White v. Indiana Parole Bd.

• Decision Date: 24 June 1999
• Docket Number: No. 49A04-9806-CV-305.,49A04-9806-CV-305.
• Parties: Sarah Isabel WHITE, Appellant-Plaintiff, v. INDIANA PAROLE BOARD, Raymond J. Justak, Kermit O. Borrous, Patricia A. Ravinet, Thor R. Miller, and Thomas Jeffers, Appellees-Defendants.
• Court: Indiana Appellate Court

713 N.E.2d 327

Sarah Isabel WHITE, Appellant-Plaintiff, v. INDIANA PAROLE BOARD, Raymond J. Justak, Kermit O. Borrous, Patricia A. Ravinet, Thor R. Miller, and Thomas Jeffers, Appellees-Defendants.

No. 49A04-9806-CV-305.

Court of Appeals of Indiana.

June 24, 1999.

Rehearing Denied August 23, 1999.

Charles A. Asher, South Bend, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, David A. Arthur, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge.

Sarah White appeals the trial court's order granting the Indiana Parole Board's motion for judgment on the pleadings raised in response to her claim that she is entitled to be considered for parole. White raises one issue which we restate as whether White was entitled to parole consideration as one serving a life sentence under the parole statutes in effect at the time of her conviction. We affirm.

The facts most favorable to the judgment follow. In December of 1974, White set a fire that resulted in the death of six people. The State charged her with six counts of felony murder of which she was found guilty in 1975. The trial court sentenced her to six concurrent life sentences. During the time of her imprisonment, the Board has refused to consider White for parole. Consequently, she filed a complaint for mandamus and declaratory judgment in 1997 alleging that she is eligible for parole consideration under Ind. Code § 11-1-1-9. The Board filed a motion for judgment on the pleadings which the trial court granted.

The sole issue is whether White, as an inmate sentenced to life imprisonment in 1975, was then entitled to parole consideration. It has long been the law in Indiana that the Parole Board has almost absolute discretion in carrying out its duties and that it is not subject to the supervision or control of the Courts. Murphy v. Indiana Parole Bd., 272 Ind. 200, 397 N.E.2d 259, 261 (Ind. 1979). Indeed, there is no constitutional or inherent right to parole release. Id. Thus, our review of a decision from the Parole Board is limited to a determination of whether "the requirements of Due Process have been met and that the Parole Board has acted within the scope of its powers." Id. These powers are defined by statute. Id. Consequently, any right to parole release in Indiana must emanate from the parole release statutes. Id. at 263. Our supreme court has held:

"Suffice it to say that the legislature may abolish all paroles. If it may do such, it may also make parole more difficult or impossible in certain cases. The terms of parole are a matter of legislative policy. Statutes providing for consecutive sentences and statutes establishing conditions for parole are not `vindictive justice' but represent the legislature's opinion of the best way to construct a reformative penal code. We are not at liberty to dispute the legislature's prerogative."

White v. State, 263 Ind. 302, 309, 330 N.E.2d 84, 88 (Ind.1975). Therefore, our review of whether White is entitled to parole consideration will be limited to statutory construction. In construing statutes, our primary task is to determine and implement the intent of the legislature. Indiana Dep't of State Revenue v. Ft. Wayne Nat'l Corp., 649 N.E.2d 109, 113 (Ind.1995),cert. denied, 516 U.S. 913, 116 S.Ct. 298, 133 L.Ed.2d 204 (1995). We give words their common and ordinary meaning without "overemphasizing a strict literal or selective reading of individual words." Spaulding v. Int'l Bakers Serv., 550 N.E.2d 307, 309 (Ind.1990) (quoting Foremost Life Ins. Co. v. Dept. of Ins., 274 Ind. 181, 186, 409 N.E.2d 1092, 1096 (1980)

). Also, in gleaning such an intent, we presume that the legislature is mindful of court decisions and existing law. State Employees' Appeals Comm'n v. Barclay, 695 N.E.2d 957, 961 (Ind.Ct.App.1998),

trans. denied, 706 N.E.2d 178. Moreover, we presume that the legislature does not enact useless provisions. State ex rel. Hatcher v. Lake Superior Court, 500 N.E.2d 737, 739 (Ind. 1986). In addition, specific statutory provisions take priority over general statutory provisions. Ezzell v. State, 246 Ind. 268, 271, 205 N.E.2d 145, 146 (Ind.1965).

Although this is not a criminal appeal, the subject matter of this appeal involves a determination of whether White is eligible to be considered for parole from her criminal convictions. "One of our well established rules of criminal law is that the controlling law is that which is in effect at the time the crime is committed." Smith v. State, 675 N.E.2d 693, 695 (Ind.1996) (citation omitted). Therefore, the controlling statutes in this case will be those in effect at the time White committed her criminal act that resulted in the deaths of six people. See id.

