George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board

FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
GEORGE PATRICK GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
Jun 18 2014, 9:40 am
IN THE
COURT OF APPEALS OF INDIANA
GEORGE PATRICK, )
)
Appellant-Petitioner, )
)
vs. ) No. 33A04-1311-MI-577
)
KEITH BUTTS, Superintendent, STATE OF )
INDIANA and INDIANA PAROLE BOARD, )
)
Appellees-Respondents. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Kit C. Dean Crane, Judge
Cause No. 33C02-1309-MI-94
June 18, 2014
OPINION - FOR PUBLICATION
MAY, Judge
George Patrick argues an order he participate in the Sex Offender Management and
Monitoring (“SOMM”) program violated his constitutional right against self-incrimination1
and Indiana’s prohibition of ex post facto laws. He asserts the denial of his petition for writ
of habeas corpus was therefore error.
We affirm.
FACTS AND PROCEDURAL HISTORY
Patrick was found guilty in 1991 of two counts of Class B felony rape and two counts
of Class C felony criminal confinement and was sentenced to thirty-two years. He was
released to parole in 2007. His parole was apparently revoked, and he filed a Petition for
Writ of State Habeas Corpus Relief. He asserted his parole was revoked “due to his
involuntary termination [sic] SOMM participation as a result of his special sex offender
stipulations as a condition of his parole.” (App. at 3.) The trial court denied his petition.
DISCUSSION AND DECISION
The order that Patrick participate in the SOMM program does not violate the ex post
facto clause of the Indiana Constitution. Generally, the ex post facto clause prohibits the
State from enacting a law that imposes a punishment for an act that was not punishable when
it was committed or imposes additional punishment to that then prescribed. Gomez v. State,
907 N.E.2d 607, 610 (Ind. Ct. App. 2009), trans. denied. But these prohibitions do not give a
criminal a right to be tried, in all respects, by the law in force when the crime charged was
1
Our Supreme Court recently held participation in the SOMM program did not violate a defendant’s right
against self-incrimination. Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). We therefore need not address that
specific allegation of error.
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committed. Id. The clause is not designed to limit legislative control of remedies and modes
of procedure that do not affect matters of substance. Id. Although it may work to the
disadvantage of a defendant, a procedural change is not ex post facto. Id. A statutory
revision is procedural in nature for purposes of the ex post facto doctrine, and may be applied
to crimes committed before the effective date, if it does not change the elements of a crime or
enlarge its punishment. Id.Patrick argues participation in the SOMM program is similar to the requirement to
register as a sex offender, which cannot be imposed on persons convicted before the
requirement was passed into law. See, e.g., Wallace v. State, 905 N.E.2d 371, 384 (Ind.
2007), reh’g denied. Wallace does not control.
The Parole Board is allowed to impose conditions that are “reasonably related to the
parolee’s successful reintegration into the community,” Ind. Code § 11-13-3-4-(b), and that
subsection was in place when Patrick was convicted. Our Supreme Court has found that the
SOMM program “is a valuable tool aimed at the legitimate purpose of rehabilitating sex
offenders before they are fully released from State control.” Bleeke v. Lemmon, 6 N.E.3d
907, 940 (Ind. 2014). As the Parole Board’s authority to impose conditions on parole is not
limited by the date on which the program was created, but rather is limited by the program’s
ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM
does not violate the ex post facto clause.
We affirm.
KIRSCH, J., and BAILEY, J., concur.
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