Thomas Campbell v. Indiana Department of Correction (mem. dec.)

MEMORANDUM DECISION Mar 20 2015, 9:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Thomas Campbell Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Campbell, March 20, 2015

Appellant-Plaintiff, Court of Appeals Case No. 33A01-1407-MI-302 v. Appeal from the Henry Circuit Court Indiana Department of The Honorable Kit C. Dean Crane, Judge Correction,1

1 We note that Campbell’s Notice of Appeal named the State of Indiana as the appellee, but his Appellant’s Brief named the State of Indiana and the Indiana Department of Correction (“DOC”) as the respondent- appellee; the Attorney General filed an appearance and identified the DOC as the appellee, but its Appellee’s Brief identified the State of Indiana as the appellee. In the trial court proceedings, the parties and the trial court generally identified the DOC as the named defendant, either alone or in conjunction with the State of Indiana. We name the DOC as the appellee-defendant, pursuant to our Supreme Court’s direction in Bleeke v. Lemmon, 6 N.E.3d 907, 917 n.3 (Ind. 2014) (noting State may not be named as party-defendant in parolee’s suit, which alleged that DOC’s disciplinary sanctions for refusal to participate in mandatory sex offender program violated his constitutional rights, because Indiana Constitution precludes suits against State without State’s consent). See also Harp v. Ind. Dep’t of Highways, 585 N.E.2d 652, 661 (Ind. Ct. App. 1992)

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Appellee-Defendant. Cause No. 33C02-1312-MI-128

Kirsch, Judge. [1] Thomas Campbell, an inmate in the Indiana Department of Correction

(“DOC”), received disciplinary sanctions his refusal to participate in the

Indiana Sex Offender Management and Monitoring Program. Thereafter,

Campbell, pro se, filed a “Motion to Clarify the Constitutional Parameters of the

Indiana Sex Offender Monitoring and Management (SOMM) Program,” which

the trial court denied. On appeal, Campbell raises two issues that we

consolidate and restate as: whether the trial court properly denied relief to

Campbell. [2] We affirm.

Facts and Procedural History [3] On September 19, 1996, Campbell was convicted of Class B felony child

molesting and sentenced to twenty years. He is currently incarcerated in

DOC’s New Castle Correctional Facility. Pursuant to DOC’s Executive

Directive #12-53 (“the Executive Directive”), Campbell was required to

participate in the Indiana Sex Offender Management and Monitoring Program

(Department of Highways is state entity and naming it as party in caption was defect, but Department waived any objection by failing to file motion to dismiss).

Court of Appeals of Indiana | Memorandum Decision 33A01-1407-MI-302 | March 20, 2015 Page 2 of 11 (“SOMM program”), which is a court-approved sex-offender treatment program. The Executive Directive provides that the SOMM program is mandatory for all adult offenders with a history of a sex offense conviction. Offenders are advised in the Executive Directive that a failure to participate or complete the program shall result in disciplinary action. Specifically, the offender who refuses to participate is charged with a violation of Code 116 and, if found guilty of the Code 116 violation, shall be demoted to credit class III and shall be instructed to participate in the SOMM program again. If the offender again refuses to participate, he is charged with a Code 116 violation, and, if the evidence supports a finding of guilt, the offender shall be retained at credit class III, and 180 days of earned credit time shall be deprived, if available. In addition, an offender who refuses to participate in the SOMM program is deemed “NOT to demonstrate a pattern consistent with rehabilitation” and is disqualified from earning any additional earned credit time for completing educational, vocational, or substance abuse programs. Appellant’s App. at 31 (emphasis in original). Offenders who pleaded not guilty to, but were subsequently convicted of, the sexual offense charges may be temporarily exempted from participation in “the SOMM Program Phase II sex offender treatment program” if their conviction (not sentence) for that offense is in an appeal status or post-conviction relief status. Id. Court of Appeals of Indiana | Memorandum Decision 33A01-1407-MI-302 | March 20, 2015 Page 3 of 11 [4] In November 2013, Campbell refused to participate in one or more

