MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 21 2017, 8:33 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Charles M. Cormack Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles M. Cormack, December 21, 2017
Appellant-Petitioner, Court of Appeals Case No. 33A01-1705-MI-1051 v. Appeal from the Henry Circuit Court. The Honorable Kit C. Dean Crane, Keith Butts, Judge. Appellee-Respondent. Trial Court Cause No. 33C02-1702-MI-15
Shepard, Senior Judge
[1] Appellant Charles Cormack, now on parole from child molesting and sexual
misconduct, sought relief from various conditions typically imposed on sexual
offender parolees, like a prohibition on contacting his victim, claiming they
violate ex post facto. We affirm.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 1 of 6 Facts and Procedural History [2] On July 29, 2002, Cormack was sentenced to thirty-six years with eight years 1 suspended for one count of child molesting, a Class C felony , and two counts 2 of sexual misconduct with a minor, one B felony and one C felony.
[3] According to Cormack, he was released to parole and probation on August 1,
2013. He was subsequently arrested for a parole violation. Upon finding that
Cormack had committed a violation, the parole board revoked his parole and
imposed the balance of his sentence in March 2016.
[4] In February 2017, Cormack filed a petition for writ of habeas corpus claiming
ex post facto violations and requesting immediate release from prison. The 3 State responded with a motion to dismiss under Trial Rule 12(B)(6). The trial
court gave Cormack ten days to object, stating that his failure to object might
result in the granting of the motion without a hearing. Although beyond the
ten-day period, Cormack filed his objection. The trial court nevertheless
dismissed Cormack’s ex post facto claim and denied his release from
imprisonment claim on April 26, 2017. He now appeals.
1 Ind. Code § 35-42-4-3 (1998). 2 Ind. Code § 35-42-4-9 (1998). 3 Although Cormack named Keith Butts, the Warden of the New Castle Correctional Facility, as the sole respondent in this action, we will refer to the appellee as “the State.”
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 2 of 6 Issues [5] Cormack presents two issues for our review, which we restate as:
I. Whether conditions of Cormack’s parole constitute prohibited ex post facto laws. II. Whether Cormack is entitled to immediate release from prison.
Discussion and Decision I. Ex Post Facto [6] Our review of a dismissal pursuant to Trial Rule 12(B)(6) is de novo. Weiss v.
Ind. Parole Bd., 838 N.E.2d 1048 (Ind. Ct. App. 2005), trans. denied. Viewing the
petition in the light most favorable to the non-moving party, we must determine
whether it states any facts upon which the trial court could have granted relief.
Id. If the petition sets forth facts which, even if true, would not support the
relief requested, we will affirm the dismissal. Id.
[7] Cormack claims that the parole requirement that he participate in the Sex
Offender Management and Monitoring (SOMM) program violates the
constitutional prohibitions of ex post facto laws.
[8] Both the federal and state constitutions prohibit ex post facto laws. U.S.
CONST. art. I, § 10; IND. CONST. art. I, § 24. An ex post facto law imposes a
punishment for an act that was not punishable at the time it was committed or
imposes additional punishment to that then prescribed. Ramon v. State, 888
N.E.2d 244 (Ind. Ct. App. 2008). The focus of the ex post facto inquiry is not
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 3 of 6 on whether the change causes a disadvantage; rather, we must determine
whether the change increases the penalty by which a crime is punishable or
alters the definition of criminal conduct. Id. Analysis of alleged violations is
the same under both constitutional provisions. Upton v. State, 904 N.E.2d 700
(Ind. Ct. App. 2009), trans. denied.
[9] The practice of releasing prisoners on parole has become an integral part of our
penological system—not as an ad hoc exercise of clemency but as an
established variation on imprisonment. Harris v. State, 836 N.E.2d 267 (Ind. Ct.
App. 2005), trans. denied. The primary purpose of parole is to help offenders
reintegrate into society as constructive individuals without being confined for
the full term of their sentence. Id. To accomplish this goal, offenders placed on
parole are subjected to specific conditions that restrict their activities
substantially beyond ordinary restrictions imposed by law on individual
citizens. Id.