White argues that, pursuant to I.C. § 11-1-1-9, any prisoner not sentenced to death was eligible to be considered for parole. The state responds by arguing that I.C. § 11-1-1-9.1 controlled White's eligibility for parole. However, the resolution of this issues does not depend on these two statutes alone. Rather, the history of our parole release statutes reveals three applicable statutes existing at the time of White's conviction (I.C. §§ 11-1-1-9, 11-1-1-9.1, and 11-7-1-1) and a strong relationship between parole release and good time statutes. Consequently, we first briefly review the history of parole statutes in Indiana.¹

The earliest enacted statute regarding parole in effect at the time of White's conviction was I.C. § 11-7-1-1 which was first enacted in 1897. I.C. § 11-7-1-1 (originally § 13-246, Acts 1897, ch. 143, § 3, p. 219) (repealed 1978). At the time of White's conviction, the statute read in relevant part:

"At each meeting of said board held at such prison, every prisoner confined in said prison upon an indeterminate sentence, whose minimum term of sentence has expired, shall be given an opportunity to appear before such board and apply for his release upon parole, or for an absolute discharge, as hereinafter provided, and said board is hereby prohibited from entertaining any other form of application or petition for the release upon parole or absolute discharge of any prisoner."

I.C. § 11-7-1-1 (emphasis added).² Thus, only inmates serving indeterminate sentences were eligible for parole. Gilchrist v. Overlade, 233 Ind. 569, 575, 122 N.E.2d 93, 96-97 (Ind. 1954) (holding that the sole power of the parole board in Indiana "is confined to the granting of paroles, and this was granted by the legislature in order to give effect to, and assist in, the administration of the indeterminate sentence laws").

Despite being ineligible for parole, those serving determinate sentences were eligible for early release. Specifically, they were eligible for good time credits under I.C. § 11-7-6-1 which was first enacted in 1933. I.C. § 11-7-6-1 (originally § 13-116, Acts 1933, ch. 164, § 1, p. 858) (repealed 1974, current version at § 35-50-6). Moreover, until 1955, only those serving determinate sentences were eligible for good time credits that could be applied toward their discharge date.³Dunn v. Jenkins, 268 Ind. 478, 487, 377 N.E.2d 868, 874 (Ind.1978); Jones v. State., 267 Ind. 619, 621, 372 N.E.2d 1163, 1164 (1978); Hinkle v. Dowd, 223 Ind. 91, 94, 58 N.E.2d 342, 343 (Ind.1944). Thus, those serving indeterminate sentences would be eligible for parole consideration and those serving determinate sentences would be eligible for an early discharge dependent upon their good time credit.⁴See Dotson v. State, 258 Ind. 581, 585, 282 N.E.2d 812, 815 (Ind.1972)

.

In 1953, the state legislature complemented the still existing § 11-7-1-1 by charging the board of parole "with the duty, in the manner provided by law, of determining what prisoners serving an indeterminate sentence may be released on parole and when and under what conditions." I.C. § 13-1529 (Acts 1953, ch. 266, §§ 28-39, p. 944) (repealed 1961, Acts 1961, ch. 343, § 43). That same year, the state legislature also enacted a statute which provided good time credit toward parole for those serving indeterminate sentences. I.C. § 11-7-7-1 (Burns 1973) (originally I.C. § 13-119a, Acts 1955, ch. 160, § 1, p. 311) (repealed 1974, Acts 1974, P.L. 43, § 3, current version at § 35-50-6); Dotson v. State, 258 Ind. at 585 282 N.E.2d at 815.⁵ The statute read:

"Every inmate who is now or hereafter may be confined in the Indiana State Prison, the Indiana Reformatory, or the Indiana Women's Prison for an indeterminate term of imprisonment, and who, while an inmate in such institution, shall have no infraction of the rules and regulations of the institution, nor infraction of the laws of the state of Indiana or laws of the United States recorded against him or her, and who performs in a faithful manner the duties assigned to him or her while an inmate, shall be entitled to the same rate of good time diminution of time served prior to parole eligibility as already provided by law for diminution of sentence for inmates serving determinate sentences.... In the case of an indeterminate sentence inmate, said reduction shall be computed upon the minimum term of such sentence only.

For purpose of parole eligibility the minimum term of sentence shall be construed as the minimum term imposed by the court, less any good-time diminution granted under terms of this act: Provided, however, That no inmate shall be paroled on his minimum term until he or she has served at least one [1] year."

I.C. § 11-7-7-1 (emphasis added). Thus, inmates serving either a determinate or an indeterminate sentence were eligible to earn good time while only those serving indeterminate sentences were eligible for parole. Id.; Taylor v. State, 251 Ind. 236, 243, 236 N.E.2d 825, 829 (Ind.1968). However, those inmates serving life sentences were neither eligible for parole nor good time credit. A life sentence was considered not to be a determinate or indeterminate sentence. Jones, 372 N.E.2d at 1164 (citing ...