MEMORANDUM DECISION                                              FILED
                                                             Jun 15 2016, 7:15 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                 CLERK
this Memorandum Decision shall not be                        Indiana Supreme Court
                                                                Court of Appeals
regarded as precedent or cited before any                         and Tax Court

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
Timothy E. Strowmatt                                     Gregory F. Zoeller
New Castle, Indiana                                      Attorney General of Indiana

                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy E. Strowmatt,                                    June 15, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         33A04-1505-MI-498
        v.                                               Appeal from the Henry Circuit
                                                         Court
Indiana Department of                                    The Honorable Kit C. Dean Crane,
Correction, et al,                                       Judge
Appellee-Plaintiff.                                      The Honorable Peter D. Haviza,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         33C02-1207-MI-71



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016    Page 1 of 19
[1]   Timothy Strowmatt, an inmate at the New Castle Correctional Facility,

      initiated this lawsuit against a number of State officials1 (collectively, the State),

      challenging various aspects of laws passed to govern post-conviction conduct of

      sex offenders as unconstitutional violations of his due process rights and the

      prohibition against ex post facto laws. The trial court granted summary

      judgment in favor of the State on all of Strowmatt’s claims. On appeal,

      Strowmatt, pro se, presents two issues for our review, which we restate as the

      following:

              1. Was Strowmatt afforded sufficient notice that his convictions
              for attempted criminal confinement triggered application of the
              Indiana Sex Offender Registration Act (INSORA)?


              2. Is INSORA void for vagueness as applied to him given that
              his convictions for attempted criminal confinement constitute a
              sex offense without a showing of a specific intent to commit a
              sexual act?


              3. Is the 2006 amendment to Ind. Code § 35-50-6-5, which
              authorizes the deprivation of credit time or reduction of credit
              class if an offender refuses to register as a sex offender or refuses
              to participate in the Indiana Sex Offender Monitoring and
              Management (INSOMM) program, an unconstitutional ex post
              facto law as applied to Strowmatt?




      1
       Strowmatt named Bruce Lemmon, Commissioner of the Indiana Department of Correction (DOC), Thor
      Miller, Chairman of the Indiana Parole Board, and Keith Butts, Superintendent of the New Castle
      Correctional Facility, as respondents.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 2 of 19
[2]   We affirm.


                                         Facts & Procedural History2


[3]   Strowmatt was born on May 12, 1963. On or about January 27, 1992,

      Strowmatt committed the crime of child molesting, a Class C felony, against a

      twelve-year-old child. Strowmatt was convicted of that crime and sentenced to

      four years, with one year executed and three years suspended to probation. On

      or about May 20, 1994, while still on probation, Strowmatt molested a six-year-

      old child and was charged with child molesting as a Class B felony. He was

      convicted of this crime3 and sentenced to twenty years, with ten years executed

      and ten years suspended.4 Additionally, Strowmatt’s probation for the 1992

      conviction was revoked, and the trial court ordered the sentence for the 1994

      conviction be served consecutive to the balance of the sentence imposed in

      1992. Upon his release to probation in December 2002, Strowmatt was

      required to register annually as a sex offender.




      2
       Strowmatt provided this court with a minimal record in support of his appellate arguments. The State filed
      an Appendix of Appellees to supplement Strowmatt’s appendix. We have pieced together the facts and
      procedural history from the appendices submitted by the parties. Because the underlying facts are not in
      dispute, we relied in large part on the facts as found by the trial court and set forth in its summary judgment
      order.
      3
       Strowmatt’s conviction was affirmed by this court on direct appeal. See Strowmatt v. State, 686 N.E.2d 154,
      159 (Ind. Ct. App. 1997).
      4
       In an appeal from the denial of post-conviction relief, this court noted that the trial court ordered
      “imprisonment as a condition of probation for the opportunity of treatment that could possibly be available
      by the time the term of probation arrived.” See Strowmatt v. State, 779 N.E.2d 971, 976 (Ind. Ct. App. 2002).
      This court further noted the trial court’s concern that “until the proper treatment was available, society
      needed to be protected.” Id.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016                Page 3 of 19
[4]   On or about April 5, 2004, Strowmatt tried to grab a nine-year-old child and

