Bleeke v. Lemmon

Citation6 N.E.3d 907
Decision Date16 April 2014
Docket NumberNo. 02S05–1305–PL–364.,02S05–1305–PL–364.
PartiesDavid BLEEKE, Appellant (Plaintiff below), v. Bruce LEMMON, in his Capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; Virgil R. Madden, as Vice Chairman of the Indiana Parole Board; Randall P. Gentry, as a Member of the Indiana Parole Board; Valerie J. Parker, as a Member of the Indiana Parole Board; Charles F. Miller, as a Member of the Indiana Parole Board; Mia Kelsaw, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2; Damita Vanlandingham, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2; Susan Feasby, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2, Appellees (Defendants below).
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Daniel G. McNamara, Patrick L. Proctor, Fort Wayne, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, David A. Arthur, Stephanie L. Rothenberg, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellees.

On Petition to Transfer from the Indiana Court of Appeals, No. 02A05–1201–PL–25

DAVID, Justice.

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.

Facts and Procedural History

On January 31, 2005, David Bleeke was convicted of residential entry and attempted criminal deviate conduct in Allen County, Indiana, and sentenced to ten years in the Indiana Department of Correction. His victim was an adult woman who was, at the time of the crime, over the age of twenty-one. Bleeke was incarcerated until March 19, 2008, when he was released to a community transition program. Bleeke completed the community transition program on April 24, 2009, and was released to statutorily mandated parole. He is to remain on parole until 2015.

Bleeke's Parole Conditions

The conditions of Bleeke's parole were spelled out in a standardized form initially provided to him before his assignment to the community transition program (and then again when he was released on parole): State Form 49108. Those conditions, among other things, required Bleeke to participate in, and successfully complete, a court-approved sex offender treatment program: the Indiana Sex Offender Management and Monitoring Program (“SOMM”). As part of the SOMM program, Bleeke was required to admit guilt for his offense; refusal to do so, or to otherwise deny responsibility for the offense, would result in him being unsuccessful in his treatment and would violate one of his parole conditions. He was also required to disclose any prior sex-related crimes by way of a “sexual history disclosure exam,” administered under a polygraph required by the parole conditions. The conditions relevant to these requirements provided that:

1. You shall enroll in, actively participate in and successfully complete an approved sex offender treatment program. You must maintain steady progress toward all treatment goals and may not change treatment providers without prior approval of your parole agent. Prompt payment of any fees is your responsibility.

2. You shall sign any waiver of confidentiality, release of information, or any other documents required to permit your parole agent and/or behavioral management or treatment providers to examine any and all records, to collaboratively share and discuss your behavioral management conditions, treatment progress, and parole stipulation needs as a team. This permission may extend to: (1) sharing your relapse prevention plan and treatment progress with your significant others and/or your victim and victim's therapist as directed by your parole agent or treatment provider(s), and (2) sharing of your modus operandi behaviors with law enforcement personnel.

21. You shall actively participate in offense specific mental health treatment program(s) approved and ordered by your parole agent at your own expense. You will contact the approved/designated provider within seven (7) days of release to parole to schedule an appointment unless an appointment was already scheduled prior to release on parole. Treatment is considered a behavioral management requirement of your parole and may include plethysmograph or polygraph testing or similar assessment/management tools. Termination from treatment or non-compliance with other required behavioral management requirements will be considered a violation of your parole release agreement. Subsequent treatment referrals, if any, will be at the direction of your parole agent. Should you request and be permitted to change treatment providers, stricter stipulations may be applied.

22. You shall participate in and complete periodic polygraph testing at the direction of your parole agent or any other behavioral management professionals who are providing treatment of [sic] assisting your parole agent in monitoring your compliance with your parole rules and special stipulations.

(App. at 159–60.)

As part of Bleeke's community transition program, in October 2008 Bleeke was ordered to take an “instant offense” polygraph, asking him if he committed the acts underlying his prior conviction. The examination process required Bleeke to sign a form stating that he requested the polygraph “without duress, coercion, force, intimidation, or promises of immunity,” authorizing the examiner to share the results with his probation office “and other applicable agencies for whatever purposes they may determine,” and acknowledging that the examiner was obliged to comply with “any and all State and Federal laws involving the administration of polygraph testing, which includes proper statutory disclosure and reporting requirements.” (App. at 148, 158.) Bleeke refused to sign the form, but offered to proceed with the polygraph examination anyway—instead the examiner stopped the examination and reported Bleeke's non-compliance. Bleeke was ordered to spend a weekend in jail for violating the conditions of the program.

Bleeke was again ordered to conduct an instant offense polygraph after his release from the weekend in jail; this time he signed the consent form and completed the examination. He stated that he completed the form this time because “I did not want to go to jail or back to prison.” (App. at 148.) The polygraph examiner concluded that Bleeke “ha[d] not told the entire truth concerning his alleged sexual contact.” (App. at 313.) As a result, his provider labeled him as uncooperative and concluded that because he “continues to maintain his innocence to the charges he was convicted for ... counseling for sex abuse issues is not appropriate.” (App. at 314.) Bleeke was then assigned to another provider, with whom he continues to participate, although he has been told that he cannot complete the SOMM program unless he admits his guilt.

Form 49108 also contained limitations on Bleeke's conduct aimed at restricting his contact with children and establishing intimate relationships with other adults. These conditions were imposed by the Indiana Parole Board without any prior individualized assessment of their applicability to Bleeke, but were ordered under the auspices of the Parole Board's authority to impose additional parole conditions that are “reasonably related to the parolee's successful reintegration into the community and not unduly restrictive of a fundamental right.” SeeInd.Code § 11–13–3–4(b) (2010). The conditions relevant to these restrictions provided that:

4. You shall not touch, photograph ( still or moving ), correspond with ( via letter or e-mail ), and/or engage in “small talk” or unnecessary conversation with any child, including your own, either directly or via third party, or attempt to do any of the preceding without written approval in advance by your parole agent in consultation with your treatment provider. You must never be in any vehicle or any residence with any child, including your own, even if other adult(s) is/are present, without written approval in advance by your parole agent in consultation with your treatment provider. You must report any inadvertent contact with children to your parole agent within twenty-four (24) hours of contact.

5. You must not reside, visit or be within one thousand (1,000) feet of public parks with playgrounds, pools, rides, and/or nature trails; schools, day care centers, public swimming pools, public beaches, theaters, or any other place where children can reasonably be expected to congregate.

15. You shall refrain from “cruising” activity, frequenting areas where potential victims can be encountered.

17. You shall not stay overnight with any adult and/or establish an intimate and/or sexual relationship with any adult without prior approval by your parole agent and treatment clinician. You must also report whether the person you are having a relationship with has children under the age of eighteen (18) and/or if children under the age of eighteen (18) reside in the person's home.

19. You shall not possess any items on your person, in your vehicle, in your place of residence, or as a part of your personal effects which attract children or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not attempt to persuade, whether by words or actions or both, a child to enter a vehicle, structure,...

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