[10] The parole board has the power to determine whether prisoners should be
released on parole and, if so, under what conditions. Ind. Code §§ 11-13-3-3, -4
(2012); Harris, 836 N.E.2d 267. A prisoner is released on parole only upon his
agreement to these conditions, and the parole agreement is a contract between
the prisoner and the State by which the parolee is bound. Harris, 836 N.E.2d
267. The board may also impose additional conditions beyond the standard
conditions as long as they are reasonably related to the parolee’s successful
reintegration into the community and not unduly restrictive of a fundamental
right. Ind. Code § 11-13-3-4(b).
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 4 of 6 [11] Here, the additional parole condition for Cormack is his participation in the
SOMM program. This very question was addressed in Patrick v. Butts, 12
N.E.3d 270 (Ind. Ct. App. 2014). The Patrick panel explained:
The Parole Board is allowed to impose conditions that are “reasonably related to the parolee’s successful reintegration into the community,” Ind. Code § 11–13–3–4(b), and that subsection was in place when Patrick was convicted [in 1991]. Our Supreme Court has found that the SOMM program “is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control.” Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014).
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 21 2017, 8:33 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Charles M. Cormack Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles M. Cormack, December 21, 2017
Appellant-Petitioner, Court of Appeals Case No. 33A01-1705-MI-1051 v. Appeal from the Henry Circuit Court. The Honorable Kit C. Dean Crane, Keith Butts, Judge. Appellee-Respondent. Trial Court Cause No. 33C02-1702-MI-15
Shepard, Senior Judge
[1] Appellant Charles Cormack, now on parole from child molesting and sexual
misconduct, sought relief from various conditions typically imposed on sexual
offender parolees, like a prohibition on contacting his victim, claiming they
violate ex post facto. We affirm.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 1 of 6 Facts and Procedural History [2] On July 29, 2002, Cormack was sentenced to thirty-six years with eight years 1 suspended for one count of child molesting, a Class C felony , and two counts 2 of sexual misconduct with a minor, one B felony and one C felony.
[3] According to Cormack, he was released to parole and probation on August 1,
2013. He was subsequently arrested for a parole violation. Upon finding that
Cormack had committed a violation, the parole board revoked his parole and
imposed the balance of his sentence in March 2016.
[4] In February 2017, Cormack filed a petition for writ of habeas corpus claiming
ex post facto violations and requesting immediate release from prison. The 3 State responded with a motion to dismiss under Trial Rule 12(B)(6). The trial
court gave Cormack ten days to object, stating that his failure to object might
result in the granting of the motion without a hearing. Although beyond the
ten-day period, Cormack filed his objection. The trial court nevertheless
dismissed Cormack’s ex post facto claim and denied his release from
imprisonment claim on April 26, 2017. He now appeals.
1 Ind. Code § 35-42-4-3 (1998). 2 Ind. Code § 35-42-4-9 (1998). 3 Although Cormack named Keith Butts, the Warden of the New Castle Correctional Facility, as the sole respondent in this action, we will refer to the appellee as “the State.”
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 2 of 6 Issues [5] Cormack presents two issues for our review, which we restate as:
I. Whether conditions of Cormack’s parole constitute prohibited ex post facto laws. II. Whether Cormack is entitled to immediate release from prison.
Discussion and Decision I. Ex Post Facto [6] Our review of a dismissal pursuant to Trial Rule 12(B)(6) is de novo. Weiss v.
Ind. Parole Bd., 838 N.E.2d 1048 (Ind. Ct. App. 2005), trans. denied. Viewing the
petition in the light most favorable to the non-moving party, we must determine
whether it states any facts upon which the trial court could have granted relief.
Id. If the petition sets forth facts which, even if true, would not support the
relief requested, we will affirm the dismissal. Id.
[7] Cormack claims that the parole requirement that he participate in the Sex
Offender Management and Monitoring (SOMM) program violates the
constitutional prohibitions of ex post facto laws.
[8] Both the federal and state constitutions prohibit ex post facto laws. U.S.
