MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Aug 21 2015, 9:00 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
David A. Arthur
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Pollard, August 21, 2015
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1411-MI-805
v. Appeal from the Marion Superior
Court
Michael Pence, as Governor of The Honorable Patrick L.
the State of Indiana, Bruce McCarty, Judge
Lemmon, as the Commissioner Trial Court Cause No.
of the Indiana Department of 49D03-1403-MI-9641
Correction, and the Indiana
Parole Board and current
members thereof,
Appellees-Plaintiffs
Baker, Judge.
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[1] In State v. Hernandez, our Supreme Court examined the law as it existed in 1975
and held that individuals serving life sentences for crimes committed at this
time are not eligible for parole. 910 N.E.2d 213 (Ind. 2009). James Pollard,
who is currently serving four life sentences for crimes he committed in 1975,
believes this decision was erroneous. Accordingly, Pollard filed a petition for
writ of mandamus in the trial court asking it to order the respondents, Governor
Pence, Commissioner Lemmon, and the Indiana Parole Board, to consider him
eligible for parole. The trial court denied the petition, and we are compelled to
affirm.
Facts
[2] On February 14, 1977, Pollard was sentenced to four concurrent terms of life
imprisonment following convictions for premeditated murder, second degree
murder, and two counts of kidnapping. Pollard committed these crimes on the
evening of November 25, 1975. His convictions were affirmed on appeal in
Pollard v. State, 270 Ind. 599, 388 N.E.2d 496 (Ind. 1979).1
[3] On March 26, 2014, Pollard filed a petition for writ of mandamus in the trial
court asking it to order “the Indiana Department of Correction to immediately
consider him eligible” for parole. Appellant’s App. p. 11. Pollard
acknowledged that, under our Supreme Court’s decision in Hernandez, he was
not eligible for parole. However, he argued that Hernandez was erroneously
1
See this case for a detailed account of the facts underlying Pollard’s convictions.
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decided and, consequently, constituted judicial legislation in violation of Article
III of the Indiana Constitution—relating to separation of powers—as well as the
ex post facto clauses of both the Indiana and the United States Constitutions.
The respondents filed a motion to dismiss under Indiana Trial Rule 12(b)(6),
arguing that no constitutional violation had occurred because Pollard had “not
been deprived of parole eligibility that he previously possessed.” Id. at 19.
[4] The trial court agreed with the respondents and dismissed Pollard’s petition. It
found that “[t]here was no legislating by the Supreme Court” in Hernandez
because “the Court was not creating law but saying what the law was in 1975.”
Id. at 6. Accordingly, it found no violation of any constitutional provisions
regarding the separation of powers or ex post facto laws. Pollard filed a motion
to correct error, which the trial court dismissed on October 20, 2014. Pollard
now appeals.
Discussion and Decision
[5] “A motion to dismiss for failure to state a claim tests the legal sufficiency of the
claim, not the facts supporting it.” Charter One Mortg. Corp. v. Condra, 865
N.E.2d 602, 604 (Ind. Ct. App. 2007). Accordingly, we review trial courts’
decisions on Rule 12(b)(6) motions de novo. Id. “A complaint may not be
dismissed for failure to state a claim upon which relief can be granted unless it
is clear on the face of the complaint that the complaining party is not entitled to
relief.” Id.
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[6] Here, Pollard commenced an action for mandate. “An action for mandate may
be prosecuted against any inferior tribunal, corporation, public or corporate
officer, or person to compel the performance of any: (1) act that the law
specifically requires; or (2) duty resulting from any office, trust, or station.”
Ind. Code § 34-27-3-1. An action for mandate will succeed only when the
petitioner has a clear and unquestionable right to relief and the respondent has
failed to perform a clear, absolute, and imperative duty imposed by law. State
ex rel. Steinke v. Coriden, 831 N.E.2d 751, 757 (Ind. Ct. App. 2005). Here,
Pollard argues that, by failing to consider him eligible for parole, the
respondents are acting pursuant to an erroneous decision of our Supreme Court
that, by virtue of being erroneous, functions as an unconstitutional legislative
action. Consequently, Pollard believes that in following such a decision, the
respondents are actually acting contrary to law.