      pull the child into his vehicle. In a separate, unrelated incident the same day,

      Strowmatt offered an eight-year-old child money to get into his car. The State

      charged Strowmatt under Cause No. 71D03-0404-FC-119 with two counts of

      attempted criminal confinement as Class C felonies, one count for each

      incident. The State also alleged Strowmatt to be a habitual offender. Following

      a bench trial, Strowmatt was found guilty as charged and adjudged to be a

      habitual offender. On January 5, 2005, the trial court sentenced Strowmatt to

      an aggregate term of twenty-eight years. Strowmatt is currently incarcerated at

      the New Castle Correctional Facility.


[5]   At some point, Strowmatt was advised by the DOC that he was classified as

      “F5”5 due to his status as a sex offender. Appellant’s Appendix at 20. On

      October 27, 2010, Strowmatt challenged his classification. The DOC

      responded, informing him that his classification was based upon his prior felony

      convictions for child molesting. On November 2, 2010, Strowmatt asked for an

      explanation of how his most recent convictions for attempted criminal

      confinement warranted such classification. The DOC responded, again

      informing him that “‘your prior crimes make you an F5. Sex offenses stay with

      you.’” Id. On December 28, 2010, Strowmatt again appealed his classification.




      5
       The record indicates that an F5 classification means that an inmate is ineligible for work release or
      minimum security housing, among other alternatives to incarceration offered by the DOC.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016                Page 4 of 19
      The DOC reaffirmed that he was “‘classified correctly based on current

      criteria.’” Id. at 21.


[6]   On March 1, 2011, the DOC indicated that Strowmatt’s classification was due

      to current and prior offenses. The Supervisor of Classification approved the

      decision regarding Strowmatt’s classification and indicated “‘pending transfer

      to NCF for [IN]SOMM.’” Id. at 21. On March 10, 2011, Strowmatt informed

      the DOC that he would not participate in INSOMM until all legal process was

      complete. The following day, Strowmatt appealed the transfer decision.

      Strowmatt argued that “under current policy consideration, criminal

      confinement cases must be reviewed on a case by case basis. This is an

      ‘attempt.’ It does not meet the same criminal elements as an actual

      confinement case. Therefore, it cannot warrant a ‘sex offense’ or denial of work

      release/minimum security housing.” Id. Strowmatt asserted that his “sex

      offender status must be removed.” Id.               On March 29, 2011, Strowmatt’s

      appeal was denied. The DOC noted that “‘[p]er central office, we are to submit

      all sex ofds to NCF IQ for [IN]SOMM.’” Id.


[7]   Strowmatt initiated this lawsuit in July 2012 in the Henry Circuit Court. In

      November 2012, he filed five separate pro se motions for declaratory and

      injunctive relief. The State filed a motion to strike, challenging the procedural

      manner in which Strowmatt asserted his claims. During this time, Strowmatt

      requested a change of judge, which resulted in the appointment of the

      Honorable Peter Haviza of Randolph Superior Court as Special Judge. Judge

      Haviza addressed the procedural irregularities by striking the motions filed by

      Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 5 of 19
      Strowmatt, but affording him ninety days to file a single complaint that

      complied with the Indiana Trial Rules. On January 10, 2014, Strowmatt filed a

      five-count, pro se complaint for declaratory and injunctive relief. Generally,

      Strowmatt challenged multiple aspects of the laws and policies governing post-

      conviction conduct of sex offenders claiming that they violate his due process

      rights to notice or violate Indiana’s prohibition against ex post facto laws.


[8]   On July 31, 2014, the State filed a motion for summary judgment. Strowmatt

      filed his own motion for summary judgment five days later. On September 3,

      2014, Strowmatt filed his response to the State’s motion for summary judgment.

      On September 15, the State filed a reply to Strowmatt’s response as well as its

      response to Strowmatt’s summary judgment motion. At a subsequent

      telephonic pre-trial conference, the trial court permitted Strowmatt to reply to

      the State’s response to his motion for summary judgment. The State offered no

      argument, but rather agreed to rely on its written submissions for purposes of

      summary judgment. On April 27, 2015, the trial court entered its order

      granting summary judgment in favor of the State on all of Strowmatt’s claims.

