MEMORANDUM DECISION FILED Jun 15 2016, 7:15 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Timothy E. Strowmatt Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana
Aaron T. Craft Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy E. Strowmatt, June 15, 2016 Appellant-Petitioner, Court of Appeals Case No. 33A04-1505-MI-498 v. Appeal from the Henry Circuit Court Indiana Department of The Honorable Kit C. Dean Crane, Correction, et al, Judge Appellee-Plaintiff. The Honorable Peter D. Haviza, Special Judge Trial Court Cause No. 33C02-1207-MI-71
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 1 of 19 [1] Timothy Strowmatt, an inmate at the New Castle Correctional Facility,
initiated this lawsuit against a number of State officials1 (collectively, the State),
challenging various aspects of laws passed to govern post-conviction conduct of
sex offenders as unconstitutional violations of his due process rights and the
prohibition against ex post facto laws. The trial court granted summary
judgment in favor of the State on all of Strowmatt’s claims. On appeal,
Strowmatt, pro se, presents two issues for our review, which we restate as the
following:
1. Was Strowmatt afforded sufficient notice that his convictions for attempted criminal confinement triggered application of the Indiana Sex Offender Registration Act (INSORA)?
2. Is INSORA void for vagueness as applied to him given that his convictions for attempted criminal confinement constitute a sex offense without a showing of a specific intent to commit a sexual act?
3. Is the 2006 amendment to Ind. Code § 35-50-6-5, which authorizes the deprivation of credit time or reduction of credit class if an offender refuses to register as a sex offender or refuses to participate in the Indiana Sex Offender Monitoring and Management (INSOMM) program, an unconstitutional ex post facto law as applied to Strowmatt?
1 Strowmatt named Bruce Lemmon, Commissioner of the Indiana Department of Correction (DOC), Thor Miller, Chairman of the Indiana Parole Board, and Keith Butts, Superintendent of the New Castle Correctional Facility, as respondents.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 2 of 19 [2] We affirm.
Facts & Procedural History2
[3] Strowmatt was born on May 12, 1963. On or about January 27, 1992,
Strowmatt committed the crime of child molesting, a Class C felony, against a
twelve-year-old child. Strowmatt was convicted of that crime and sentenced to
four years, with one year executed and three years suspended to probation. On
or about May 20, 1994, while still on probation, Strowmatt molested a six-year-
old child and was charged with child molesting as a Class B felony. He was
convicted of this crime3 and sentenced to twenty years, with ten years executed
and ten years suspended.4 Additionally, Strowmatt’s probation for the 1992
conviction was revoked, and the trial court ordered the sentence for the 1994
conviction be served consecutive to the balance of the sentence imposed in
1992. Upon his release to probation in December 2002, Strowmatt was
required to register annually as a sex offender.
2 Strowmatt provided this court with a minimal record in support of his appellate arguments. The State filed an Appendix of Appellees to supplement Strowmatt’s appendix. We have pieced together the facts and procedural history from the appendices submitted by the parties. Because the underlying facts are not in dispute, we relied in large part on the facts as found by the trial court and set forth in its summary judgment order. 3 Strowmatt’s conviction was affirmed by this court on direct appeal. See Strowmatt v. State, 686 N.E.2d 154, 159 (Ind. Ct. App. 1997). 4 In an appeal from the denial of post-conviction relief, this court noted that the trial court ordered “imprisonment as a condition of probation for the opportunity of treatment that could possibly be available by the time the term of probation arrived.” See Strowmatt v. State, 779 N.E.2d 971, 976 (Ind. Ct. App. 2002). This court further noted the trial court’s concern that “until the proper treatment was available, society needed to be protected.” Id.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 3 of 19 [4] On or about April 5, 2004, Strowmatt tried to grab a nine-year-old child and
pull the child into his vehicle. In a separate, unrelated incident the same day,
Strowmatt offered an eight-year-old child money to get into his car. The State
charged Strowmatt under Cause No. 71D03-0404-FC-119 with two counts of
attempted criminal confinement as Class C felonies, one count for each
incident. The State also alleged Strowmatt to be a habitual offender. Following
a bench trial, Strowmatt was found guilty as charged and adjudged to be a
habitual offender. On January 5, 2005, the trial court sentenced Strowmatt to
an aggregate term of twenty-eight years. Strowmatt is currently incarcerated at
the New Castle Correctional Facility.
