Charles Gross v. State of Indiana , 2015 Ind. App. LEXIS 580 ( 2015 )

Aug 14 2015, 6:30 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael J. Kyle Gregory F. Zoeller
Baldwin Kyle & Kamish Attorney General of Indiana
Franklin, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Gross, August 14, 2015
Appellant-Defendant, Court of Appeals Case No.
41A01-1411-CR-467
v. Appeal from the Johnson Superior
Court
The Honorable Cynthia S. Emkes,
State of Indiana, Judge
Appellee-Plaintiff, Cause No. 41D02-0302-FB-1
Robb, Judge.
Case Summary and Issues
[1] Charles Gross was arrested on February 28, 2003, on charges of child
molesting, a Class B felony, and dissemination of matter harmful to a minor, a
Class D felony. He has never been tried on these charges, however, as he was
found to be incompetent and has been either incarcerated in Johnson County or
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confined by the State Division of Mental Health and Addiction (“DMHA”)
since his arrest. In August 2014, Gross filed a motion to dismiss the charges
against him and a request for release from custody because he had been
confined for a period of time equivalent to the maximum sentence he could
have to serve if convicted. The trial court denied his motion, finding Gross was
subject to the credit restricted felon statute and therefore had not yet been
confined for the maximum time allowed by law.
[2] Gross appeals the trial court’s denial of his motion to dismiss the charges
pending against him and release him from custody. He raises two issues: 1)
whether the trial court erred in finding he was subject to the credit restricted
felon statute; and 2) whether the trial court abused its discretion in denying his
motion because due process requires the charges to be dismissed. The State
concedes that Gross is not subject to the credit restricted felon statute and has
been confined for the maximum time allowed by law but argues the charges
should not be dismissed. We conclude the parties are correct that Gross is not
subject to the credit restricted felon statute and has therefore been confined for
the equivalent of the maximum sentence he could have been ordered to serve.
In addition, because there has been a finding that it is unlikely Gross will ever
be restored to competency, it is a violation of due process for the underlying
criminal charges to continue to pend against him. The trial court abused its
discretion in denying Gross’s motion to dismiss, and we therefore reverse.
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Facts and Procedural History
[3] In early 2003, the Edinburgh Police Department investigated a report that
Gross had molested a young male cousin and had shown the boy pornographic
material. As a result, the State charged Gross on February 26, 2003, with child
molesting, a Class B felony, and dissemination of matter harmful to minors, a
Class D felony. Gross was arrested on February 28, 2003, and appeared in
court on March 6, 2003, for an initial hearing. However, the court did not hold
the initial hearing “due to the fact that [Gross] does not comprehend the
Court’s advisements.” Appellant’s Appendix at 146. The trial court appointed
a public defender to represent Gross and directed the public defender to submit
a petition for psychiatric evaluation, which she did. The trial court appointed
two psychiatric evaluators. After the trial court received the psychiatric
evaluations, the court held a competency hearing and determined that “there is
sufficient evidence that [Gross] is not capable of understanding the nature of the
proceedings against him, and he is not able to assist in his defense based on his
lack of competency.” Id. at 130. On November 5, 2003, Gross was committed
to DMHA for placement.1 On January 15, 2004, his case was stayed.
1
Gross was originally placed at Evansville State Hospital. On March 26, 2008, Evansville State Hospital
advised the court that Gross was being released and had the ability to understand the proceedings against
him. Gross was transported to the Johnson County Jail awaiting trial. His counsel filed another petition for
psychiatric evaluation in September of 2008, and in February of 2009, the trial court again found him
incompetent to stand trial and committed him to DMHA, which placed him at Madison State Hospital
where he has remained for the duration of these proceedings.
