Bleeke v. State, 02A05–1201–PL–25.

• Decision Date: 23 January 2013
• Docket Number: No. 02A05–1201–PL–25.,02A05–1201–PL–25.
• Parties: David BLEEKE, Appellant–Plaintiff, v. STATE of Indiana, Edwin G. Buss, in his Capacity as Commissioner of the Indiana Department of Corrections; Gregory Server, as Chairman of the Indiana Parole Board; Randall P. Gentry, as Vice Chairman of the Indiana Parole Board; Thor R. Miller, as a Member of the Indiana Parole Board; Valerie J. Parker, as a Member of the Indiana Parole Board; William R. Harris, 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.
• Court: Indiana Appellate Court

982 N.E.2d 1040

David BLEEKE, Appellant–Plaintiff,
v.
STATE of Indiana, Edwin G. Buss, in his Capacity as Commissioner of the Indiana Department of Corrections; Gregory Server, as Chairman of the Indiana Parole Board; Randall P. Gentry, as Vice Chairman of the Indiana Parole Board;
Thor R. Miller, as a Member of the Indiana Parole Board; Valerie J. Parker, as a Member of the Indiana Parole Board; William R. Harris, 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.

No. 02A05–1201–PL–25.

Court of Appeals of Indiana.

Jan. 23, 2013.

Unconstitutional as Applied

West's A.I.C. 11–13–3–4(g)(2)(D)

[982 N.E.2d 1042]

Daniel McNamara, Patrick L. Proctor, Eilbacher Fletcher, LLP, Fort Wayne, IN, Attorneys for Appellant.

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

OPINION
DARDEN, Senior Judge.
STATEMENT OF THE CASE

David Bleeke (“Bleeke”) appeals the trial court's grant of partial summary judgment in favor of the defendants in response to Bleeke's complaint for declaratory and injunctive relief filed against the State of Indiana; Edwin G. Buss (in his capacity as former Commissioner of the Indiana Department of Correction); Gregory Server (as chairman of the Indiana Parole Board); Randall P. Gentry (as vice chairman of the Indiana Parole Board); Thor R. Miller, Valerie J. Parker, and William R. Harris (as members of the Indiana Parole Board); and Mia Kelsaw, Damita Vanlandingham, and Susan Feasby (as parole supervisors for the Indiana Parole Board's Fort Wayne District). When possible, we shall refer to the defendants collectively as “the Parole Board.”

We reverse and remand.

ISSUES

The following issues are dispositive:

I. Whether Bleeke waived any right to appeal the imposition of additional parole conditions when he signed a document permitting him to move to Ohio;

II. Whether the trial court erred in determining as a matter of law that

[982 N.E.2d 1043]

provisions of Indiana Code Section 11–13–3–4(g) were not overbroad;

III. Whether the trial court erred in determining that the designated evidence supported the imposition of certain additional parole conditions prohibiting Bleeke's association with children;

IV. Whether the trial court erred in determining as a matter of law that certain other additional parole conditions were neither overbroad nor vague; and

V. Whether the trial court erred in determining as a matter of law that the Indiana Sex Offender Management and Monitoring Program (“SOMM”), as applied to Bleeke, violates his right to due process.¹

FACTS AND PROCEDURAL HISTORY

On January 31, 2005, a jury found Bleeke guilty of residential entry, attempted criminal deviate conduct, and sexual battery for the 2002 entry into an adult female's apartment and the touching of her pubic area in an attempt to digitally penetrate her vagina. The trial court merged the attempted criminal deviate conduct and sexual battery counts and sentenced Bleeke to concurrent sentences of ten years on the attempted criminal deviate conduct conviction and one and one-half years on the residential entry conviction. Bleeke appealed his attempted criminal deviate conduct conviction, and this court affirmed. See Bleeke v. State, No. 02A03–0504–CR–196, 834 N.E.2d 235 (Ind.Ct.App. August 29, 2005), trans. denied.

