Giden v. State
| Decision Date | 24 June 2020 |
| Docket Number | Court of Appeals Case No. 19A-CR-2891 |
| Parties | Montel GIDEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Denise L. Turner, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, Indiana
[1] Montel Giden appeals his two convictions for escape, as Level 6 felonies. We affirm.
[2] Giden raises three issues, which we revise and restate as:
[3] On July 12, 2019, the State charged Giden with criminal recklessness, a Level 5 felony, and pointing a firearm, a Level 6 felony.1 Giden posted bond and, on July 12, 2019, was placed on home detention as a condition of his pretrial release. The home detention order required Giden to "be confined to [his] home at all times" except for certain approved reasons. Exhibits p. 3. The order also required Giden to "abide by a written schedule prepared by [his] community corrections program specifically setting forth the limited times when [he] may be absent from [his] home and the specific locations [he is] allowed to be during scheduled absences." Id. The order noted that Giden may be subject to prosecution for the crime of escape for any violation of the home detention order. Shelby County Community Corrections ("SCCC") personnel explained to Giden the process of completing and returning the weekly schedules by 8:00 p.m. on Sunday evenings. Even a trip to SCCC must be listed on the weekly schedule. Participants are also given a number to call in emergency situations. Giden received his GPS monitoring equipment on July 15, 2019.
[4] Giden's weekly schedule for July 24, 2019, to July 30, 2019, did not list any home absences for July 24, 2019. On Wednesday, July 24, 2019, SCCC received an alert that Giden left his home.2 GPS records indicated that Giden left his home at 2:30 p.m., traveled to SCCC, and returned home at 2:52 p.m. According to Giden's testimony, he went to SCCC to get permission to see an attorney, and he was told at SCCC "that would not be allowed." Tr. Vol. II p. 198. SCCC personnel again explained to Giden the need to have all absences from his home recorded on his weekly schedule.
[5] Giden's weekly schedule for August 21, 2019, to August 27, 2019, did not list any home absences for August 25, 2019. On Sunday, August 25, 2019, SCCC received another alert that Giden left his home. GPS records show that, between 3:56 p.m. and 8:50 p.m., Giden left and returned to his residence four times and that he visited several addresses in Shelbyville. When questioned by SCCC personnel regarding his whereabouts that day, Giden claimed that he had to go to CVS to get an inhaler. The GPS records, however, did not indicate that Giden went to CVS. According to Giden's testimony, he left his residence to drop off his weekly schedule at SCCC and to attempt to borrow an inhaler. Giden had not previously informed SCCC that he needed an inhaler.
[6] On August 28, 2019, the State charged Giden with two counts of escape, as Level 6 felonies. The jury found Giden guilty as charged. The trial court sentenced Giden to an aggregate sentence of 365 days, with 180 days executed in the Shelby County Jail and the remainder of the sentence suspended to probation. Giden now appeals.
[7] Giden argues that the escape statute violates the Proportionality Clause of the Indiana Constitution. As an initial matter, the State argues that Giden waived this argument by failing to raise it in a motion to dismiss. The Indiana Supreme Court has held that such constitutional claims are waived where they are not raised at trial. Layman v. State , 42 N.E.3d 972, 976 (Ind. 2015). The Court also noted, however that "appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived." Id. Indeed, we may exercise our discretion to review a constitutional claim on our own accord. Id. For example, in Poling v. State , 853 N.E.2d 1270, 1274 (Ind. Ct. App. 2006), we addressed a defendant's challenge of a criminal statute under the Proportionality Clause after noting that a party may raise the issue of a statute's constitutionality at any stage of a proceeding and that this Court may also raise the issue sua sponte. Accordingly, we will address Giden's argument despite his waiver.