requirement(s) of the SOMM program.2 As a result, he was charged with a

violation of Code 116. The following day, a disciplinary hearing was held, at

the conclusion of which Campbell was found guilty of the violation and

discipline was imposed, including, (1) disciplinary segregation, (2) loss of

privileges, including phone, (3) loss of 180 days of earned credit time, and (4)

demotion from credit class I to credit class III. Id. at 29. [5] On March 5, 2014, Campbell, pro se, filed with the trial court a “Motion to

Clarify the Constitutional Parameters of the Indiana Sex Offender Monitoring

and Management (SOMM) Program” (“Motion”). In his Motion, Campbell

asserted that the SOMM program was unconstitutional because components of

the program rose to the level of compulsion and incrimination prohibited by the

Fifth Amendment. Specifically, Campbell argued that the SOMM program:

(1) unconstitutionally compels an inmate to make incriminating admissions of

uncharged misconduct, including that which occurred prior to a conviction, and

thereby violates Fifth Amendment protections; and (2) extends a prisoner’s

sentence length if the prisoner refuses to participate in the program, by

demoting a prisoner’s credit class from credit class I to credit class III and

taking away earned credit time, which, Campbell claimed, punishes a prisoner

2 The record before us includes a “Conduct Summary,” which reflects that, in April and August 2011, Campbell lost privileges and was demoted in credit class based on “failure to participate in mandatory program,” although it is not clear whether those sanctions concerned a failure to participate in the SOMM program. Appellant’s App. at 32.

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“with a longer sentence for asserting his innocence or exercising the Fifth

Amendment privilege.” Id. at 17. Campbell also argued in his Motion that the

SOMM program was unconstitutional because in the third phase of the

program, offenders must submit to polygraph tests, the results of which might

be reported to law enforcement agencies without immunity for the offender,

thus potentially subjecting the offender to subsequent prosecutions. Campbell’s

Motion requested that the trial court “grant him relief from the SOMM

program,” namely overturn the disciplinary sanctions that DOC imposed upon

him, and he also urged the trial court to “clarify the constitutional parameters of

the [] SOMM program.” Id. at 21. [6] On May 7, 2014, the State filed a response in opposition to Campbell’s Motion,

asserting that the issue raised by Campbell concerning the constitutionality of

the SOMM program, both on its face and as applied to him, had been recently

addressed by the Indiana Supreme Court in Bleeke v. Lemmon, 6 N.E.3d 907

(Ind. 2014), which was decided on April 16, 2014, after Campbell had filed his

Motion. On May 16, 2014, the trial court denied Campbell’s Motion, finding

that Bleeke addressed the constitutional parameters of the SOMM program and

that the SOMM program was constitutional on its face and as applied to

Campbell.3 Campbell now appeals.

3 On June 6, 2014, Campbell filed a motion to correct error. He argued that the DOC’s disciplinary action “deprived” him of a “liberty interest,” and he asked that he be restored to credit class I and all of his earned credit time (180 days) be returned to him. Id. at 67. On June 16, 2014, the trial court issued a written entry

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Discussion and Decision4 [7] Campbell argues that the trial court erred by failing to address the

constitutionality of the SOMM program as raised in his Motion and maintains

that the trial court should have ordered the DOC to restore him to credit class I

and return his earned credit time. Where, as here, Campbell raised a

constitutional challenge to the SOMM program, we will review de novo the trial

court’s denial of his Motion. See Baker v. State, 747 N.E.2d 663, 636 (Ind. Ct.

App. 2001) (constitutional challenge is matter of law and is reviewed de novo),

trans. denied. [8] Initially, we note, Campbell’s appellate brief fails to include a statement of the

applicable standard of review to guide our decision, and it thereby fails to

comply with our Rules of Appellate Procedure. Ind. Appellate Rule 46(A)(8)(b)

(argument must include for each issue concise statement of applicable standard

stating that Campbell’s motion to correct error was a “non-conforming pleading,” and the court did not consider it. Id. at 74.