      Strowmatt timely filed his notice of appeal. Additional facts will be provided as

      necessary.


                                          Discussion & Decision


[9]   In 1994, our legislature enacted INSORA, which identifies certain crimes that

      trigger its application and requires persons convicted of those specified crimes

      to register as “sex offender[s].” Act of March 2, 1994, Pub.L. No. 11-1994, § 7


      Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 6 of 19
       (codified as Ind. Code §§ 5-2-12-1 through -13). When initially enacted, eight

       crimes triggered status as an “offender.” I.C. §§ 5-2-12-4, -5 (1994). Since its

       inception, INSORA has been amended numerous times, resulting in an

       expansion of the number of crimes triggering sex-offender status. See Lemmon v.

       Harris, 949 N.E.2d 803, 805-08 (Ind. 2011) (discussing amendments); Wallace v.

       State, 905 N.E.2d 371, 375-77 (Ind. 2009) (same). As is pertinent here, criminal

       confinement where the victim is less than eighteen years of age was added to

       INSORA as a triggering offense in 1998. See P.L. No. 56-1998, § 6, 1998 Ind.

       Acts 917, 923. Attempt was added in 2001. See P.L. No. 238-2001, § 4, 2001

       Ind. Acts 1901, 1905-06. In 2006, INSORA was moved from Title 5 to Title

       11. The recodification of INSORA at Ind. Code Ch. 11-8-8 also included

       amendments to certain provisions therein, but attempted criminal confinement

       of a child continued to be identified as a “sex offense”6 triggering application of

       INSORA.


[10]   On January 4, 2000, the DOC Commissioner, in keeping with the DOC’s goal

       of “maintaining public safety,” issued Executive Directive # 00-01, which

       concerned establishment of INSOMM.7 Appellees’ Appendix at 64. The goal of




       6
        I.C. § 11-8-8-5.2 defines “sex offense” as an offense listed in I.C. § 11-8-8-4.5(a). This is the same as it was
       under the previous version found at I.C. § 5-2-12-4(a)(12) and (13), which identified attempted criminal
       confinement as a “sex and violent offense[].” The circumstances of Strowmatt’s convictions for criminal
       confinement establish the required statutory elements for attempted criminal confinement delineated as a
       “sex offense,” (i.e., victim less than eighteen years of age).
       7
         The INSOMM program was designed as a three-phase continuum. Phase I of INSOMM is a consent and
       assessment phase conducted while the offender is incarcerated, usually upon arrival. In Phase II, targeted
       offenders undergo a management program based on their risk of recidivism, which includes group therapy
       sessions. Phase III begins once a targeted offender is released to parole, and it requires the offender to attend

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016                   Page 7 of 19
       INSOMM then and now is “to reduce the recidivism of offenders convicted of

       sex crimes” by providing “sex offender specific programs, risk assessment and

       intensive specialized parole supervision on a statewide basis.” Id.


[11]   In April 2004, when Strowmatt committed his most recent crimes, Ind. Code §

       35-50-6-5(a) provided that a prisoner could be deprived of any part of the credit

       time he had earned and demoted in credit class for violating one or more rules

       of the DOC, though a violation of a condition of parole could not form the

       basis of a deprivation. In 2006, the legislature added two provisions to I.C. §

       35-50-6-5(a), effective July 1, 2006, explicitly authorizing the deprivation of

       credit time if a sex offender refused to register as a sex offender before being

       released from prison or refused to participate in a sex offender treatment

       program offered by the DOC (i.e., INSOMM) while the offender was

       incarcerated. I.C. § 35-50-6-5(a)(5), (6).


