Oct 10 2013, 5:42 am
Pursuant to Ind.Appellate Rule 65(D),
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.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
COADY COYOTE CRADDICK GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COADY COYOTE CRADDICK, )
)
Appellant-Defendant, )
)
vs. ) No. 52A02-1211-MI-942
)
INDIANA DEPARTMENT OF CORRECTION, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MIAMI CIRCUIT COURT
The Honorable Douglas B. Morton, Judge Pro Tempore
Cause No. 52C01-1203-MI-116
October 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Coady Coyote Craddick appeals from the trial court’s order dismissing his complaint
against the Indiana Department of Correction (the DOC)1 alleging that it was violating the Ex
Post Facto Clause of the Indiana Constitution by classifying him as a sex offender under the
Indiana Sex and Violent Offender Registry Act (the Act).2 Finding as we do that the trial
court correctly concluded that none of Craddick’s claims against the DOC established
conduct amounting to punishment implicating Ex Post Facto Clause concerns, and that his
claims of deprivation of credit time for failing to participate in a DOC program are not yet
ripe for consideration, we affirm.
Craddick is an offender in the custody of the DOC as the result of his convictions and
sentences. More particularly, on April 24, 1984, Craddick pleaded guilty to one count of
class A felony rape, one count of class A felony kidnapping, and one count of class C felony
robbery. The trial court imposed two thirty-five-year sentences to be served consecutively
and one eight-year sentence to be served concurrently. In a separate case on that same date,
Craddick pleaded guilty to one count of class A felony rape, one count of class B felony
burglary, and one count of class B felony robbery. For those convictions he was sentenced to
terms of forty years, twenty years, and twenty years, respectively. Craddick has been
incarcerated in the DOC continuously since 1984 with an earliest possible release date of July
22, 2016. See http://www.in.gov/apps/indcorrection/ofs (last visited September 24, 2013).
1 Craddick’s complaint also named Commissioner Bruce Lemmon in the caption, but did not include any
claims against Commissioner Lemmon. Craddick’s complaint alleges claims against the State of Indiana and
the DOC.
2 Ind. Code Ann. §§ 11-8-8-1 through 11-8-8-22 (West, Westlaw current with all 2013 legislation).
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On April 11, 2011, Craddick filed a petition requesting relief from registering as a sex
offender under the Act. On June 28, 2011, the trial court entered an order concluding that
Craddick was not required to register as a sex offender under the Act, but the order did not
bar the Indiana Parole Board from requiring registration as a condition of parole. Further, the
order specifically stated that the order was applicable to Indiana law and was not intended to
affect any national registration requirements under the Sex Offender Registration and
Notification Act.3
On March 15, 2012, Craddick filed a complaint against the DOC claiming that it was
using the Act to classify him as a sex offender in violation of the Ex Post Facto Clause of the
Indiana Constitution. Craddick claimed that the Act was an ex post facto law as applied to
him, as shown by the trial court’s June 28, 2011 court order. He further claimed that the use
of a provision of the Act to classify him as a sex offender and place restrictions upon him,
including limits on receiving earned credit time and work release status, and the requirement
that he participate in sex offender therapy programs, were ex post facto violations. In its
response, the DOC argued that Craddick had not been exposed to any ex post facto
punishment, and that the DOC had discretion regarding where an offender is placed and what
therapy he receives.
The trial court held a hearing on the matter and issued an order dismissing Craddick’s
complaint. The trial court found that none of the matters regarding credit time, work release
or the Sex Offender Management and Monitoring Program (SOMM) constituted punishment
3
42 U.S.C.A. § 16911 et seq.
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and consequently there was no ex post facto violation by the DOC. The trial court also
determined that Craddick’s complaint of deprivation of credit time for failing to participate in
SOMM was not yet ripe for consideration.
Craddick appeals, challenging the trial court’s order, which includes findings of fact
and conclusions thereon.
When reviewing a judgment accompanied by findings and conclusions issued
pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard to review.
We examine the record to determine whether the evidence supports the
findings and then determine whether the findings support the judgment. “[W]e
disturb the judgment only where there is no evidence supporting the findings
or the findings fail to support the judgment.” In conducting this review, we
consider only the evidence favorable to the judgment, without reweighing that
evidence. Therefore, it is clear that the challenger’s burden is a heavy one, but
one that may be overcome by a showing that the trial court's findings are
clearly erroneous.
