportionality Clause argument fails, we note our concern with the outcome here,” Judge Elizabeth Travitas wrote for the panel. “Giden was found not guilty of the original charges for which he was placed on pretrial home detention, but he now has two felony convictions for relatively minor violations of the pretrial home detention order. We find it problematic that the escape statute treats relatively minor violations, such as Giden’s violations, the same as the violations of a defendant who absconds from pretrial home detention. We cannot find the statute unconstitutional merely because it seems too severe …; we encourage the General Assembly, however, to consider amending the escape statute to include staggered penalties based on the type of violation.”