[12]   On July 27, 2006, shortly after the effective date of the amendment to I.C. § 35-

       50-6-5, the DOC Commissioner issued Executive Directive # 06-30, which

       changed the eligibility requirements for INSOMM. This directive provided that

       “[r]ecent changes made by the Indiana General Assembly gives the Department

       of Correction the authority to mandate that offenders convicted of sex crimes

       participate in an approved treatment program for sex offenders.” Appellees’

       Appendix at 56. The directive further provided that “[a]ny offender with a




       and participate in sex offender treatment in the community and to take a polygraph examination at least
       every six months.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016             Page 8 of 19
       history of a sex offense conviction8 shall be advised that [INSOMM] is a

       mandatory program and that failure to participate in the program or failure to

       complete the program successfully shall result in a disciplinary action.” Id. In

       turn, a disciplinary action could result in a loss of earned credit time and/or

       demotion in credit class. As noted above, Strowmatt was advised that his

       current crimes as well as his past crimes qualified as sex offenses. On account

       of his status as a sex offender, the DOC classified Strowmatt as F5 and notified

       him that he was required to participate in INSOMM.


[13]   As an initial matter, we note that Strowmatt is proceeding pro se on appeal.

       Pro se litigants are held to the same standard as trained counsel and are

       required to follow procedural rules. Smith v. State, 38 N.E.3d 218, 220 (Ind. Ct.

       App. 2015). “This has consistently been the standard applied to pro se litigants,

       and the courts of this State have never held that a trial court is required to guide

       pro se litigants through the judicial system.” Id. We address Strowmatt’s

       arguments as best as we can discern them.


[14]   Our standard of review of summary judgment appeals is well established:


                When reviewing a grant of summary judgment, our standard of
                review is the same as that of the trial court. Considering only
                those facts that the parties designated to the trial court, we must
                determine whether there is a genuine issue as to any material fact
                and whether the moving party is entitled to judgment as a matter


       8
         The notification form for INSOMM participation that was given to eligible offenders provided that it
       applied to “all offenders who have been convicted of a sex offense, as defined by the Indiana Code.” Id. at
       58.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016              Page 9 of 19
               of law. In answering these questions, the reviewing court
               construes all factual inferences in the non-moving party’s favor
               and resolves all doubts as to the existence of a material issue
               against the moving party. The moving party bears the burden of
               making a prima facie showing that there are no genuine issues of
               material fact and that the movant is entitled to judgment as a
               matter of law; and once the movant satisfies the burden, the
               burden then shifts to the non-moving party to designate and
               produce evidence of facts showing the existence of a genuine
               issue of material fact. The party appealing a summary judgment
               decision has the burden of persuading this court that the grant or
               denial of summary judgment was erroneous.


       M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.

       denied (citations and internal quotations omitted).


[15]   “Where the facts are undisputed and the issue presented is a pure question of

       law, we review the matter de novo.” Id. Likewise, questions concerning the

       constitutionality of a statute are reviewed de novo. Zoeller v. Sweeney, 19 N.E.3d

       749, 751 (Ind. 2014). Here, the facts are undisputed. Strowmatt’s arguments

       present pure questions of law. Indeed, generously construed, Strowmatt argues

       that INSORA violates his due process rights and is unconstitutionally vague as

       applied to his conviction for attempted criminal confinement. He also argues

       that the 2006 amendment to I.C. § 35-50-6-5 violates the ex post facto clause.


                                                      Notice


[16]   Strowmatt first argues that the trial court erred in concluding that his due

       process rights were not violated because he was afforded sufficient notice that

       his conviction for attempted criminal confinement was identified as a “sex

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 10 of 19
       offense” under INSORA. Strowmatt maintains that Ind. Code § 35-34-1-

       2(a)(3)9 requires that the charging information allege that he violated INSORA.

       Without reference to INSORA in his charging information, Strowmatt asserts

       that he had no way of knowing that INSORA was triggered upon his

       conviction for attempted criminal confinement.


[17]   The purpose of a charging document is to give the defendant particular notice

       of the crimes with which he is charged during the applicable statute of

       limitations period so that he can prepare a defense. Bei Bei Shuai v. State, 966

       N.E.2d 619, 626 (Ind. Ct. App. 2012), trans. denied. Here, Strowmatt was

       charged with violating the criminal statutes proscribing attempted criminal

       confinement of a child, and the charging information referenced the statutory

       provisions relating thereto. Strowmatt was not charged with violating

       INSORA. Other than his bare assertion, Strowmatt does not cite any authority

       to support a determination that the State was also required to allege that a

       conviction for attempted criminal confinement would trigger application of

       INSORA.