[5] At some point, Strowmatt was advised by the DOC that he was classified as
“F5”5 due to his status as a sex offender. Appellant’s Appendix at 20. On
October 27, 2010, Strowmatt challenged his classification. The DOC
responded, informing him that his classification was based upon his prior felony
convictions for child molesting. On November 2, 2010, Strowmatt asked for an
explanation of how his most recent convictions for attempted criminal
confinement warranted such classification. The DOC responded, again
informing him that “‘your prior crimes make you an F5. Sex offenses stay with
you.’” Id. On December 28, 2010, Strowmatt again appealed his classification.
5 The record indicates that an F5 classification means that an inmate is ineligible for work release or minimum security housing, among other alternatives to incarceration offered by the DOC.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 4 of 19 The DOC reaffirmed that he was “‘classified correctly based on current
criteria.’” Id. at 21.
[6] On March 1, 2011, the DOC indicated that Strowmatt’s classification was due
to current and prior offenses. The Supervisor of Classification approved the
decision regarding Strowmatt’s classification and indicated “‘pending transfer
to NCF for [IN]SOMM.’” Id. at 21. On March 10, 2011, Strowmatt informed
the DOC that he would not participate in INSOMM until all legal process was
complete. The following day, Strowmatt appealed the transfer decision.
Strowmatt argued that “under current policy consideration, criminal
confinement cases must be reviewed on a case by case basis. This is an
‘attempt.’ It does not meet the same criminal elements as an actual
confinement case. Therefore, it cannot warrant a ‘sex offense’ or denial of work
release/minimum security housing.” Id. Strowmatt asserted that his “sex
offender status must be removed.” Id. On March 29, 2011, Strowmatt’s
appeal was denied. The DOC noted that “‘[p]er central office, we are to submit
all sex ofds to NCF IQ for [IN]SOMM.’” Id.
[7] Strowmatt initiated this lawsuit in July 2012 in the Henry Circuit Court. In
November 2012, he filed five separate pro se motions for declaratory and
injunctive relief. The State filed a motion to strike, challenging the procedural
manner in which Strowmatt asserted his claims. During this time, Strowmatt
requested a change of judge, which resulted in the appointment of the
Honorable Peter Haviza of Randolph Superior Court as Special Judge. Judge
Haviza addressed the procedural irregularities by striking the motions filed by
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 5 of 19 Strowmatt, but affording him ninety days to file a single complaint that
complied with the Indiana Trial Rules. On January 10, 2014, Strowmatt filed a
five-count, pro se complaint for declaratory and injunctive relief. Generally,
Strowmatt challenged multiple aspects of the laws and policies governing post-
conviction conduct of sex offenders claiming that they violate his due process
rights to notice or violate Indiana’s prohibition against ex post facto laws.
[8] On July 31, 2014, the State filed a motion for summary judgment. Strowmatt
filed his own motion for summary judgment five days later. On September 3,
2014, Strowmatt filed his response to the State’s motion for summary judgment.
On September 15, the State filed a reply to Strowmatt’s response as well as its
response to Strowmatt’s summary judgment motion. At a subsequent
telephonic pre-trial conference, the trial court permitted Strowmatt to reply to
the State’s response to his motion for summary judgment. The State offered no
argument, but rather agreed to rely on its written submissions for purposes of
summary judgment. On April 27, 2015, the trial court entered its order
granting summary judgment in favor of the State on all of Strowmatt’s claims.
Strowmatt timely filed his notice of appeal. Additional facts will be provided as
necessary.
Discussion & Decision
[9] In 1994, our legislature enacted INSORA, which identifies certain crimes that
trigger its application and requires persons convicted of those specified crimes
to register as “sex offender[s].” Act of March 2, 1994, Pub.L. No. 11-1994, § 7
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 6 of 19 (codified as Ind. Code §§ 5-2-12-1 through -13). When initially enacted, eight
crimes triggered status as an “offender.” I.C. §§ 5-2-12-4, -5 (1994). Since its
inception, INSORA has been amended numerous times, resulting in an
expansion of the number of crimes triggering sex-offender status. See Lemmon v.
