Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                     Oct 31 2013, 5:23 am
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:

JEFFREY E. HOWELL                                   GREGORY F. ZOELLER
New Castle Correctional Facility                    Attorney General of Indiana
New Castle, Indiana
                                                    KATHY BRADLEY
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFREY E. HOWELL,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 33A01-1305-MI-245
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE HENRY CIRCUIT COURT
                          The Honorable Kit C. Dean Crane, Judge
                              Cause No. 33C02-1209-MI-118



                                         October 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

          Jeffrey E. Howell, a convicted sex offender, is currently serving a sentence in the

Indiana Department of Correction (“DOC”) on a conviction for failure to register as a sex

offender. As part of his incarceration, Howell is required to participate in the Sex Offender

Management and Monitoring (“SOMM”) program. The SOMM program requires offenders

to admit guilt to sexual offending behavior for which they have been convicted. Although

Howell participates in the SOMM program, he refuses to admit guilt regarding a prior child

solicitation conviction, claiming that requiring him to do so violates his Fifth Amendment

rights. Howell has been repeatedly disciplined by the DOC, including loss of earned credit

time and demotion of credit class, due to his refusal to admit guilt. Accordingly, Howell

filed motions with the trial court for preliminary injunction and restoration of credit time and

class. The trial court denied Howell’s motions, concluding that it was without jurisdiction to

review or set aside disciplinary actions taken against a prisoner by the DOC. Howell, pro se,

now appeals the trial court’s denial. We address two restated issues on appeal, namely

whether the trial court had subject matter jurisdiction to review Howell’s claims and whether

the SOMM program’s requirements, as applied to Howell, violate the Fifth Amendment.

Concluding that the trial court had subject matter jurisdiction and that the SOMM program’s

requirements violate the Fifth Amendment, we reverse.

                               Facts and Procedural History

       In February 2009, after pleading not guilty, Howell was convicted in Marion County

of one count of class C felony child solicitation. He was sentenced to four years in the DOC


                                               2
with two years suspended to probation.1 On October 19, 2011, Howell was released early

and began serving parole. However, on January 11, 2012, Howell was arrested in Lawrence

County for failure to register as a sex offender. Howell pled guilty to the failure to register

charge and was sentenced to two years in the DOC. Howell was assigned to the New Castle

Correctional Facility to execute the remainder of his Marion County sentence as well as to

serve his Lawrence County sentence. Howell completed the sentence on his Marion County

conviction on October 19, 2012. According to Howell, the maximum release date on his

Lawrence County conviction is January 9, 2014.

       On or about May 28, 2012, Howell was notified that, as part of his incarceration, he

was required to participate in the DOC’s SOMM program. In the SOMM program, an

offender is required to admit sexual behavior for which he has been convicted. If the

offender refuses to admit such behavior, he is asked to submit to a polygraph test.

Participants in the SOMM program are also informed that anything they say can be reported

to law enforcement officials. Howell participated in the SOMM program, but he refused to

admit guilt regarding his child solicitation conviction and refused to submit to a polygraph

test, claiming that forcing him to do either constituted a violation of his Fifth Amendment

privilege against self-incrimination. On at least three separate occasions, Howell was issued

a conduct report and was disciplined for failure to successfully participate in the mandatory




       1
         Another panel of this Court affirmed Howell’s conviction in Howell v. State, No. 49A02-0903-CR-
281, 2009 WL 3364798 (Ind. Ct. App. Oct. 20, 2009), trans. denied (2010).


                                                   3
SOMM program. The discipline included disciplinary segregation, loss of commissary and

phone privileges, deprivation of earned credit time, and demotion in credit class.

       On October 10, 2012, Howell filed a pro se motion for restoration of credit time and

class and a motion for preliminary injunction. The trial court denied those motions on

November 26, 2012. Then, on April 3, 2013, Howell filed a renewed motion for restoration

of credit time and class and a renewed emergency motion for temporary restraining order and

preliminary injunction. In his motions, Howell cited to the Fifth Amendment as well as

recent Indiana case law to support his claims. The trial court denied both motions,

concluding that it did not have jurisdiction to review or set aside disciplinary actions taken

against a prisoner by the DOC. Howell subsequently filed a motion to correct error, which

the trial court denied on May 10, 2013. This appeal ensued.

                                  Discussion and Decision

                               I. Subject Matter Jurisdiction

       We begin by addressing the trial court’s denial of Howell’s motions based on its

conclusion that it was without subject matter jurisdiction to review his claims. Specifically,

the trial court cited Israel v. Indiana Department of Correction, 868 N.E.2d 1123, 1124 (Ind.

