State v. Moore
| Decision Date | 22 July 2009 |
| Docket Number | No. 29A02-0811-CR-1039.,29A02-0811-CR-1039. |
| Citation | 909 N.E.2d 1053 |
| Parties | STATE of Indiana and Indiana Department of Correction, Appellant-Defendant, v. Timothy MOORE, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
James D. Crum, Carmel, IN, Attorney for Appellee.
Appellant/Intervenor Indiana Department of Correction ("DOC") questions the trial court's jurisdiction over this matter and argues that this case is not the proper venue for review of DOC's Sex Offender Management and Monitory Treatment Plan ("SOMM"). Appellee/Cross-Appellant Timothy Moore ("Moore") questions the application of the Indiana Trial Rules in this case. The State Public Defender and the Indiana Public Defender Council (collectively, "IPDC") have provided their "Brief of Amici Curiae" and urge this court to review SOMM.
We remand with instructions.
The parties and IPDC raise the following re-stated issues:
I. Whether the trial court had subject matter jurisdiction in this matter.
II. Whether Indiana Trial Rule 53.3 prevented the trial court from ruling on DOC's motion to correct error after the passage of forty-five days from its filing.
III. Whether DOC was afforded due process under the circumstances of this case.
IV. Whether, under the circumstances of this case, this court should address the constitutional issue raised by Moore and IPDC.
On June 27, 2005, the State filed an information charging Moore with three counts of child molesting. A jury subsequently found Moore guilty of one count of child molesting, as a Class C felony. "In accordance with the recommendations of the parties," Moore was sentenced to eight years with six years executed and two years on work release. (Appellant's App. at 10). Moore originally filed a notice of appeal with the intent of pursuing a direct appeal; however, he eventually filed, and this court granted, a motion for remand. Accordingly, the original appeal was dismissed without prejudice.
DOC required Moore to participate in SOMM as well as a Sex Offender Containment and Accountability Program ("SOCAP"). Moore was willing to participate in both programs; however, the programs required him to admit guilt and to subject himself to polygraph examinations. Moore was concerned about these requirements because he maintained his innocence throughout the proceedings, and his counsel was investigating and preparing a petition for post-conviction relief.
On April 4, 2008, Moore's attorney wrote a letter to the SOMM counselor advising the counselor of Moore's concerns and the pending petition for post-conviction relief. (Appellee's App. at 107). The letter also informed the counselor that the attorney had advised Moore "to refrain from discussing the details of the case that led to his conviction and incarceration." Id. In addition, the letter stated that Moore and his attorney "were concerned that any effort to question or polygraph him regarding this incident will violate his Fifth Amendment right against self-incrimination." Id. The letter noted that "[t]he United States Supreme Court, in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), held that prison inmates, including sex offenders, do not forfeit the privilege of self-incrimination at the jailhouse gate." Id. The letter ended with Moore's attorney assuring the counselor of Moore's willingness to participate in the SOMM program and with the attorney's request that the counselor honor the attorney's advice. Id.
Without addressing Moore's Fifth Amendment claim, DOC determined that Moore was in violation of SOMM requirements, and it demoted Moore's Credit Class I to Class III. It also ordered Moore "out of school," effectively prohibiting him from completing his GED requirement and achieving the consonant sentence reduction. (Appellee's App. at 108-09). In addition, DOC changed Moore's visitation privileges from "contact" visitation to "video" visitation. (Appellee's App. at 110).
On May 28, 2008, Moore filed his "Motion for Restoration of Credit Time Classification and [DOC] Privileges" (hereinafter, "Moore's motion"), restating his claim of innocence, outlining DOC's actions, and referencing his attorney's letter pertaining to Fifth Amendment considerations. In addition, Moore's motion contained the following allegation in Paragraph 7:
The Supreme Court of Indiana in Gilfillen v. State, 582 N.E.2d 821 (Ind.1991) was confronted with a similar situation where Defendant continued to assert his innocence despite participating in sexual abuse therapy as a condition of probation. Gilfillen's refusal to admit guilt resulted in his probation being revoked and the imposition of a suspended sentence. The Supreme Court in Gilfillen found the requirement that Gilfillen admit guilt to be "unacceptable." Id. at 824. The court continued on to say that the revocation of probation based on Gilfillen's refusal to admit guilt was tantamount to requiring that he admit that he was guilty of crimes charged, in violation of his right to be free of self-incrimination. Much as the Gilfillen court resolved, [DOC's] change in credit time application has put [Moore] in a situation where he would have to admit guilt in order to avoid revocation of credit time. This scenario is exactly what was prohibited by Gilfillen. Accordingly, [Moore] seeks the court's intervention.