Bleeke was incarcerated in the Indiana Department of Correction (“D.O.C.”) from January 6, 2005, until March 19, 2008, when he was released to an Allen County community transition program. On April 24, 2009, after completing the community transition program, Bleeke was released to mandatory parole, which ends in 2015.

The Parole Board imposed a statutorily-required parole condition pursuant to Indiana Code section 11–13–3–4(g)(2)(D), which states that the Parole Board shall “prohibit a parolee who is a sex offender from owning, operating, managing, being employed by, or volunteering at any attraction designed to be primarily enjoyed by children less than sixteen (16) years of age.”

Indiana Code section 11–13–3–4(b) allows the Parole Board “to adopt, under IC 4–22–2, additional conditions” that “must be reasonably related to the parolee's successful reintegration into the community and not unduly restrictive of a fundamental right.” Under this subsection, the Parole Board imposed additional parole conditions listed on standardized State Form 49108 that limited Bleeke's association with minors, including his own children and step-children. State Form 49108 provides in part:

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

[982 N.E.2d 1044]

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.[ ²]

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.

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 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, or enclosed area, or to otherwise relocate.

Appellant's App. pp. 22–23 (emphasis added).

Bleeke was permitted to visit and play with his son, K.B., while he was a prisoner in D.O.C.; however, after he was released to parole, his parole agents interpreted his parole conditions to prohibit him from being physically present with his son, speaking to him by phone or contacting him through a third person, or corresponding with him. Parole agents also interpreted the parole conditions to prohibit Bleeke from possessing photographs or videotapes of his son. Parole agents further interpreted the parole conditions to prohibit Bleeke from even being present at the birth of his second son, Z.B., born on July 7, 2009. They also prohibited Bleeke from having contact with Z.B.

Sometime prior to the filing in state court of the complaint for declaratory and injunctive relief that led to this appeal, Bleeke had filed a lawsuit in federal district court challenging some of the same parole conditions that he is challenging in this appeal. Due to procedural issues, the federal district court dismissed most of Bleeke's claims without prejudice; however, it did grant Bleeke's motion for preliminary injunction regarding those conditions that prohibited Bleeke's association with his own children and step-children. See Bleeke v. Server, 2010 WL 299148 at *13 (N.D.Ind. January 19, 2010). The federal court held that Bleeke “established that [the Parole Board] had a constitutional

[982 N.E.2d 1045]

obligation to provide some procedural safeguard allowing for an individualized determination as to [Bleeke's] risk to his own children before imposing [Bleeke's] parole conditions.” Id.

On May 10, 2010, the Parole Board held a special hearing pursuant to the federal court's order. In the hearing, Bleeke presented evidence from his SOMM supervisor, Mary Rose, and the supervisor of his parole agents, Mia Kelsaw, that he posed no risk to children. The Parole Board heard testimony by the SOMM program director, Adam Deming, that the actuarial statistics upon which the program relies for recidivism rates do not measure the likelihood of a sex offender acting out against children. Deming also testified that psychological evaluations do exist which would allow the Parole Board to assess the level of risk that an individual parolee will recommit an offense using dynamic risk factors particular to that individual instead of actuarial statistics. However, Deming testified that no such evaluation of Bleeke had been made and that Deming would rely heavily upon Rose's evaluation. Even though the Parole Board received no individualized evidence that Bleeke had or would abuse a child, the Board upheld all of the parole conditions formerly imposed upon him, including the conditions that prevented him from associating with his own children or other children.

On May 19, 2010, Bleeke filed in Allen Superior Court the aforementioned complaint for declaratory and injunctive relief. Bleeke amended the motion and complaint on June 14, 2010. In the amended motion and complaint, Bleeke claimed that the Indiana Declaratory Judgment Act, Indiana Code section 34–14–1–1 et seq., “entitles [him] to obtain a declaration of [his] rights and status under the challenged statutes, State Conditions, and conduct of the State.” Appellant's App. p. 37. Bleeke further claimed that he was entitled to...