Harris, 949 N.E.2d 803, 805-08 (Ind. 2011) (discussing amendments); Wallace v.
State, 905 N.E.2d 371, 375-77 (Ind. 2009) (same). As is pertinent here, criminal
confinement where the victim is less than eighteen years of age was added to
INSORA as a triggering offense in 1998. See P.L. No. 56-1998, § 6, 1998 Ind.
Acts 917, 923. Attempt was added in 2001. See P.L. No. 238-2001, § 4, 2001
Ind. Acts 1901, 1905-06. In 2006, INSORA was moved from Title 5 to Title
11. The recodification of INSORA at Ind. Code Ch. 11-8-8 also included
amendments to certain provisions therein, but attempted criminal confinement
of a child continued to be identified as a “sex offense”6 triggering application of
INSORA.
[10] On January 4, 2000, the DOC Commissioner, in keeping with the DOC’s goal
of “maintaining public safety,” issued Executive Directive # 00-01, which
concerned establishment of INSOMM.7 Appellees’ Appendix at 64. The goal of
6 I.C. § 11-8-8-5.2 defines “sex offense” as an offense listed in I.C. § 11-8-8-4.5(a). This is the same as it was under the previous version found at I.C. § 5-2-12-4(a)(12) and (13), which identified attempted criminal confinement as a “sex and violent offense[].” The circumstances of Strowmatt’s convictions for criminal confinement establish the required statutory elements for attempted criminal confinement delineated as a “sex offense,” (i.e., victim less than eighteen years of age). 7 The INSOMM program was designed as a three-phase continuum. Phase I of INSOMM is a consent and assessment phase conducted while the offender is incarcerated, usually upon arrival. In Phase II, targeted offenders undergo a management program based on their risk of recidivism, which includes group therapy sessions. Phase III begins once a targeted offender is released to parole, and it requires the offender to attend
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 7 of 19 INSOMM then and now is “to reduce the recidivism of offenders convicted of
sex crimes” by providing “sex offender specific programs, risk assessment and
intensive specialized parole supervision on a statewide basis.” Id.
[11] In April 2004, when Strowmatt committed his most recent crimes, Ind. Code §
35-50-6-5(a) provided that a prisoner could be deprived of any part of the credit
time he had earned and demoted in credit class for violating one or more rules
of the DOC, though a violation of a condition of parole could not form the
basis of a deprivation. In 2006, the legislature added two provisions to I.C. §
35-50-6-5(a), effective July 1, 2006, explicitly authorizing the deprivation of
credit time if a sex offender refused to register as a sex offender before being
released from prison or refused to participate in a sex offender treatment
program offered by the DOC (i.e., INSOMM) while the offender was
incarcerated. I.C. § 35-50-6-5(a)(5), (6).
[12] On July 27, 2006, shortly after the effective date of the amendment to I.C. § 35-
50-6-5, the DOC Commissioner issued Executive Directive # 06-30, which
changed the eligibility requirements for INSOMM. This directive provided that
“[r]ecent changes made by the Indiana General Assembly gives the Department
of Correction the authority to mandate that offenders convicted of sex crimes
participate in an approved treatment program for sex offenders.” Appellees’
Appendix at 56. The directive further provided that “[a]ny offender with a
and participate in sex offender treatment in the community and to take a polygraph examination at least every six months.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 8 of 19 history of a sex offense conviction8 shall be advised that [INSOMM] is a
mandatory program and that failure to participate in the program or failure to
complete the program successfully shall result in a disciplinary action.” Id. In
turn, a disciplinary action could result in a loss of earned credit time and/or
demotion in credit class. As noted above, Strowmatt was advised that his
current crimes as well as his past crimes qualified as sex offenses. On account
of his status as a sex offender, the DOC classified Strowmatt as F5 and notified
him that he was required to participate in INSOMM.
[13] As an initial matter, we note that Strowmatt is proceeding pro se on appeal.
Pro se litigants are held to the same standard as trained counsel and are
required to follow procedural rules. Smith v. State, 38 N.E.3d 218, 220 (Ind. Ct.