(Appellant's App. at 17). Moore's motion requested that the trial court issue an order to DOC "restoring [Moore's] credit time classification as originally imposed and reinstating all other privileges relating to visitation and education and for all other appropriate relief." (Appellant's App. at 18). In short, Moore was requesting that the court stop DOC from compelling him to make possibly incriminating statements.
The local prosecutor was served with the motion; however, the motion was not passed on to DOC. On July 14, 2008, after receiving no response to Moore's motion, the trial granted the motion and ordered DOC "to restore [Moore's] credit time classification as originally imposed and reinstate all other privileges relating to visitation and education." (Appellant's App. at 15).
On August 11, 2008, DOC filed a motion to intervene, a motion to correct error, and a memorandum in support of its motion to correct error. In the motions and the memorandum, DOC alleged that the trial court did not have subject matter jurisdiction to review and rule on Moore's motion because such review required the trial court to pass judgment on the propriety of DOC's disciplinary actions. On August 14, 2008, the trial court granted DOC's motion to intervene; however, it did not rule on DOC's motion to correct error within the forty-five days required by Trial Rule 53.3. Under the rule, therefore, DOC's motion was deemed denied on September 25, 2008. However, on October 23, 2008, the trial court issued an order purporting to grant DOC's motion to correct error. As noted above, DOC brings this appeal as an Intervenor/Appellant, and Moore is designated as the Appellee/Cross-Appellant.
As DOC correctly notes, our supreme court has repeatedly held that Indiana courts have no subject matter jurisdiction to review prison disciplinary actions. See Blanck v. Indiana Department of Correction, 829 N.E.2d 505, 507 (Ind. 2005) and cases cited therein. When a trial court lacks subject matter jurisdiction, the complaint is subject to dismissal pursuant to Indiana Trial Rule 12(B)(1). Id. at 508. Resolution of the subject matter jurisdiction issue "involves determining whether the claim advanced falls within the general scope of authority conferred upon the court by constitution or statute." Id.
However, Indiana courts have held that other types of DOC actions may be reviewed by our courts. See e.g., Ratliff v. Cohn, 693 N.E.2d 530 (Ind.2005) (); Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind.Ct.App. 2007), trans. denied ( that a trial court has jurisdiction when an allegation is made that constitutional rights are being violated by DOC). The issue then is whether Moore raised only a challenge to the disciplinary actions resulting from his refusal to be subjected to a polygraph test and/or to admit to a crime he does not believe he committed or whether Moore's challenge is rooted in the Fifth Amendment.
As disclosed in our statement of the facts above, Moore's motion did indeed challenge the deprivation of credits and various privileges. However, his attorney previously challenged the deprivation of Moore's Fifth Amendment right under DOC's SOMM policies. Furthermore, in paragraph 7 of Moore's motion, he challenged the violation of his right against self-incrimination by citation to Gilfillen.1 Although his prayer addresses the restoration of credit time and privileges that were imposed as part of DOC's discipline, it is apparent from his attorney's letter and paragraph 7 of Moore's complaint that the gravamen of Moore's claim is based on the constitutionality of certain requirements of its SOMM program. DOC cannot violate a prisoner's constitutional right against self-incrimination under the Fifth Amendment, impose sanctions because the prisoner asserts his rights, and then hide behind the shibboleth of "no review of prison disciplinary matters." We conclude that the trial court had subject matter jurisdiction to review the deprivation of Moore's credit time and privileges after such deprivation occurred pursuant to Moore's claim of his Fifth Amendment right against self-incrimination.
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