Dec 08 2014, 10:02 am
FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
RANDAL L. YOUNG GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RANDAL L. YOUNG, )
)
Appellant-Plaintiff, )
)
vs. ) No. 32A05-1403-MI-148
)
INDIANA DEPARTMENT OF )
CORRECTION, BRUCE LEMMON, )
DAVID J. DONAHUE, STANLEY )
KNIGHT, EDWARD BUSS, THOMAS )
HANLON, JEFF WRIGLEY, BRIAN )
SMITH, LEO BORST, JASON GEIGER, )
CLINT FELDKAMP, SARA YOUNG, )
JULIE CUNNINGHAM, )
)
Appellees-Defendants. )
APPEAL FROM THE HENDRICKS COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-1308-MI-177
December 8, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Randal Young, who is currently incarcerated in the Indiana Department of
Correction (“DOC”), brought this suit challenging the constitutionality of the DOC’s
policy concerning the restoration of credit time for inmates. The trial court granted
judgment on the pleadings in favor of the DOC, and Young now brings this appeal pro se.
Young raises one issue for our review: whether the DOC’s policy regarding the
restoration of credit time denies equal protection of the law to prisoners serving
consecutive sentences. Concluding the DOC’s challenged policy does not result in
disparate treatment, we affirm the judgment of the trial court.
Facts and Procedural History
On February 6, 2004, Young was ordered to serve multiple consecutive sentences
on seven counts of robbery. See Indiana Offender Database, available at
http://www.in.gov/apps/indcorrection/ofs/ofs. According to Young’s complaint, during
the first three years of his incarceration, he was deprived of 750 days of credit time as a
result of various unspecified disciplinary violations. On October 5, 2007, Young filed a
petition with the DOC seeking restoration of that credit time. On October 13, 2007, the
DOC restored 173 days of credit time to Young. On October 4, 2008, Young filed a
second petition for restoration of credit time. However, at that time, Young had begun
serving time on a new sentence. Because the credit time he sought to recover was related
to a sentence previously completed rather than the sentence he was then serving, his
second petition was denied. That denial was based on written DOC policy stating that
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credit time sought to be restored must be credit time that was deprived during the
offender’s current sentence.
Subsequently, Young filed this action with the trial court seeking injunctive and
declaratory relief, alleging that the DOC’s policy concerning restoration of credit time
violates the Indiana and federal constitutions’ equal protection guarantees. The DOC
filed a motion for judgment on the pleadings, which the trial court granted. This appeal
followed.
Discussion and Decision
I. Standard of Review
Where a motion for judgment on the pleadings raises the same defense as a motion
to dismiss for failure to state a claim upon which relief may be granted, we apply the
standard applicable to a motion to dismiss under Indiana Trial Rule 12(B)(6). Culver-
Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994). We
review the decision de novo and ask “whether the allegations in the complaint establish
any set of circumstances under which a plaintiff would be entitled to relief.” Veolia
Water Indianapolis, LLC v. National Trust Ins. Co., 3 N.E.3d 1, 4 (Ind. 2014) (citation
omitted). We accept as true the facts pled in the complaint and draw every reasonable
inference in favor of the non-moving party. Id. at 4-5. However, we need not credit
nonfactual assertions and legal conclusions. McCalment v. Eli Lilly & Co., 860 N.E.2d
884, 890 (Ind. Ct. App. 2007).
II. Young’s Equal Protection Claim
A. Credit Time and Restoration
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Certain persons imprisoned with the DOC are entitled to earn credit time that will
be applied to the offender’s sentence. See Ind. Code §§ 35-50-6-3 and -4. However, an
inmate may be deprived of credit time when that person, among other things, violates
rules promulgated by the DOC or the penal facility in which the person is imprisoned.
Ind. Code § 35-50-6-5(a). Indiana law also states that “[a]ny part of the credit time of
which a person is deprived under this section may be restored.” Ind. Code § 35-50-6-
5(c).