2007), for the well-settled proposition that Indiana courts do not have jurisdiction to review

or set aside prison disciplinary actions. While we agree with that general proposition, our

appellate courts have held that the judiciary may review other types of DOC actions. See,

e.g., Ratliff v. Cohn, 693 N.E.2d 530, 548 (Ind. 1998) (holding that a juvenile may seek

declaratory and injunctive relief on basis that her incarceration with adult offenders violated


                                              4
Indiana Constitution); Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind. Ct. App. 2007)

(concluding that trial court has jurisdiction if allegation is made that constitutional rights are

being violated), trans. denied; Montgomery v. Indiana Dep’t of Corr., 794 N.E.2d 1124,

1127 (Ind. Ct. App. 2003) (stating that judiciary has subject matter jurisdiction over alleged

violations by DOC of inmates’ statutory and constitutional rights), trans. denied (2004).

       Most recently, in State v. Moore, 909 N.E.2d 1053, 1055 (Ind. Ct. App. 2009), trans.

denied (2010), a prisoner filed a motion with the trial court, similar to Howell’s, requesting

the restoration of credit time and challenging the DOC’s disciplinary deprivation of various

privileges, arguing that the SOMM program’s requirement that he admit guilt and/or submit

to a polygraph violated his Fifth Amendment right against self-incrimination. The trial court

granted the prisoner’s motion and ordered the DOC to restore credit time and reinstate

privileges. Id. at 1056. The DOC appealed, challenging the trial court’s subject matter

jurisdiction. Id. On appeal, we explained that the question of the trial court’s subject matter

jurisdiction depended on whether the prisoner raised only a challenge to the DOC’s

disciplinary actions resulting from his refusal to admit guilt or whether his challenge was

rooted in the Fifth Amendment. Id. Because the gravamen of the prisoner’s challenge was

based on the constitutionality of certain requirements of the SOMM program, we concluded

that the trial court had subject matter jurisdiction to review his claim. Id. at 1057. Indeed,

we explained,

       DOC cannot violate a prisoner’s constitutional right against self-incrimination
       under the Fifth Amendment, impose sanctions because the prisoner asserts his
       rights, and then hide behind the shibboleth of “no review of prison disciplinary
       matters.”

                                                5
Id.

       In his pro se motions to the trial court, Howell specifically cited to the Fifth

Amendment as well as various Indiana cases, including our decision in Moore, to support his

request for relief. There is no question that Howell’s claims regarding the SOMM program

are rooted in the Fifth Amendment. Accordingly, the trial court had subject matter

jurisdiction to review Howell’s claims, and the court erred when it denied his motions on the

basis that it lacked such jurisdiction.

                               II. Constitutionality of SOMM

       Having determined that the trial court erroneously denied Howell’s claims on

jurisdictional grounds, we must consider whether this case presents an appropriate

opportunity for this Court to rule on the constitutionality of the SOMM program’s

requirements as applied to Howell. As we noted in Moore, “[i]t is long established that a

constitutional question unnecessary to a determination of the merits should not be decided.”

Id. at 1058 (citations omitted). Here, however, because the trial court on remand would be

without guidance to resolve Howell’s claims, we choose to address the constitutional

question.

       Another panel of this Court recently held that the SOMM program’s requirements, as

applied to a parolee, violated the Fifth Amendment. See Bleeke v. State, 982 N.E.2d 1040,

1054 (Ind. Ct. App. 2013), trans. granted. In Bleeke, a parolee was required to participate in

the SOMM program and admit to sexual acts that he had denied in trial testimony, or risk

revocation of his parole. We first observed that


                                              6
              [t]he Fifth Amendment, applicable to the states through the Fourteenth
       Amendment, provides that no person “shall be compelled in any criminal case
       to be a witness against himself.” In order for the privilege to apply, two
       distinct elements must be present: compulsion and incrimination. Hiibel v.
       Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 189, 124 S. Ct. 2451, 159 L. Ed.
       2d 292 (2004).

               The compulsion element of the privilege against self-incrimination is
       present when the state attaches sufficiently adverse consequences to a refusal
       to surrender the privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.
       Ct. 2132, 53 L. Ed. 2d 1 (1977). The incrimination element refers to the fact
       that a surrender of the privilege “might be dangerous because injurious
       disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87, 71
       S. Ct. 814, 95 L. Ed. 1118 (1951). Although the danger of incrimination must
       be real and appreciable, and not simply imaginary and unsubstantial, the
       inquiry into whether a statement is incriminating should not consider the actual
       likelihood of prosecution. Resnover v. Pearson, 965 F. 2d 1453, 1462 (7th
       Cir. 1992) (holding that “We cannot agree that a witness’ constitutional
       privilege against self-incrimination depends upon a judge’s prediction of the
       likelihood of prosecution”). “[I]t is only where there is but a fanciful
       possibility of prosecution that a claim of Fifth Amendment privilege is not well
       taken.” In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir.
       1979).