App. 2015). “This has consistently been the standard applied to pro se litigants,
and the courts of this State have never held that a trial court is required to guide
pro se litigants through the judicial system.” Id. We address Strowmatt’s
arguments as best as we can discern them.
[14] Our standard of review of summary judgment appeals is well established:
When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter
8 The notification form for INSOMM participation that was given to eligible offenders provided that it applied to “all offenders who have been convicted of a sex offense, as defined by the Indiana Code.” Id. at 58.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 9 of 19 of law. In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact. The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous.
M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.
denied (citations and internal quotations omitted).
[15] “Where the facts are undisputed and the issue presented is a pure question of
law, we review the matter de novo.” Id. Likewise, questions concerning the
constitutionality of a statute are reviewed de novo. Zoeller v. Sweeney, 19 N.E.3d
749, 751 (Ind. 2014). Here, the facts are undisputed. Strowmatt’s arguments
present pure questions of law. Indeed, generously construed, Strowmatt argues
that INSORA violates his due process rights and is unconstitutionally vague as
applied to his conviction for attempted criminal confinement. He also argues
that the 2006 amendment to I.C. § 35-50-6-5 violates the ex post facto clause.
Notice
[16] Strowmatt first argues that the trial court erred in concluding that his due
process rights were not violated because he was afforded sufficient notice that
his conviction for attempted criminal confinement was identified as a “sex
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 10 of 19 offense” under INSORA. Strowmatt maintains that Ind. Code § 35-34-1-
2(a)(3)9 requires that the charging information allege that he violated INSORA.
Without reference to INSORA in his charging information, Strowmatt asserts
that he had no way of knowing that INSORA was triggered upon his
conviction for attempted criminal confinement.
[17] The purpose of a charging document is to give the defendant particular notice
of the crimes with which he is charged during the applicable statute of
limitations period so that he can prepare a defense. Bei Bei Shuai v. State, 966
N.E.2d 619, 626 (Ind. Ct. App. 2012), trans. denied. Here, Strowmatt was
charged with violating the criminal statutes proscribing attempted criminal
confinement of a child, and the charging information referenced the statutory
provisions relating thereto. Strowmatt was not charged with violating
INSORA. Other than his bare assertion, Strowmatt does not cite any authority
to support a determination that the State was also required to allege that a
conviction for attempted criminal confinement would trigger application of
[18] In any event, we note that as pertinent to Strowmatt’s claim, the provisions of
INSORA were triggered by the fact of his conviction for attempted criminal
confinement; they were not the basis for the conviction. A reference to
9 I.C. § 35-34-1-2 sets forth the requirements for an indictment or information. Strowmatt’s argument is based upon the language of I.C. § 35-34-1-2(a)(3), which provides that an indictment or information “shall be in writing and allege the commission of an offense by . . . citing the statutory provision alleged to have been violated.”
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 11 of 19 INSORA would need to be made only if an offender were charged with
violating an INSORA requirement such as the registration requirement. 10
[19] Moreover, as the trial court accurately determined, at the time Strowmatt
committed his most recent offense, INSORA plainly set out that an individual
who committed the crime of attempted criminal confinement and the victim
was less than eighteen years of age was an “offender” for purposes of INSORA.
I.C. § 5-2-12-4(a)(12), (13) (Supp. 2013). Strowmatt’s contention that he should
not be required to know the law because he is not a lawyer ignores long-settled
jurisprudence in Indiana that “every man is presumed to know the laws of the
country in which he dwells.” Marmont v. State, 48 Ind. 21, 31 (1874).
Ignorance of the law is no defense. Dewald v. State, 898 N.E.2d 488, 493 (Ind.
Ct. App. 2008) (citing Marmont, 48 Ind. at 31) (“ignorance of the law excuses
no man”); compare Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004)
(noting that pro se litigants are held to the same standards as trained counsel),
trans. denied. For these same reasons, we also reject his argument that he had
no notice that a conviction for attempted criminal confinement of a child is a
sex offense even though the offense does not require proof of a sex act. We find
no error in the trial court’s conclusion that Strowmatt had adequate notice that
his conviction for attempted criminal confinement qualified him as an offender
for purposes of INSORA.