[7] The decision to which Pollard directs our attention is State v. Hernandez, 910
N.E.2d 213 (Ind. 2009). In that case, Hernandez, much like Pollard, had been
sentenced to multiple terms of life imprisonment for crimes he had committed
in 1975. Id. Under our current parole eligibility statute, which became effective
in 1980, Hernandez, as well as Pollard, would clearly not be eligible for parole.
The statute provides:
A person sentenced upon conviction of more than one (1) felony
to more than one (1) term of life imprisonment is not eligible for
consideration for release on parole under this section.
Ind. Code § 11-13-3-2.
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[8] However, the statute that had been in effect in 1975 read quite differently. That
statute provided:
The Indiana parole board is hereby authorized to release on
parole, pursuant to the laws of the state of Indiana, any person
confined in any penal or correctional institution in this state
except persons under sentence of death.
Ind. Code § 11-1-1-9 (1971). Though the plain and unambiguous meaning of
this language seemed to be in Hernandez’s favor, in light of other statutory
provisions governing parole in existence at the time, our Supreme Court held
that those sentenced to life imprisonment when this statute was in effect could
not be considered eligible for parole. Hernandez, 910 N.E.2d at 217-21.
[9] While Pollard disagrees with this conclusion, this Court is simply not
positioned to review the propriety of a decision by our Supreme Court. As the
respondents correctly point out, we are bound by such decisions until they are
changed by legislative enactment or by the Supreme Court itself. T.H. v. R.J.,
23 N.E.3d 776, 787 (Ind. Ct. App. 2014), trans. denied.
[10] As for Pollard’s argument that the decision in Hernandez violated constitutional
prohibitions on ex post facto laws and constituted judicial legislation, we agree
with the trial court. “An ex post facto law is one which applies retroactively to
disadvantage an offender’s substantial rights.” Armstrong v. State, 848 N.E.2d
1088, 1092 (Ind. 2006). Underlying this prohibition is “‘the notion that persons
have a right to fair warning of that conduct which will give rise to criminal
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penalties.’” Id. at 1093 (quoting Marks v. United States, 430 U.S. 188, 191
(1977)).
[11] In Hernandez, our Supreme Court determined that, under the law as it existed in
1975, those serving life sentences were not eligible for parole. Hernandez, 910
N.E.2d at 221. Thus, the Court, in its estimation, had simply determined what
the law had always been. Pollard therefore suffered no disadvantage, as the law
had never given him the advantage he claims. The same analysis can be
applied to Pollard’s claim that the decision in Hernandez constitutes judicial
legislation. The Court was not creating anything new and, therefore, did not
“legislate.” See Black’s Law Dictionary (10th ed. 2014) (defining “legislate” as
“[t]o make or enact law”; “[t]o bring (something) into or out of existence by
making laws.”).
[12] Respondents argue that we need not have considered Pollard’s arguments at all
because the constitutional prohibition on ex post facto laws is a prohibition
placed on the legislature alone and “‘does not of its own force apply to the
Judicial Branch of government.’” Armstrong, 848 N.E.2d at 1093 (quoting
Marks, 430 U.S. at 191). We agree, however, this is not to say that individuals
are provided no constitutional protection from judicial interpretations that
effectively function as ex post facto laws. “[T]he Due Process Clause of the
Fifth Amendment, made applicable to the states by the Fourteenth
Amendment, protects offenders from judicial decisions that retroactively alter
the import of a law to negatively affect the offender’s rights without providing
fair warning of that alteration.” Id.
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[13] However, we are not at liberty to conclude that such is the case here. Not only
are we bound by our Supreme Court’s holding as to the meaning of the
previous parole eligibility statute, we are also bound by its implicit holding that
this is what the statute has always meant. Thus, we are compelled by Hernandez
to conclude that Pollard’s claims must fail.
[14] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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