Id. at 1053.

       After reviewing this Fifth Amendment jurisprudence, the Bleeke court found more

specific guidance from our supreme court’s opinion in Gilfillen v. State, 582 N.E.2d 821

(Ind. 1991). In Gilfillen, a convicted child molester’s probation was revoked because he

refused to admit guilt during his required probationary sexual abuse treatment program. Id.

at 823. Our supreme court noted that the defendant had regularly attended the ordered

counseling programs. Id. The court also noted that because the defendant did not plead

guilty to his offenses, he had never admitted to having any child molesting problem and, in

fact, continued to maintain his innocence. Id. The court concluded, “[u]nder these


                                              7
circumstances, requiring Gilfillen to admit he has a problem with child molesting or face

revocation of his probation is tantamount to requiring that he admit that he is guilty of the

crimes charged. Clearly this in unacceptable.” Id. The court went on to hold that “the trial

court may not insist on an admission of guilt as a condition of probation or use a continued

denial of guilt as the basis for revocation.” Id. at 824. The Bleeke court observed that, in

Moore, we had previously determined that although Gilfillen makes no specific reference to

the Fifth Amendment, our supreme court’s decision was clearly grounded on the Fifth

Amendment. Bleeke, 982 N.E.2d at 1054 (citing Moore, 909 N.E.2d at 1056 n.1).

       Considering the decisions in Gilfillen and Moore, and after reviewing a series of

federal cases, the Bleeke court gleaned that Indiana courts appear to hold a broader view of

the Fifth Amendment than that held by our federal colleagues. Id. The Bleeke court

ultimately held,

       The upshot of this case is that the potential for revocation of parole forces
       Bleeke to give up his Fifth Amendment privilege or possibly return to prison.
       And although the five-year statute of limitation for perjury has expired, Bleeke
       is still subject to the possible use by law enforcement of any other
       incriminating statements. The SOMM program’s requirements violate the
       Fifth Amendment.

Id.

       We acknowledge that our supreme court has granted transfer in Bleeke, thereby

vacating that decision. Ind. Appellate Rule 58(A).2 However, because we agree with the




       2
           Our supreme court is scheduled to hear oral argument in Bleeke on December 5, 2013.


                                                    8
reasoning in Bleeke regarding the SOMM program’s requirements, we simply adopt that

reasoning as our own in the analysis of the present case.

        Similar to the defendants in Gilfillen, Bleeke, and Moore, Howell has not pled guilty

and was instead convicted while denying guilt. The DOC, through its SOMM program, may

not insist on Howell’s admission of guilt or use his continued denial of guilt as the basis for

discipline.3 This is a violation of Howell’s Fifth Amendment privilege against self-

incrimination.

                                                Conclusion

        The trial court had subject matter jurisdiction to consider Howell’s claims, and

therefore the court erred when it denied Howell’s motions on jurisdictional grounds.

Moreover, the SOMM program’s requirements that Howell admit guilt and/or submit to a

polygraph violate the Fifth Amendment. Accordingly, we reverse the judgment of the trial

court and remand with instructions to enter an order granting Howell’s renewed motion for

restoration of credit time and class. We also instruct the trial court to enter an order enjoining

the DOC from requiring Howell to incriminate himself as part of the SOMM program. 4




        3
          The State does not assert, nor do we discern, any reason to consider the constitutionality of the
SOMM program’s requirements applied to inmates, such as Howell and the defendant in Moore, any
differently than we have considered those requirements as applied to probationers and parolees, as in Gilfillen
and Bleeke.
        4
          Howell raises an additional claim that he cannot be required to participate in the SOMM program
because he has already completed the sentence on the child solicitation conviction and is now serving only his
sentence for failure to register as a sex offender. Appellant’s Br. at 11. Howell cites no authority to support
his claim, and therefore he has waived the issue on appeal. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind.
Ct. App. 2005) (holding that an issue is waived when a party fails to provide adequate citation to proper
authority), trans. denied.

                                                      9
      Reversed and remanded.

BARNES, J., and PYLE, J., concur.




                                    10