4 As the State observes in its brief, the general rule is that DOC inmates have no common law, statutory, or federal constitutional right to review of DOC disciplinary decisions in state courts, and a petition for habeas corpus is the proper avenue to make that challenge. Appellee’s Br. at 4; Holmes-Bey v. Butts, 20 N.E.3d 578, 581 (Ind. Ct. App. 2014). However, as the State further recognizes, state courts do have jurisdiction when an allegation is made that the DOC violated an inmate’s constitutional rights. Holmes-Bey, 20 N.E.3d at 581 (citing State v. Moore, 909 N.E.2d 1053, 1057 (Ind. Ct. App. 2009) (state trial court possessed subject matter jurisdiction to review inmate’s deprivation of credit time and privileges where inmate claimed that sanctions and deprivation occurred because he refused to participate in SOMM program on basis that it violated his Fifth Amendment right against self-incrimination), trans. denied). Campbell’s claims, like those of the defendant in Moore, allege a violation of the Fifth Amendment, and the trial court had subject matter jurisdiction to rule on them.

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of review). By failing to provide a statement of the applicable standard of

review, Campbell has waived any argument that the trial court committed error

when it denied his Motion. See Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct.

App. 2001) (noting that failure to comply with Indiana Appellate Rule

46(A)(8)(b), which requires that appellant’s brief include statement of applicable

standard of review for each issue, results in waiver of that issue for appellate

review). Waiver notwithstanding, we discern no trial court error. [9] In his Motion, Campbell argued that the SOMM program is unconstitutional

because it includes elements of compulsion and incrimination, in violation of

his Fifth Amendment rights. He asked the trial court to determine the

constitutional parameters of the SOMM program and grant him relief by

returning his earned credit time and class credit I inmate classification. The

trial court denied Campbell’s Motion, based on Bleeke, which was decided

shortly after Campbell filed his Motion with the trial court. In Bleeke, our

Supreme Court extensively and thoroughly addressed the constitutional

concerns with the SOMM program that Campbell raised in his Motion, and

which he presents to us now on appeal, and ultimately, the Bleeke Court found

“no constitutional flaw in [the SOMM program].” 6 N.E.3d at 912. [10] In reaching its decision, the Bleeke Court considered the requirements and

constitutional implications of the SOMM program, and it began its analysis by

first explaining its history:

Indiana’s SOMM program was established in 1999 as a statewide program aimed at reducing the recidivism of offenders convicted of sex

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crimes. It is managed by the DOC[.] . . . Offenders are targeted for the SOMM program based on their conviction for certain specified sex-related offenses[.] [11] Id. at 923. There are three phases to the SOMM program. The first is a

mandatory consent and assessment phase that occurs while a targeted offender

is incarcerated, typically upon entry into the prison system. Those who do

consent and participate are assessed and evaluated for their recidivism risk,

treatment needs, and other issues that would impact their participation in the

program. A failure to participate in the SOMM program is a violation of the

DOC’s disciplinary code. In the second phase, offenders participate in a

treatment program based on their particular recidivism risk; the programs are

risk-based, sex-offender-specific, or based on psychoeducational needs. Id. at

924. The third phase of the SOMM program is available for parolees, but not

probationers, and “is designed to support and optimize the process of re-entry

into the community[.]” Id. A team of professionals is assigned to the parolee,

consisting of a parole agent, a district coordinator, a treatment provider, and a

polygraph examiner. The parolee is subject to “intensive” conditions and

stipulations that the parolee must follow. Id. The mandatory polygraph

examinations require an offender to disclose sexual history, including behaviors

that would be criminal offenses, with no immunity for the disclosures. [12] Bleeke was on parole at the time he filed his request for declaratory judgment

