White v. Indiana Parole Board , 1999 Ind. App. LEXIS 1012 ( 1999 )

SULLIVAN, Judge,

dissenting.

White contends upon appeal that she is entitled to parole “under the law prevailing at the time of her offense.” App. Br. at 4; see also 3, 6, 8 and 15. She does not claim a right to parole consideration by virtue of any ameliorative provision of a statute passed since her conviction and sentencing in 1975. We, therefore, are not called upon to apply or reject application of the doctrine of amelioration, or its functional equivalent. Be that as it may, Smith v. State (1996) Ind., 675 N.E.2d 693, relied upon by the majority, was indeed a criminal appeal from the defendant’s sentencing and clearly, therefore, the sentencing statutes in effect at the time of the commission of the offense were controlling.

This appeal is from a judgment denying White’s complaint for Mandamus and Declaratory Judgment. The complaint sought a declaration that she was eligible for parole despite having been sentenced to six consecutive life sentences. To be sure, the issues are very much intertwined with the penal process but, in actuality, the issues do not relate directly to the matters of criminal conviction or sentencing. Rather, they relate to whether or not the inmate is eligible to be considered by the administrative agency, the Indiana Parole Board, for release prior to the time fixed by the sentence imposed. Murphy v. Indiana Parole Board (1979) 272 Ind. 200, 397 N.E.2d 259.

Parole is a discretionary boon by the State, granting an early release notwithstanding the terms of the sentence imposed. In fact, parole does not shorten the term of the sentence imposed. While it is an amelioration of punishment, the parolee remains in the legal custody of the parole agent and the Department of Correction until expiration of the sentence imposed. Overlade v. Wells (1955) 234 Ind. 436, 127 N.E.2d 686. Furthermore, although there is no right of appeal from a denial of parole, the matter of eligibility for parole consideration is a matter subject to resolution by the courts. See Murphy v. Indiana Parole Board, supra. My point of disagreement leads me to observe that the functional equivalent of the doctrine of amelioration may very well be applicable to matters of parole, under appropriate circumstances.⁸

My dissent, however, rests upon what I perceive to be. the clear and unambiguous language of the 1961 legislation, I.C. 11 — 1—1— 9, as it existed in 1975. That provision for parole eligibility applied to “any person confined in any penal or correctional institution in this state except persons under sentence of death.” (emphasis supplied). It did not say “any person except those serving life sentences, determinate sentences or under sentence of death.” Accordingly, it is my view that persons serving determinate sentences were, contrary to the holding of the majority here, eligible for parole prior to enactment of the 1974 Act.

The latter statute, I.C. 11-1-1-9.1 merely set forth the time at which a determinate or indeterminate sentence prisoner became eligible for parole. It did not purport to determine who was eligible for parole. Furthermore, it did not purport to affect I.C. 11 — 1— I-9 governing which prisoners were eligible.

Similarly, the 1979 amendment which specified the time at which prisoners under a life sentence became eligible does not mean that they had previously not been eligible but rather provided the Parole Board with a statutory time frame at which that eligibility was to be acted upon. Prior to the 1979 amendment, and prior to the 1974 enactment of I.C. 11-1-1-9.1, persons under determinate and indeterminate sentences, were not excluded from the “any person” provision of I.C. 11-1-1-9. That the precise methodology and time factors governing the Parole Board in their activities were not in place by enactment of the General Assembly, does not warrant a conclusion that I.C. 11-1-1-9 was totally meaningless and without effect. That statute, itself, contained authorization for the Parole Board to adopt rules and regulations for exercising its parole authority. That the Board did not do so, or did not do so with the specificity set forth by the legislature in I.C. II-1-1-9.1, should not be interpreted as some indication of legislative intent that persons under life sentences be excluded from parole consideration; nor is it an invitation for us to retroactively repeal I.C. 11-1-1-9.

I would reverse and remand for further proceedings not inconsistent with the views expressed herein.

8 . The doctrine of amelioration provides that if the legislature has seen fit to lessen the punishment for a particular crime, a person who committed the act prior to the effective date of the diminished penalty may be entitled to the sentencing benefits of the statutory amendment. See Lunsford v. State (1994) Ind.App., 640 N.E.2d 59. In order to gain such penal benefit, however, the statutory change must be in effect before sentencing. State v. Crocker (1979) Ind., 270 Ind. 377, 385 N.E.2d 1143. Although the doctrine ameliorates the actual sentence to be imposed, its rationale and purposes may well be applied in the parole context of eligibility for early release from physical incarceration as opposed to a lessening of the punishment itself.