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[4] In February 2014, DMHA filed a report with the trial court indicating Gross
“remains incompetent to stand trial and legal education suggests he may not be
restorable to legal competence.” Id. at 49. On February 28, 2014, Gross filed a
Motion to Dismiss. On August 6, 2014, following a hearing, the trial court
found that the maximum sentence the trial court could impose on Gross if
convicted of the charges against him was twenty-three years;2 that there was no
evidence Gross was not entitled to Class I credit time, earning one day credit
time for each day he was confined; and that he would have to serve a total of
eleven years and 182 days at that level of credit time to have served the
maximum amount of time allowed by law. The trial court calculated Gross
would serve that amount of time as of August 29, 2014, and expressed a belief
that Gross’s motion should be renewed at that time. But as that date had not
yet been reached, the trial court denied the motion to dismiss. Id. at 4-7.
[5] On August 26, 2014, Gross filed a Request for Hearing on Release from
Custody referencing the trial court’s previous order. The trial court held a
hearing on August 28, 2014, at which time the State argued that due to the
charges against him, Gross’s credit time was restricted by Indiana Code section
35-31.5-2-72 and he had not yet served his maximum time. The trial court
issued the following order on September 2, 2014, denying Gross’s request for
release from custody:
2
A Class B felony conviction carries a maximum sentence of twenty years, Ind. Code § 35-50-2-5, and a
Class D felony conviction carries a maximum sentence of three years, Ind. Code § 35-50-2-7(a).
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7. A person’s credit time may be restricted under IC 35-31.5-2-72 if the
offense implicates child molesting involving sexual intercourse or
deviate sexual conduct . . . and if the offense is committed by a person
at least twenty-one (21) years of age and the victim is less than twelve
(12) years of age.
8. If a person’s credit time is restricted then a person is assigned to
class IV for purposes of credit time.
9. “A person assigned to Class IV earns one (1) day of credit time for
every six (6) days the person is imprisoned for a crime or confined
awaiting trial or sentencing,” . . . while “[a] person assigned to Class I
earns one (1) day of credit time for each day the person is imprisoned
for a crime or confined awaiting trial or sentencing.”
10. The Court finds that [Gross’s] time is credit restricted and is
entitled to earn only one (1) day of credit time for every six (6) days he
is confined while awaiting trial.
11. Since [Gross] has not been incarcerated or committed for the
maximum sentence allowed by law as of today’s date, [Gross’s]
motion is DENIED.
Id. at 2. The trial court certified this interlocutory order at Gross’s request and
this court accepted jurisdiction of the appeal.
Discussion and Decision
I. Standard of Review
[6] We review a trial court’s ruling on a motion to dismiss a charging information
for an abuse of discretion. Matlock v. State, 944 N.E.2d 936, 938 (Ind. Ct. App.
2011). Trial courts “have the inherent authority to dismiss criminal charges
where the prosecution of such charges would violate a defendant’s
constitutional rights.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). Indiana
Code section 35-34-1-4 is legislative recognition of this authority, permitting the
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dismissal of an information for various reasons, including on “[a]ny other
ground that is a basis for dismissal as a matter of law.” Ind. Code § 35-34-1-
4(a)(11). “A violation of a defendant’s constitutional right to due process
certainly fits in that category.” Davis, 898 N.E.2d at 285.
II. Gross’s Due Process Rights
A. Criminal Commitment Overview
[7] Due process precludes trying a defendant while he is incompetent. Id. at 284.
The test for determining competency in Indiana is whether the defendant “has
sufficient present ability to consult with defense counsel with a reasonable
degree of rational understanding, and whether the defendant has a rational as
well as a factual understanding of the proceedings against him.” Id. (quoting
Adams v. State, 509 N.E.2d 812, 814 (Ind. 1987)).
[8] Indiana statutes “control the appropriate way to determine a defendant’s
competency and, if necessary, to commit the defendant and provide restoration
services.” Curtis v. State, 948 N.E.2d 1143, 1153 (Ind. 2011). When a criminal
defendant is thought to lack the ability to understand court proceedings and
assist in his own defense, the trial court sets a hearing and appoints two or three
disinterested psychiatrists or psychologists to evaluate the competency of the
defendant. Ind. Code § 35-36-3-1(a). If, following the hearing at which
evidence pertaining to the defendant’s competency is presented, the trial court
determines that the defendant lacks the ability to understand the proceedings
and assist in the preparation of his defense, the trial will be delayed while the
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defendant is committed to DMHA, which “shall provide competency
restoration services or enter into a contract for the provision of competency
restoration services by a third party . . . .” Ind. Code § 35-36-3-1(b).