and petition for injunction with the trial court. He argued on appeal that the

SOMM program’s requirement that he admit his guilt for the offense of which

he was convicted, even though he consistently maintained his innocence,

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coupled with the fact that failure to complete the program constituted a parole

violation for which he could lose credit time or other prison privileges,

constituted a violation of his Fifth Amendment privilege against self-

incrimination. He also argued that the requirement that he disclose all sexual

behaviors under a mandatory polygraph program, with no immunity for the

disclosures, was a Fifth Amendment violation. Our Supreme Court, however,

rejected those claims. Id. at 935, 939. [13] In so doing, the Bleeke Court acknowledged, “It seems clear that the potential

for self-incrimination is present,” given that the program “is primarily aimed at

treatment” but includes “a degree of investigatory intent.” Id. at 925, 927.

However, the Court determined, the SOMM program’s requirements do not

compel an offender to yield his or her Fifth Amendment privilege. The Court

recognized that the statutorily created good time credits and classifications, the

purpose of which are to encourage inmates of penal institutions to behave well,

are not constitutionally required. Id. at 933. “[T]here is no automatic, blanket,

or unqualified entitlement to . . . favorable credit status, or any other prison

privileges[.]” Id. at 934 n.20. Furthermore, our legislature has provided that

those privileges may be revoked for an inmate’s refusal to participate in the

SOMM program. Indiana Code section 35-50-6-5 states in pertinent part:

A person may . . . be deprived of any part of the credit time the person has earned . . . [i]f the person is a sex offender (as defined in IC 11-8-8- 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.

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Ind. Code § 35-50-6-5(a)(6).5 Significantly, contrary to Campbell’s claim on

appeal, removal or reduction in an inmate’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 reduces the availability of an early

release date. Bleeke, 6 N.E.3d at 934. Simply put, pursuant to Bleeke, the State

is permitted to present all SOMM inmates with a constitutionally permissible

choice:

participate in the 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 [the offender] had been lawfully convicted. Id. at 934. The Bleeke Court rejected the proposal that an offender “may have

his cake and eat it too” by refusing to participate in the SOMM program, which

is aimed at rehabilitation, but yet still receive full benefits of a shortened

sentence from favorable credit class or credit time. Id. at 935. [14] The Court in Bleeke likewise rejected Bleeke’s claim, also raised by Campbell,

that the third phase of the SOMM program, requiring parolees to submit to

polygraph tests and make disclosures of sexual conduct, is unconstitutional. An

offender’s early release from imprisonment to parole is a privilege afforded to

the offender for compliance with prison rules and policies, including the

5 We note that before an inmate may be deprived of earned credit time, he or she must be granted a hearing to determine guilt or innocence and is entitled to other procedural safeguards, such as twenty-four hour notice and opportunity to present testimony and evidence, and a written explanation supported by evidence. Ind. Code § 35-50-6-5(b).

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SOMM program. Id. at 938. Once on parole, an offender must participate in

the SOMM program or else face the potential consequence of returning to

prison to serve out the full term, but non-participation would not extend the

fixed term nor would it take away previously earned credit time. Id. at 939.

Thus, contrary to Campbell’s assertion, the SOMM program does not extend

incarceration and thereby violate a defendant’s Fifth Amendment privilege.

Just as the Bleeke Court found with respect to the DOC’s ability to reduce or

remove credit time or demote credit classification in the second phase of the

SOMM program, a parole board may, during the third phase of the SOMM

program, offer a constitutionally permissible choice to a convicted offender:

comply with parole requirements, or serve out the full sentence that was

imposed pursuant to lawful conviction. Id. [15] Campbell has failed to establish that the trial court committed any error when it

determined that the SOMM program is constitutional, on its face and as applied

to him, and denied his Motion. [16] Affirmed.

Friedlander, J., and Crone, J., concur.

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