The DOC’s Manual of Policies and Procedures sets out detailed procedures
concerning the deprivation of credit time, review of an inmate’s credit class, and the
restoration of earned credit time. See generally Indiana Department of Corrections
Manual of Policies and Procedures, The Disciplinary Code for Adult Offenders, available
at http://www.in.gov/idoc/3265.htm. Young challenges a provision of those polices that
restricts an offender’s ability to request restoration of credit time. That provision,
limiting a request for credit time to time deprived during the offender’s current sentence,
provides in relevant part: “[t]he credit time being requested must be credit time that was
deprived while serving the current sentence. Credit time deprived while serving a
previous sentence . . . can not be restored.” Indiana Department of Corrections Manual
of Policies and Procedures, The Disciplinary Code for Adult Offenders § IX.E-9(d),
available at http://www.in.gov/idoc/3265.htm (“Section IX.E-9(d)”).
B. Equal Protection Clause and Equal Privileges and Immunities Clause
Young argues that Section IX.E-9(d) violates his right to equal protection as
guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1,
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Section 23 of the Indiana Constitution. Specifically, he claims that Section IX.E-9(d)
unconstitutionally discriminates against offenders who are ordered to serve consecutive
sentences. We disagree.
The Equal Protection Clause of the Fourteenth Amendment provides that no State
shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
CONST. amend. XIV, § 1. The Indiana Constitution’s Equal Privileges and Immunities
Clause states that “[t]he General Assembly shall not grant to any citizen, or class of
citizens, privileges or immunities, which, upon the same terms, shall not equally belong
to all citizens.” IND. CONST. art. 1, § 23. Our supreme court has interpreted the Equal
Privileges and Immunities Clause in a way that creates an independent standard for
analyzing claims under the Indiana Constitution. See Collins v. Day, 644 N.E.2d 72, 74-
81 (Ind. 1994). That said, it is undeniable that the Equal Protection Clause and the Equal
Privileges and Immunities Clause “share substantially the same considerations.” Id. at
75. Put simply, both provisions seek to ensure equal treatment under the law. An equal
protection claim, under either the federal or Indiana constitution, must show “disparate
treatment” in order to be successful. Worman Enterprises, Inc. v. Boone Cnty. Solid
Waste Mgmt. Dist., 805 N.E.2d 369, 380-81 (Ind. 2004). Young has failed to make a
showing of disparate treatment in this case.
Young proceeds with his claim under the false premise that a person who serves
consecutive sentences is, in effect, serving a single sentence. From a legal standpoint,
this is simply untrue. “[C]onsecutive sentences are based upon the principle that each
separate and distinct criminal act should receive a separately experienced punishment.”
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Crider v. State, 984 N.E.2d 618, 621 (Ind. 2013). An offender who is convicted of
multiple crimes receives a separate sentence for each count. And the General Assembly’s
intent that consecutive sentences are meant to be considered separate and distinct is
evinced by its description of consecutive sentences as consecutive “terms of
imprisonment.” Ind. Code § 35-50-1-2(c) (emphasis added).
Section IX.E-9(d) stands for the unremarkable proposition that once an offender
serves out the term of a sentence, he may not later restore credit time deprived during that
sentence. This is true of all offenders, regardless of whether the sentence at issue is a
single sentence, a sentence served concurrent with another sentence, or a sentence served
consecutively with another sentence. Therefore, Section IX.E-9(d) does not result in
disparate treatment to offenders who serve consecutive sentences.
Ironically, Young claims discriminatory treatment but actually brings this action
based on his opinion that, for the purposes of restoring credit time, he should be treated
differently than an offender who serves a single sentence. Young believes that although
he has served the full term of a sentence, he should nonetheless be permitted to restore
credit time deprived during that previous sentence and apply it to the one he is currently
serving. Of course, a recidivist who is imprisoned for a crime today does not have the
luxury to restore credit time deprived during a different sentence he served years earlier
and have that time applied toward his current sentence. There is no legal distinction
between that recidivist and an offender serving consecutive sentences.
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Conclusion
We conclude that Section IX.E-9(d) of the DOC’s Disciplinary Code for Adult
Offenders, which limits restoration of credit time to credit time deprived during an
offender’s current sentence, does not violate the Equal Protection Clause of the
Fourteenth Amendment or Article 1, Section 23 of the Indiana Constitution as the policy
applies to offenders serving consecutive sentences. Because, as the DOC’s policy
currently stands, there is no set of circumstances under which Young’s claim entitles him
to relief, we affirm the judgment of the trial court.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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