The particular clearly erroneous standard that is to be employed depends upon
whether the appealing party appeals a negative or an adverse judgment. A
negative judgment is one that was entered against a party bearing the burden of
proof; an adverse judgment is one that was entered against a party defending
on a given question, i.e., one that did not bear the burden of proof.
Romine v. Gagle, 782 N.E.2d 369, 376 (Ind. Ct. App. 2003) (internal citations omitted).
Here, Craddick challenges what he perceives to be the DOC’s application of the Act
to him by restrictions placed on him. The DOC contends that while application of the Act to
require Craddick to register as a sex offender in the sex offender registry would constitute an
ex post facto violation as applied to him, stipulations or restrictions placed on Craddick due
to the nature of his offenses do not rise to the level of ex post facto violations. For reasons
explained fully below, we agree with the State.
4
Ind. Code Ann. § 35-50-6-3.3(d)(8) (West, Westlaw current with all 2013 legislation)
provides with respect to credit time for the successful completion of an education degree that
“a person who is serving a sentence for an offense listed under IC 11-8-8-4.5 may not earn
credit time under this subdivision.” Enumerated within this statute defining sex offender, is
rape. I.C. § 35-42-4-1. It is uncontroverted that Craddick was convicted of two counts of
rape, and thus, would not be eligible for credit time. Craddick maintains, however, that I.C. §
11-8-8-4.5, is an ex post facto law as applied to him, and consequently any cross-reference by
the legislature in I.C. § 35-50-6-3.3 is impermissible. Craddick contends that the DOC is
prohibited from using the list under I.C. § 11-8-8-4.5 to classify him as a sex offender and
deny him credit time for completion of the PLUS program (reformative program).
The State correctly notes that there was no evidence before the trial court that
Craddick had completed any of the requirements of the PLUS program. The evidence
submitted suggests that he was told that pursuant to statute, he would not be able to receive
credit time for completion of the PLUS program. Furthermore, the list of crimes in I.C. § 11-
8-8-4.5 is an efficient means of referencing all sex crimes instead of reproducing the list in
other portions of the Indiana Code. We disagree with Craddick’s conclusion that a restriction
on credit time is an impermissible ex post facto law by association with a definitional section
in the Act.
Additionally, to the extent Craddick seems to suggest that I.C. § 35-50-6-3.3(d)(8) is
an ex post facto law as applied to him, this argument fails.
The United States Constitution provides that “[n]o State shall . . . pass any . . .
ex post facto Law.” U.S. Const. art. I, § 10. The Indiana Constitution
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provides that “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art.
I, § 24. Among other things, “[t]he ex post facto prohibition forbids the
Congress and the States to enact any law ‘which imposes a punishment for an
act which was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S.
24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri,
71 U.S. (4 Wall.) 277, 325–26, 18 L.Ed. 356 (1867)). The underlying purpose
of the Ex Post Facto Clause is to give effect to the fundamental principle that
persons have a right to fair warning of that conduct which will give rise to
criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006).
Jensen v. State, 905 N.E.2d 384, 389-90 (Ind. 2009).
At the time Craddick committed his offenses and was sentenced, 1984, there was no
educational credit time statute in place. I.C. § 35-50-6-3.3 was enacted in 1993. Budd v.
State, 935 N.E.2d 746 (Ind. Ct. App. 2010). In 2010, subsection (d)(8) was added to provide
that credit time for reformative programs was not available for those guilty of certain
offenses. See Pub. Law 42-2010. Craddick has not been deprived of credit time available to
him at the time of his offenses in 1984, nor has the penalty for rape committed in 1984 been
increased. The trial court did not err by dismissing Craddick’s claim.
Craddick also claims that the DOC’s improper classification of him as a sex offender
denied him entitlement to work release. The State correctly notes that Craddick has failed to
show that he was entitled to serve a portion of his sentence on work release at the time he
committed his crimes and was sentenced. Craddick fails to cite to a statute or DOC policy
that deprived him of a right to be placed on work release. Instead, Craddick’s evidence
consists of a classification appeal where he contends he is not allowed to obtain work release.