CONST. art. I, § 10; IND. CONST. art. I, § 24. An ex post facto law imposes a
punishment for an act that was not punishable at the time it was committed or
imposes additional punishment to that then prescribed. Ramon v. State, 888
N.E.2d 244 (Ind. Ct. App. 2008). The focus of the ex post facto inquiry is not
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 3 of 6 on whether the change causes a disadvantage; rather, we must determine
whether the change increases the penalty by which a crime is punishable or
alters the definition of criminal conduct. Id. Analysis of alleged violations is
the same under both constitutional provisions. Upton v. State, 904 N.E.2d 700
(Ind. Ct. App. 2009), trans. denied.
[9] The practice of releasing prisoners on parole has become an integral part of our
penological system—not as an ad hoc exercise of clemency but as an
established variation on imprisonment. Harris v. State, 836 N.E.2d 267 (Ind. Ct.
App. 2005), trans. denied. The primary purpose of parole is to help offenders
reintegrate into society as constructive individuals without being confined for
the full term of their sentence. Id. To accomplish this goal, offenders placed on
parole are subjected to specific conditions that restrict their activities
substantially beyond ordinary restrictions imposed by law on individual
citizens. Id.
[10] The parole board has the power to determine whether prisoners should be
released on parole and, if so, under what conditions. Ind. Code §§ 11-13-3-3, -4
(2012); Harris, 836 N.E.2d 267. A prisoner is released on parole only upon his
agreement to these conditions, and the parole agreement is a contract between
the prisoner and the State by which the parolee is bound. Harris, 836 N.E.2d
267. The board may also impose additional conditions beyond the standard
conditions as long as they are reasonably related to the parolee’s successful
reintegration into the community and not unduly restrictive of a fundamental
right. Ind. Code § 11-13-3-4(b).
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 4 of 6 [11] Here, the additional parole condition for Cormack is his participation in the
SOMM program. This very question was addressed in Patrick v. Butts, 12
N.E.3d 270 (Ind. Ct. App. 2014). The Patrick panel explained:
The Parole Board is allowed to impose conditions that are “reasonably related to the parolee’s successful reintegration into the community,” Ind. Code § 11–13–3–4(b), and that subsection was in place when Patrick was convicted [in 1991]. Our Supreme Court has found that the SOMM program “is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control.” Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014). As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause. Id. at 271-72. We find this reasoning to be true in this case as well.
II. Habeas Corpus Claim [12] Cormack argues that his due process rights were violated because he was not
advised of the full consequences of his plea agreement, specifically his ten-year
mandatory parole.
[13] The purpose of a writ of habeas corpus is to determine the lawfulness of the
defendant’s detention and may not be used to determine collateral matters not
affecting the custody process. Hardley v. State, 893 N.E.2d 740 (Ind. Ct. App.
2008). A defendant is entitled to a writ of habeas corpus if he is unlawfully
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 5 of 6 incarcerated and entitled to immediate release. Randolph v. Buss, 956 N.E.2d 38
(Ind. Ct. App. 2011), trans. denied.
[14] We review the trial court’s decision on a habeas petition for an abuse of
discretion. Id. We do not reweigh the evidence, and we consider only the
evidence most favorable to the judgment and any reasonable inferences drawn
therefrom. Id.
[15] At the time relevant in this case, Indiana Code section 35-50-6-1(d) provided:
“When an offender (as defined in IC 5-2-12-4) completes the offender’s fixed
term of imprisonment, less credit time earned with respect to that term, the
offender shall be placed on parole for not more than ten (10) years.” Our
Supreme Court has held that a court is “not required to advise the defendant of
the parole consequences of his plea. The parole impact of a plea is neither a
constitutional right nor an advisement required by statute.” Fulmer v. State, 519
N.E.2d 1236, 1238 (Ind. 1988). Even if Cormack was not informed at his
sentencing that he would be placed on parole, he is not entitled to habeas relief
on such a claim.
Conclusion [16] For the reasons stated, we conclude the trial court did not err in dismissing
Cormack’s ex post facto claim and denying his habeas claim.
[17] Affirmed.
Barnes, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017 Page 6 of 6