[9] Within ninety days of a defendant’s admission to a state institution, the
superintendent of the institution must certify to the court “whether the
defendant has a substantial probability of attaining the ability to understand the
proceedings and assist in the preparation of the defendant’s defense within the
foreseeable future.” Ind. Code § 35-36-3-3(a). If that probability does not exist,
the state institution must initiate regular commitment proceedings. Ind. Code §
35-36-3-3(b). If a substantial probability does exist, then the state institution
must retain the defendant until the defendant attains the necessary ability and is
returned to court for trial or for six months after admission to the institution,
whichever occurs first. Id. If the defendant has not attained that ability within
six months, the state institution must institute regular commitment proceedings
under Indiana Code 12-26. Ind. Code § 35-36-3-4.
B. Due Process Implications
[10] In Jackson v. Indiana, the United States Supreme Court held:
a person charged by a State with a criminal offense who is committed
solely on account of his incapacity to proceed to trial cannot be held
more than the reasonable period of time necessary to determine
whether there is a substantial probability that he will attain that
capacity in the foreseeable future. If it is determined that this is not the
case, then the State must either institute the customary civil
commitment proceeding that would be required to commit indefinitely
any other citizen, or release the defendant.
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406 U.S. 715, 738 (1972).3 Although noting that dismissal of charges “has
usually been thought to be justified” by either the Sixth/Fourteenth
Amendment right to a speedy trial or by the “denial of due process inherent in
holding pending criminal charges indefinitely over the head of one who will
never have a chance to prove his innocence[,]” the Jackson court declined to
decide whether dismissal of the pending charges was required because the issue
had not been squarely presented to the Indiana courts. 406 U.S. at 740.
[11] In Davis, our supreme court took up that undecided issue. The court noted that
the deprivation of the defendant’s liberty through commitment must be justified
on the basis of a legitimate state interest. 898 N.E.2d at 288.
Justification for the commitment of an incompetent accused is found
in the State’s interest in the restoration of the accused to competency
because of the right of the public and the defendant to the prompt
disposition of criminal charges pending against him, and the
protection of the accused against being required to answer to charges
that she lacks the capacity to understand or to assist her attorney in
defending against.
Id. at 289 (citation omitted). The defendant, charged with Class D felony
criminal recklessness, had been confined since May 2004 under a commitment
order. Doctors found there was no substantial probability she would ever attain
competency. Her counsel filed a motion to dismiss the charge against her in
March 2007. The court noted that even if she were to recover competency and
3
Jackson was decided under a previous version of our criminal commitment statute which did not provide for
regular civil commitment proceedings and periodic review of the defendant’s competence as part of the
process. The statute was amended in 1974 in apparent response to Jackson. See Davis, 898 N.E.2d at 286 n.4.
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be tried and convicted, she had become immune from being sentenced to
further confinement in November 2005 when she had been confined for half of
the maximum term of imprisonment for a Class D felony. Thus, the
defendant’s pretrial confinement had extended beyond the maximum period of
any sentence that could be imposed for a conviction. The court also noted that
there might be circumstances in which the State’s interest in determining guilt
even though the accused had already been punished would be sufficiently
important to overcome the accused’s substantial liberty interest. Id.
For example, a conviction would be required to enhance a sentence for
a felony committed as a member of a criminal gang, to prohibit
possession of a firearm, to require registration as a sex offender, or to
prove status as a habitual offender, a habitual substance offender, or a
habitual traffic offender.
Id. (citations omitted). However, the State had advanced no argument that its
interests outweighed the defendant’s substantial liberty interest, and the court
concluded that “it is a violation of basic notions of fundamental fairness as
embodied in the Due Process Clause of the Fourteenth Amendment to hold
criminal charges over the head of . . . an incompetent defendant, when it is
apparent she will never be able to stand trial.” Id. at 290. Therefore, the
dismissal of the charge was affirmed.