Craddick repeats his argument in this context that the DOC’s use of the statutory definition
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of sex offender to restrict his ability to be placed on work release amounts to an ex post facto
violation. But even if the DOC used the statutory definition to classify Craddick’s offender
status, it would not be depriving him of placement on work release. As our Supreme Court
has previously stated with respect to the classification of sexually violent predator, “The
statute does not grant the DOC any authority to classify or reclassify.” Lemmon v. Harris,
949 N.E.2d 803, 815 (Ind. 2011). That was so because the statute defined sexually violent
predator status. The same is true here.
Besides, placement decisions and the nature of incarceration are exclusively within the
control of the DOC. “After sentencing, the custody of the defendant is with the Executive
branch, represented by the Department of Correction[].” Barnes v. State, 435 N.E.2d 235,
242 (Ind. 1982). “The determination of the locale for incarceration is a function vested by
the legislature in the Department of Correction[].” Id. “[T]he selection of a site for
incarceration and the nature of that incarceration are matters within the domain of the
Department of Correction . . . .” Albright v. State, 463 N.E.2d 270, 272 (Ind. 1984). What
these holdings reveal is that the DOC has the ultimate authority to determine where an
offender is incarcerated and whether placement in a work-release facility is warranted.
Craddick has failed to establish clear error in the dismissal of his claim.
Craddick also asserts that the DOC’s allegedly inappropriate classification of him as a
sex offender and requirement to participate in the SOMM program while incarcerated
establishes an ex post facto violation. Craddick has failed to present evidence that the DOC
uses I.C. § 11-8-8-4.5 to determine who must participate in the SOMM program. Assuming
7
arguendo that the DOC did use the list in its determination of SOMM program participation,
the requirement to participate would not constitute an ex post facto violation. For example,
in Hevner v. State, 919 N.E.2d 109 (Ind. 2010), the Supreme Court held that while
prosecution for violation of a residency restriction statute would violate ex post facto
concerns, use of that restriction as a condition of probation would neither be unreasonable
nor an ex post facto violation because it has a reasonable relationship to the treatment of the
offender and protection of the public.
Our conclusion that participation in the SOMM program is not an ex post facto
violation finds support in the fact that required participation is not punishment. As the trial
court found, the SOMM program is a therapeutic program designed to help an offender
successfully re-integrate into society post-incarceration. Participation in the program is not
additional punishment and does not alter Craddick’s sentence. To the extent that Craddick
contends that he will be subjected to deprivation of earned credit time if he does not
participate in the SOMM program, that contention is not ripe for consideration. Craddick’s
re-entry accountability plan shows that he is not required to complete the SOMM program
until he is within three years of his release. Craddick presented his argument to the trial court
in 2012, but his earliest release date is in 2016.
“Ripeness involves the timing of judicial review and the principle that judicial
machinery should be conserved for problems that are real and present or imminent, not
squandered on problems that are abstract or hypothetical or remote.” In re Paternity of
M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001). A trial court lacks jurisdiction over
8
claims that are not yet ripe for review. Porter Mem’l Hosp. v. Malak, 484 N.E.2d 54, 60
(Ind. Ct. App. 1985). The events of which Craddick complains may or may not occur and the
program may or may not exist when he is eligible to participate.
The SOMM program is a program provided to inmates during their incarceration. We
have held that the sex offender parole stipulations may include the requirement of attending
treatment programs if the programs are reasonably related to a parolee’s reintegration into the
community and are not unduly restrictive of a fundamental right. Harris v. State, 836 N.E.2d
267 (Ind. Ct. App. 2005); Ind. Code Ann. § 11-13-3-4(b) (West, Westlaw current with all
2013 legislation). This is true even if the parolee has not been convicted of a sex offender
crime. Weiss v. Ind. Parole Bd., 838 N.E.2d 1048 (Ind. Ct. App. 2005).
In sum, the trial court’s findings are supported by the evidence and the findings
support the trial court’s conclusions and judgment. Craddick has failed to establish clear
error.
Judgment affirmed.
BAKER, J., and VAIDIK, J., concur.
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