Howell v. State
| Decision Date | 31 October 2013 |
| Docket Number | No. 33A01–1305–MI–245.,33A01–1305–MI–245. |
| Citation | 996 N.E.2d 869 |
| Parties | Jeffrey E. HOWELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Henry Circuit Courtl The Honorable Kit C. Dean Crane, Judge; Cause No. 33C02–1209–MI–118.
Jeffrey E. Howell, New Castle Correctional Facility, New Castle, IN, Appellant pro se.
Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.
Jeffrey E. Howell, a convicted sex offender, is currently serving a sentence in the Indiana Department of Correction (“DOC”) on a conviction for failure to register as a sex offender. As part of his incarceration, Howell is required to participate in the Sex Offender Management and Monitoring (“SOMM”) program. The SOMM program requires offenders to admit guilt to sexual offending behavior for which they have been convicted. Although Howell participates in the SOMM program, he refuses to admit guilt regarding a prior child solicitation conviction, claiming that requiring him to do so violates his Fifth Amendment rights. Howell has been repeatedly disciplined by the DOC, including loss of earned credit time and demotion of credit class, due to his refusal to admit guilt. Accordingly, Howell filed motions with the trial court for preliminary injunction and restoration of credit time and class. The trial court denied Howell's motions, concluding that it was without jurisdiction to review or set aside disciplinary actions taken against a prisoner by the DOC. Howell, pro se, now appeals the trial court's denial. We address two restated issues on appeal, namely whether the trial court had subject matter jurisdiction to review Howell's claims and whether the SOMM program's requirements, as applied to Howell, violate the Fifth Amendment. Concluding that the trial court had subject matter jurisdiction and that the SOMM program's requirements violate the Fifth Amendment, we reverse.
In February 2009, after pleading not guilty, Howell was convicted in Marion County of one count of class C felony child solicitation. He was sentenced to four years in the DOC with two years suspended to probation.1 On October 19, 2011, Howell was released early and began serving parole. However, on January 11, 2012, Howell was arrested in Lawrence County for failure to register as a sex offender. Howell pled guilty to the failure to register charge and was sentenced to two years in the DOC. Howell was assigned to the New Castle Correctional Facility to execute the remainder of his Marion County sentence as well as to serve his Lawrence County sentence. Howell completed the sentence on his Marion County conviction on October 19, 2012. According to Howell, the maximum release date on his Lawrence County conviction is January 9, 2014.
On or about May 28, 2012, Howell was notified that, as part of his incarceration, he was required to participate in the DOC's SOMM program. In the SOMM program, an offender is required to admit sexual behavior for which he has been convicted. If the offender refuses to admit such behavior, he is asked to submit to a polygraph test. Participants in the SOMM program are also informed that anything they say can be reported to law enforcement officials. Howell participated in the SOMM program, but he refused to admit guilt regarding his child solicitation conviction and refused to submit to a polygraph test, claiming that forcing him to do either constituted a violation of his Fifth Amendment privilege against self-incrimination. On at least three separate occasions, Howell was issued a conduct report and was disciplined for failure to successfully participate in the mandatory SOMM program. The discipline included disciplinary segregation, loss of commissary and phone privileges, deprivation of earned credit time, and demotion in credit class.
On October 10, 2012, Howell filed a pro se motion for restoration of credit time and class and a motion for preliminary injunction. The trial court denied those motions on November 26, 2012. Then, on April 3, 2013, Howell filed a renewed motion for restoration of credit time and class and a renewed emergency motion for temporary restraining order and preliminary injunction. In his motions, Howell cited to the Fifth Amendment as well as recent Indiana case law to support his claims. The trial court denied both motions, concluding that it did not have jurisdiction to review or set aside disciplinary actions taken against a prisoner by the DOC. Howell subsequently filed a motion to correct error, which the trial court denied on May 10, 2013. This appeal ensued.
We begin by addressing the trial court's denial of Howell's motions based on its conclusion that it was without subject matter jurisdiction to review his claims. Specifically, the trial court cited Israel v. Indiana Department of Correction, 868 N.E.2d 1123, 1124 (Ind.2007), for the well-settled proposition that Indiana courts do not have jurisdiction to review or set aside prison disciplinary actions. While we agree with that general proposition, our appellate courts have held that the judiciary may review other types of DOC actions. See, e.g., Ratliffv. Cohn, 693 N.E.2d 530, 548 (Ind.1998) (); Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind.Ct.App.2007) (), trans. denied; Montgomery v. Indiana Dep't of Corr., 794 N.E.2d 1124, 1127 (Ind.Ct.App.2003) (), trans. denied (2004).
In his pro se motions to the trial court, Howell specifically cited to the Fifth Amendment as well as various Indiana cases, including our decision in Moore, to support his request for relief. There is no question that Howell's claims regarding the SOMM program are rooted in the Fifth Amendment. Accordingly, the trial court had subject matter jurisdiction to review Howell's claims, and the court erred when it denied his motions on the basis that it lacked such jurisdiction.
Having determined that the trial court erroneously denied Howell's claims on jurisdictional grounds, we must consider whether this case presents an appropriate opportunity for this Court to rule on the constitutionality of the SOMM program's requirements as applied to Howell. As we noted in Moore, “[i]t is long established that a constitutional question unnecessary to a determination of the merits should not be decided.” Id. at 1058 (citations omitted). Here, however, because the trial court on remand would be without guidance to resolve Howell's claims, we choose to address the constitutional question.
Another panel of this Court recently held that the SOMM program's requirements, as applied to a parolee, violated the Fifth Amendment. See Bleeke v. State, 982 N.E.2d 1040, 1054 (Ind.Ct.App.2013), trans. granted. In Bleeke, a parolee was required to participate in the SOMM program and admit to sexual acts that he had denied in trial testimony, or risk revocation of his parole. We first observed that
[t]he Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person “shall be compelled in any criminal case to be a witness against himself.” In order for the privilege to apply, two distinct elements must be present: compulsion and incrimination. Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).
The compulsion element of the privilege against self-incrimination is present when the state attaches sufficiently adverse consequences to a refusal to surrender the privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). The incrimination element refers to the fact that a surrender of the privilege “might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486–87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Although the danger of incrimination must be real and appreciable, and not simply imaginary and unsubstantial, the inquiry into whether a statement is incriminating...
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