[12] In subsequent cases, our supreme court has refined the Davis holding. In Curtis,
948 N.E.2d at 1153-54, the court noted that the statutory procedures for
criminal commitment balance the various interests at stake: the defendant’s
liberty interest versus the State’s interests in restoring the accused to
competency and protecting the defendant against proceedings he cannot
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understand. The court also noted that “[o]f course, the State’s interests cannot
be realized if there is a finding that a defendant cannot be restored to
competency.” Id. at 1154. In Curtis, the procedures of Indiana Code chapter
35-36-3 had not been followed in that the trial court had not found the
defendant incompetent and he had not been committed to the DMHA;
therefore, the defendant had no valid due process claim and there was no cause
to dismiss the charges against him on fundamental fairness grounds. Id. at
1154.4 And in State v. Coats, 3 N.E.3d 528, 534 (Ind. 2014), the court stressed
that although the State’s interest in the restoration of an accused to competency
cannot be realized if there is a finding that such restoration is not substantially
probable in the foreseeable future, such a finding must be properly made
pursuant to the statutory procedure. In Coats, the trial court made the initial
finding that the defendant was not competent based upon the court-appointed
doctors’ reports, but did not commit him to DMHA because it further found
based on those reports that the defendant could not be restored to competency.
Our supreme court remanded to the trial court with instructions to commit the
defendant to DMHA for competency restoration services because the trial court
does not have the discretion to refuse to order commitment under these
circumstances. “Only by following the strict statutory framework set forth by
the legislature in Ind. Code chapter 35-36-3 can both the interests of the State
4
The charges were nonetheless dismissed because Indiana Criminal Rule 4(C) had been violated. Id. at
1151.
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and [the defendant] be protected.” Id. at 535. That framework includes clear
and separate duties and responsibilities for the trial court and the
superintendent of the institution to which the defendant is committed: Indiana
Code section 35-36-3-1 gives the trial court the responsibility of initially
determining whether a defendant is competent to stand trial, but section 35-36-
3-3 vests only the superintendent with the authority to make a finding regarding
the defendant’s future competency to stand trial. Id. at 532.
C. Has Gross Served the Maximum Sentence?
[13] The trial court declined to dismiss the charges against Gross upon finding that
he would be a credit restricted felon based upon his charge of child molesting
and had therefore not yet served his maximum possible sentence.
[14] The credit restricted felon statute became effective on July 1, 2008, and applied
only to persons convicted after June 30, 2008. P.L. 80-2008, sec. 6. At the time
it was enacted, the statute defined a credit restricted felon as one who has been
convicted of child molesting involving sexual intercourse or deviate sexual
conduct if the offender is at least twenty-one years old and the victim is less
than twelve years old. Ind. Code § 35-41-1-5.5 (2008). A credit restricted felon
is initially assigned to Class IV, Ind. Code § 35-50-6-4(b) (2008), and earns one
day of credit time for every six days of confinement, Ind. Code § 35-50-6-3(d)
(2008). Gross argues the trial court abused its discretion in finding that he was
a credit restricted felon because such a finding represents an ex post facto
application of the statute. See Appellant’s Brief at 5.
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[15] In Upton v. State, 904 N.E.2d 700 (Ind. Ct. App. 2009), trans. denied, the
defendant committed several child molesting offenses between 2003 and 2007.
When he was sentenced, the trial court ordered that he would receive Class IV
pre-sentencing credit time pursuant to the newly-enacted credit restricted felon
statute. We reversed the trial court’s classification of the defendant as a credit
restricted felon because it was an ex post facto violation. Id. at 706. An ex post
facto law is retrospective—that is, it applies to events occurring before its
enactment and disadvantages the offender affected by it. Id. at 705.
Application of the credit restricted felon statute to the defendant was an ex post
facto violation because it was applied to a crime committed before it was
enacted and disadvantaged the defendant because at the time he committed his
offenses, the law did not so restrict the credit time he could earn. Id. at 705; see
also Gaby v. State, 949 N.E.2d 870, 883 (Ind. Ct. App. 2011) (same).