10 An offender who fails to register under INSORA commits a Level 6 or a Level 5 felony. See, e.g., I.C. § 11- 8-8-17.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 12 of 19 Vagueness
[20] Strowmatt also argues that INSORA is void for vagueness as applied to him.
His argument is based on his belief that attempted criminal confinement cannot
be a sex offense without a showing that there was a specific intent to commit a
sexual act. Strowmatt directs us to Brown v. State, 868 N.E.2d 464 (Ind. 2007),
in which our Supreme Court held that a portion of the criminal confinement
statute was unconstitutionally vague because the terms “fraud” and
“enticement” failed to give adequate notice as to what conduct was proscribed
and also encouraged arbitrary enforcement. Strowmatt’s reliance on Brown is
misplaced as he was not convicted under the part of the statute held to be
unconstitutionally vague.
[21] In any event, we note that due process requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement. Brown, 868 N.E.2d at 467. We find
nothing vague or arbitrary about INSORA when Strowmatt committed his
crimes in April 2004. The legislature chose to classify attempted criminal
confinement of a child as a sex offense triggering application of INSORA.
INSORA unambiguously required such offenders to register under INSORA,
and registration for life was required if the offender was over eighteen years of
age and the victim was under twelve years of age. See I.C. § 5-2-12-4(a)(12),
(13), -5(a), (b), -(13)(c) (Supp. 2003).
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 13 of 19 Ex post facto
[22] Strowmatt challenges the 2006 amendment to I.C. § 35-50-6-5 as being in
violation of ex post facto prohibitions of both the Indiana and federal
Constitutions. When a statute is challenged as an alleged violation of the
Indiana Constitution, our standard of review is well settled. Every statute
stands before us clothed with the presumption of constitutionality until that
presumption is clearly overcome by a contrary showing. State v. Rendleman, 603
N.E.2d 1333, 1334 (Ind. 1992). The party challenging the constitutionality of
the statute bears the burden of proof, and all doubts are resolved against that
party. Id.
[23] The United States Constitution provides that “[n]o State shall . . . pass any . . .
ex post facto Law.” U.S. Const. art. I, § 10. The Indiana Constitution provides
that “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art. I, § 24.
An ex post facto law applies retroactively to disadvantage an offender’s
substantial rights. Weaver v. Graham, 450 U.S. 24, 29 (1981); Collins v. State, 911
N.E.2d 700, 712 (Ind. Ct. App. 2009), trans. denied. In other words, an ex post
facto law increases the penalty by which a crime is punishable or alters the
definition of criminal conduct. Cal. Dep’t of Corr. V. Morales, 514 U.S. 499, 506
n.3 (1995); Collins, 911 N.E.2d at 712.
[24] In analyzing an ex post facto claim, the United States Supreme Court applies
the intent-effects test. Smith v. Doe, 538 U.S. 84, 105-06 (2003). The first step is
to determine if the legislature meant the statute to establish civil proceedings.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 14 of 19 Id. at 92. If the legislature intended to impose punishment, the inquiry ends
because punishment results. Id. If, however, the court concludes that the
legislature intended a non-punitive regulatory scheme, then the court must
further examine whether the statutory scheme is so punitive in effect as to
negate that intention thereby transforming what had been intended as a civil
regulatory scheme into a criminal penalty. Id. In assessing a statute’s effects,
courts should consider seven factors listed in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69 (1963). The seven factors are:
“[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.”
Wallace, 905 N.E.2d at 379 (quoting Mendoza-Martinez, 372 U.S. at 168-69).
Our Supreme Court has held that the intent-effects test provides the appropriate
analytical framework for analyzing ex post facto claims under the Indiana
Constitution. Wallace, 905 N.E.2d at 378.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 15 of 19 [25] We begin by noting that Indiana’s credit time assignments11 and the grounds for
reduction or deprivation are established by statute. Strowmatt challenges I.C. §
35-50-6-5, which provides, in pertinent part, as follows:
(a) A person may, with respect to the same transaction, be deprived of any part of the educational credit or good time credit the person has earned for any of the following:
***
(5) If the person is a sex or violent offender (as defined in IC 11-8-8-4.5) and refuses to register before being released from the department as required under IC 11-8-8-7.