[8] The Proportionality Clause mandates that "[a]ll penalties shall be proportioned to the nature of the offense." Ind. Const. Art. 1, § 16. Challenges to the constitutionality of a statute begin with a presumption in favor of the statute's constitutionality and will not be overcome absent a clear showing to the contrary. White v. State , 971 N.E.2d 203, 207-08 (Ind. Ct. App. 2012), trans. denied . "[B]ecause criminal sanctions are a legislative prerogative, separation-of-powers principles require a reviewing court to afford substantial deference to the sanction the legislature has chosen." Id. Accordingly, we will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of clear constitutional infirmity. Id.
[9] The protections provided by Article 1, Section 16 are "narrow." Knapp v. State , 9 N.E.3d 1274, 1289 (Ind. 2014), cert. denied , 574 U.S. 1091, 135 S. Ct. 978, 190 L.Ed.2d 862 (2015). "[A] finding of unconstitutionality should be reserved for ‘penalties so disproportionate to the nature of the offense as to amount to clear constitutional infirmity sufficient to overcome the presumption of constitutionality afforded to [legislative] decisions about penalties.’ " Poling , 853 N.E.2d at 1275 (quoting State v. Moss-Dwyer , 686 N.E.2d 109, 112 (Ind. 1997) ). The constitutional provision is violated "only when the criminal penalty is not graduated and proportioned to the nature of the offense." Knapp v. State , 9 N.E.3d 1274, 1289-90 (Ind. 2014) ; see also Shoun v. State , 67 N.E.3d 635, 641 (Ind. 2017). Though we "cannot set aside a legislatively sanctioned penalty merely because it seems too severe," Article 1, Section 16 requires us to review whether a sentence is not only within statutory parameters, but also constitutional as applied to the particular defendant. Knapp , 9 N.E.3d at 1290.
[10] Giden was convicted pursuant to Indiana Code Section 35-44.1-3-4(b), which provides: "A person who knowingly or intentionally violates a home detention order or intentionally removes an electronic monitoring device or GPS tracking device commits escape, a Level 6 felony." Giden argues that the escape statute, which makes the violation of a home detention order a Level 6 felony, violates the Proportionality Clause because another statute, Indiana Code Section 35-38-2.5-13, makes the unauthorized absence from home detention a Class A misdemeanor.
[11] The unauthorized absence from home detention statute, Indiana Code 35-38-2.5-13, provides:
We have held that this statute "applies only in cases where the offender has been placed on home detention as a condition of probation ." Gordon v. State , 981 N.E.2d 1215, 1220 (Ind. Ct. App. 2013) (emphasis added); see Ind. Code § 35-38-2.5-5. Here, however, Giden was subject to home detention as a condition of his pretrial release, not as a condition of probation. As such, Indiana Code 35-38-2.5-13 was not applicable to Giden's offense.
[12] According to Giden, "common sense and sound logic dictate that [ Indiana Code Section 35-38-2.5-13 ] should apply equally to a person placed on home detention as a condition of pre-trial release in order to comport with Indiana's Proportionality Clause." Appellant's Br. p. 11. Giden points out that a "presumptively innocent defendant" on home detention as a condition of pretrial release "can receive a harsher penalty" than an "already-convicted offender." Id.
[13] The State points out that the escape statute and the unauthorized absence from the home detention statute contain different elements. See Matthews v. State , 944 N.E.2d 29, 33 (Ind. Ct. App. 2011) (). The State also contends that the different statutes ensure that a lower-level offense option is available to defendants on probation where the violation of a probationary term "likely means additional sanctions for a defendant, including revocation of all or part of a suspended sentence." Appellee's Br. p. 18.
[14] We agree with the State that Giden has failed to overcome the strong presumption in favor of the statute's constitutionality and has failed to make a clear showing of a constitutional infirmity. The General Assembly's choice of sanctions is entitled to substantial deference, and the State has pointed out a reasonable explanation for the differences in sanctions between the two statutes. Under these circumstances, Giden has failed to demonstrate that the escape statute violates the Proportionality Clause.3
[15] Giden argues that the trial court...
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