[16] Based upon this precedent, the State agrees with Gross that the trial court
erroneously ruled that he is a credit restricted felon and has not yet been
confined for the maximum time permitted by law. See Brief of Appellee at 6.
As Gross committed his alleged offenses in 2003 at which time he would have
been entitled to one-for-one credit time, he had been confined for the length of
his maximum possible sentence as of August 29, 2014. However, the State does
not agree that this necessitates dismissal of the charges against Gross.
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D. Is Gross Entitled to Dismissal?
[17] Gross contends that because he has been confined for the maximum time
allowed by law, the trial court abused its discretion by failing to dismiss the
charges pending against him. The State argues that we should not order the
charges to be dismissed. Relying on the language in Davis referencing possible
instances in which the State could have a legitimate interest in determining guilt
or innocence besides punishment, see 898 N.E.2d at 289, the State asks that we
remand to the trial court to “give the State an opportunity to determine if any
such interests are present[,]” Brief of Appellee at 8. Specifically, the State
argues that, unlike the situation in Davis, some of the collateral consequences of
a conviction could be present here, such as sex offender registration
requirements or status as an habitual offender.
[18] The State may indeed have a legitimate interest in obtaining a conviction in this
case. However, it was determined as long ago as 2011 by the superintendent of
the institution where Gross was confined that there was a substantial
probability that he would never be competent to stand trial. See App. at 77
(competency-to-stand trial report from superintendent dated February 21, 2011
stating that “at present Mr. Gross remains incompetent to stand trial and there
is a substantial probability that he will never be competent.”); see also id. at 70
(annual report from superintendent dated February 17, 2012 stating that “Mr.
Gross remains incompetent to stand trial and is not likely to ever be competent
due to level of mental retardation.”); id. at 61 (annual report from
superintendent dated January 28, 2013 stating defendant is “not likely to ever
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be competent . . .”); id. at 49 (annual report from superintendent dated February
6, 2014 stating “Mr. Gross remains incompetent to stand trial and legal
education suggests he may not be restorable to legal competence.”). Gross’s
pretrial criminal confinement has extended beyond the maximum period he
could be ordered to serve if convicted and a finding has been made (repeatedly)
by the superintendent of the institution where Gross is confined that there is a
substantial probability that he will never be restored to competency and able to
stand trial. Therefore, any interest the State might have in a conviction cannot
be realized, and it is a violation of the basic notions of fundamental fairness
embodied in the due process clause to continue to hold criminal charges over
his head indefinitely. See Davis, 898 N.E.2d at 286 (“Jackson made it clear that a
state cannot continue to confine the defendant under its criminal commitment
statutes if it is unlikely that the defendant ever will attain competency.”).
[19] The State also argues we should not order the charges to be dismissed because
the State “will most likely wish to file for a civil commitment” and “should
have the opportunity to make [the] determination” whether Gross is mentally ill
and dangerous to other children. Brief of Appellee at 8. Gross is already under
a regular civil commitment order,5 which, pursuant to Indiana Code section 12-
5
Indiana Code chapter 35-36-3 provides that under certain circumstances and within certain timeframes, the
state institution shall initiate regular commitment proceedings under Indiana Code article 12-26 with regard
to a defendant found incompetent to stand trial. Although there is no information in this record regarding
the civil commitment proceedings leading to Gross’s continued confinement at Madison State Hospital, it is
likely that such proceedings are being conducted in Jefferson County. See App. at 115 (letter to the trial court
from superintendent of Evansville State Hospital following Gross’s first incompetency stating “[w]e wish to
petition the Court for a Regular Commitment at this time because we do not feel he will become competent
to stand trial in the foreseeable future. . . . A Petition for Regular Commitment will be filed in Vanderburgh
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26-7-5(b) continues until such time as he has been discharged from the
institution and the trial court which entered the original commitment order
enters an order terminating the commitment. Moreover, if the State believes it
needs an additional civil commitment order for some reason, the trial court’s
order of August 6, 2014, indicating the trial court’s belief that Gross’s motion to
dismiss should be renewed as of August 29, 2014, should have prompted the
State to begin the process of determining whether that was appropriate. Given
that Gross has been confined for over twelve years at this point, the State has
had ample opportunity to do so. We will not further prolong Gross’s criminal
confinement on account of these criminal charges.