(6) If the person is a sex offender (as defined in IC 11-8-8- 4.5) and refuses to participate in a sex offender treatment program specifically offered to the sex offender by the department of correction while the person is serving a period of incarceration with the department of correction.
Strowmatt’s specific challenge is that the 2006 statutory amendment adding
(a)(5) and (6) went into effect two years after his conviction, and thus, he
cannot be required to participate in the INSOMM program such that his refusal
to do so results in him being deprived of earned credit time. The basis for
Strowmatt’s claim is that deprivation of credit time constitutes a punishment.
11 Good time credits and classifications are not constitutionally required. See Bleeke, 6 N.E.3d at 933.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 16 of 19 [26] As our Supreme Court has noted,
when the purpose of [INSOMM] is to reduce the recidivism rate of sex offenders who are released back into society, providing prison officials with the option (subject to due process protections) of reducing or revoking credit time for convicted offenders who refuse to fully participate in the program while incarcerated—and thus not returning them back into society as quickly because they are not rehabilitated—is “a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent persons, most often children.”
Bleeke v. Lemmon, 6 N.E.3d 907, 933-34 (Ind. 2014) (quoting McKune v. Lile, 536
U.S. 24, 48 (2002)). Our Supreme Court further noted, albeit in a slightly
different context, but equally applicable here, that the State is permitted to
present all INSOMM inmates “with a constitutionally permissible choice:
participate in the [IN]SOMM program and maintain a more favorable credit
status and/or privileges within the prison system or a favorable assignment in a
community transition program, or refuse to participate and instead serve out the
full term for which he had been lawfully convicted.” Id. at 934.
[27] Deprivation of credit time is the consequence of failure to comply with a
requirement of prison life; it is not a punishment for the crime that landed the
person in prison. Thus, contrary to Strowmatt’s claim on appeal, removal or
reduction of a sex offender’s earned credit time or credit classification does not
extend an offender’s period of incarceration beyond that of his or her original
sentence; rather, it merely reduces the availability of an early release date.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 17 of 19 [28] We also observe that the challenged statutory provisions do not mandate that a
sex offender be deprived of earned credit time. It is by DOC rule, which was
implemented after the amendment to I.C. § 35-50-6-5 and two years after
Strowmatt committed his most recent crimes, that sex offenders are required to
participate in INSOMM. The DOC rule mandates that a sex offender’s refusal
to participate in the program will result in discipline, which can take the form of
deprivation of good time credit or a demotion in credit class. Discipline is
designed to implement the prison’s administrative rules. A sex offender can
avoid discipline by fully participating in INSOMM. The DOC is implementing
its rule by offering a constitutionally permissible choice to a lawfully convicted
offender: comply with DOC rules or serve out the full sentence received as a
result of your lawful conviction.
[29] It is clear that in amending I.C. § 35-50-6-5, the legislature did not intend to
impose punishment. The purpose of the statute is to encourage sex offenders to
participate in INSOMM. In considering the seven factors for assessing the
statute’s effect, it is evident that the sanction does not impose a restraint greater
than that which was proscribed for the underlying conviction, mandatory
participation in INSOMM is not punishment, there is no requirement for a
finding of scienter, the behavior to which the statute applies (i.e., refusal to
attend INSOMM) is not a crime, it advances a non-punitive interest in that it
seeks to encourage sex offenders to participate in a program designed to
rehabilitate and help reintegrate them back into society, and it clearly is not
excessive. In short, the effect of the DOC rule, which is based on I.C. § 35-50-
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 18 of 19 6-5, is not punitive. We therefore conclude that the 2006 amendments to I.C. §
35-50-6-5 do not violate the ex post facto clause.
[30] In summary, Strowmatt was afforded adequate notice that his convictions for
attempted criminal confinement of a child triggered application of INSORA
and that his conviction was deemed a sex offense thereunder. Also, the 2006
amendment to I.C. § 35-50-6-5 is not an unconstitutional ex post facto law.
[31] Judgment affirmed.
[32] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016 Page 19 of 19