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Friday, May 04, 2012

Ind. Law - "Marion County Superior Court Judge Carol Orbison protests Wheat's early release" [Updated]

Updating the second part of this ILB from May 2nd, Dan McFeely reports today in the Indianapolis Star:

The judge who sentenced former Lawrence swim coach Chris Wheat to prison has told the Indiana Department of Corrections that allowing Wheat to leave prison early -- by using old college credits toward a new degree that cut his prison term -- is a violation of the spirit, if not the letter, of state law.

Marion County Superior Court Judge Carol Orbison exchanged e-mails with a DOC attorney on Wednesday and Thursday in which she said she was "deeply concerned" with the way state law was being interpreted for prisoners.

In essence she objects to the DOC's practice of allowing prisoners to apply old college credits as a way to get out of prison more quickly, as was the case with Wheat, who served less than two years of an eight-year sentence for sexual misconduct with a minor.

Wheat was released from state prison Thursday, according to Doug Garrison, a spokesman for the DOC.

In addition to the judge, the victim's family and a state lawmaker are hoping to work on strengthening the law next year to prevent this from happening again.

Citing an Appeals Court case (Miller v. Bryant), Orbison said the application of educational credits should be limited to those obtained "while incarcerated." In Wheat's case, his credits were from a previous degree earned in 1995 and applied to a new degree obtained by Oakland City University.

"This award of credit violates the intended purpose of the law as enunciated in the Miller case, if not the letter of the law," she wrote in the e-mail, which she shared with The Star. The law, she said, "contemplates that the work for which the credit time is awarded is work completed while confined by the Department of Corrections."

The DOC response, which she also shared with The Star, argued that the Miller case involved a person who had earned all of his credits prior to incarceration.

Wheat's case is not unique, a DOC attorney told the judge. Many offenders since the law was enacted in 1993 have achieved college degrees by incorporating college credits earned in the past. The law has never been modified to mandate anything different.

"We have treated Mr. Wheat in a manner consistent with thousands of similarly situated offenders. He has been dealt with no better, and no worse, than other persons who have earned college degrees," the DOC response said. "To single him out for disparate methodology for calculating earned credit time would seem to be inappropriate, and would subject this agency to a risk of substantial liability."

The ILB has located Miller v. Bryant, a 1995 COA opinion.

In Part II of the opinion, the Court quotes IC 35-50-6-3.3(c), which read:

(c) A person does not earn credit time under subsection (a) unless the person completes at least a portion of the degree requirements after June 30, 1993.
The opinion concluded:
The legislature imposed a temporal requirement to qualify for reduction which would ensure that attainment of the degree may have been motivated, at least in part, by I.C. 35-50-6-3.3. We therefore conclude that the statute was intended to provide incentive to further one's education while incarcerated. Mindful of the legislative intent and purpose underlying I.C. 35-50-6-3.3, we next address whether receiving a degree is "completing a portion of a degree" within the meaning of I.C. 35-50-6-3.3.

The term "completing" focuses on the actions of the prisoner. The statute was intended to provide incentive to prisoners to affirmatively act, i.e., to complete requirements for attaining a degree. Conferring an associate's decree upon Bryant, which occurred on July 23, 1993, was a ministerial act on the part of Ball State University, not Bryant, and required no action on Bryant's part. Presenting the degree to Bryant merely signified that Bryant had completed all portions of his degree requirements. Unfortunately for Bryant, he completed all tasks required of him which were necessary to earn his degree before the effective date of I.C. 35-50-6-3.3. There remained nothing for Bryant to do, i.e., no portion of the degree to complete, after the effective date of the statute.

We hold that, consistent with the legislature's intent in enacting I.C. 35-50-6-3.3, receiving a diploma does not constitute "completing a portion of a degree" within the meaning of the statute. We therefore reverse the trial court's determination that Bryant was entitled to a one-year sentence reduction. Reversed.

IC 35-50-6-3.3 has been amended several times since 1995. The language in effect now (scroll down to version b, eff. July 1, 2011 ) contains a similar provision at both subsections (f) and (g).

[Update] IC 35-50-6-3.3 was amended again this year, by HEA 1200-2012, SECTION 11. The changes are effective July 1, 2012. The change is to subection (j). But a reading of the entire section may be instructive.

Posted by Marcia Oddi on May 4, 2012 09:45 AM
Posted to Indiana Law