Conclusion
[20] The trial court abused its discretion in finding that Gross was subject to the
credit restricted felon statute and denying Gross’s motion to dismiss on that
ground. Because Gross has been confined in excess of the maximum time he
could be incarcerated if found guilty of the charges against him and because the
superintendent at the facility at which he is confined has made a finding that
there is a substantial probability he will never be restored to competency, due
process requires that the charges against him be dismissed. The order of the
trial court denying Gross’s motion to dismiss is reversed.
County Superior Court.”). The fact that Gross may no longer be held under criminal charges does not
necessarily mean he is no longer subject to his regular commitment order.
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[21] Reversed.
May, J., concurs.
Mathias, J., concurs in result with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Charles Gross,
Appellant-Defendant,
Court of Appeals Case No.
v. 41A01-1411-CR-467
State of Indiana,
Appellee-Plaintiff.
Mathias, Judge, concurring.
[22] I concur wholeheartedly in Judge Robb’s well-reasoned opinion. I write
separately for two reasons.
[23] First, I wish to emphasize that there is little reason to believe that dismissal of
the criminal charges against Gross will lead to his release into society. Instead,
Gross mostly likely faces a lifetime of civil commitment as a result of his mental
illness. See supra, slip op. at 14 n.5.
[24] Secondly, I wish to repeat what I wrote in concurring in Habibzadah v. State, 904
N.E.2d 367, 370 (Ind. Ct. App. 2009):
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A large and ironic lapse in the logic of our criminal justice system is
that its initial imperative is to determine the competency of defendants
prospectively, to assist counsel at trial. And the courts can determine
whether the defendant is able to assist in his or her own defense at any
time, whether relatively soon after arrest, or long thereafter, sometimes
years after arrest. Only after a defendant is determined competent is
the issue of competency at the time of the crime raised, and only along
with the trial of the facts of the offense alleged.
Id. at 370 (Mathias, J., concurring).
[25] I continue to believe that our criminal procedure should permit a psychiatric
examination of a defendant who likely suffers from serious mental illness very
early after arrest to determine whether the defendant could have possibly had
the requisite scienter or mens rea at the time of the crime. As I noted in
Habibzadah:
Our criminal justice system has a mechanism to deal with temporary
incompetence as it pertains to criminal culpability, or scienter, but fails
miserably when faced with the likely long-term or permanent mental
illness of a criminal defendant. Even Davis acknowledges that
confinement of an incompetent person may be a violation of due
process, but only after the defendant has been civilly committed for the
maximum sentence allowed under the charges filed, when the State
does not have an interest that outweighs the defendant's liberty
interest.
Our criminal justice system needs an earlier and intervening procedure
to determine competency retroactively to the time of the alleged crime.
Perhaps we as a society need to consider the concept of a defendant
being unchargeable because of mental illness under Indiana Code
section 35-41-3-6, and not just guilty but mentally ill under Indiana
Code section 35-36-2-1, et. seq. In either case, the commitment
proceedings provided for in Indiana Code section 35-36-2-4 would
both protect society and best care for the defendant involved.
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Whether such a procedure is promulgated by the Indiana Supreme
Court through its rule-making process or by the Indiana General
Assembly through statute, it is time for the truly long-term, incompetent
criminal defendant to have an earlier and intervening opportunity for a
determination of his or her competency at the time of the crime alleged. Such a
procedure convened soon after arrest, rather than years later when
stale evidence and dim or non-existent memories are all that are left, or
never, would best serve society and the defendant.
Id. at 371 (emphasis added); see also A.J. v. Logansport State Hosp., 956 N.E.2d
96, 118 (Ind. Ct. App. 2011) (Mathias, J., concurring) (expressing the same
concerns where, despite earliest expert opinions establishing that the defendant
would never attain competency, the defendant was sent off to competency
restoration services and held there for over two years).
[26] With the additions of these observations, I fully concur.
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