[18]   In any event, we note that as pertinent to Strowmatt’s claim, the provisions of

       INSORA were triggered by the fact of his conviction for attempted criminal

       confinement; they were not the basis for the conviction. A reference to




       9
         I.C. § 35-34-1-2 sets forth the requirements for an indictment or information. Strowmatt’s argument is
       based upon the language of I.C. § 35-34-1-2(a)(3), which provides that an indictment or information “shall be
       in writing and allege the commission of an offense by . . . citing the statutory provision alleged to have been
       violated.”

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016              Page 11 of 19
       INSORA would need to be made only if an offender were charged with

       violating an INSORA requirement such as the registration requirement. 10


[19]   Moreover, as the trial court accurately determined, at the time Strowmatt

       committed his most recent offense, INSORA plainly set out that an individual

       who committed the crime of attempted criminal confinement and the victim

       was less than eighteen years of age was an “offender” for purposes of INSORA.

       I.C. § 5-2-12-4(a)(12), (13) (Supp. 2013). Strowmatt’s contention that he should

       not be required to know the law because he is not a lawyer ignores long-settled

       jurisprudence in Indiana that “every man is presumed to know the laws of the

       country in which he dwells.” Marmont v. State, 48 Ind. 21, 31 (1874).

       Ignorance of the law is no defense. Dewald v. State, 898 N.E.2d 488, 493 (Ind.

       Ct. App. 2008) (citing Marmont, 48 Ind. at 31) (“ignorance of the law excuses

       no man”); compare Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004)

       (noting that pro se litigants are held to the same standards as trained counsel),

       trans. denied. For these same reasons, we also reject his argument that he had

       no notice that a conviction for attempted criminal confinement of a child is a

       sex offense even though the offense does not require proof of a sex act. We find

       no error in the trial court’s conclusion that Strowmatt had adequate notice that

       his conviction for attempted criminal confinement qualified him as an offender

       for purposes of INSORA.




       10
         An offender who fails to register under INSORA commits a Level 6 or a Level 5 felony. See, e.g., I.C. § 11-
       8-8-17.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016            Page 12 of 19
                                                    Vagueness


[20]   Strowmatt also argues that INSORA is void for vagueness as applied to him.

       His argument is based on his belief that attempted criminal confinement cannot

       be a sex offense without a showing that there was a specific intent to commit a

       sexual act. Strowmatt directs us to Brown v. State, 868 N.E.2d 464 (Ind. 2007),

       in which our Supreme Court held that a portion of the criminal confinement

       statute was unconstitutionally vague because the terms “fraud” and

       “enticement” failed to give adequate notice as to what conduct was proscribed

       and also encouraged arbitrary enforcement. Strowmatt’s reliance on Brown is

       misplaced as he was not convicted under the part of the statute held to be

       unconstitutionally vague.


[21]   In any event, we note that due process requires that a penal statute define the

       criminal offense with sufficient definiteness that ordinary people can

       understand what conduct is prohibited and in a manner that does not encourage

       arbitrary and discriminatory enforcement. Brown, 868 N.E.2d at 467. We find

       nothing vague or arbitrary about INSORA when Strowmatt committed his

       crimes in April 2004. The legislature chose to classify attempted criminal

       confinement of a child as a sex offense triggering application of INSORA.

       INSORA unambiguously required such offenders to register under INSORA,

       and registration for life was required if the offender was over eighteen years of

       age and the victim was under twelve years of age. See I.C. § 5-2-12-4(a)(12),

       (13), -5(a), (b), -(13)(c) (Supp. 2003).



       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 13 of 19
                                                  Ex post facto


[22]   Strowmatt challenges the 2006 amendment to I.C. § 35-50-6-5 as being in

       violation of ex post facto prohibitions of both the Indiana and federal

       Constitutions. When a statute is challenged as an alleged violation of the

       Indiana Constitution, our standard of review is well settled. Every statute

       stands before us clothed with the presumption of constitutionality until that

       presumption is clearly overcome by a contrary showing. State v. Rendleman, 603

       N.E.2d 1333, 1334 (Ind. 1992). The party challenging the constitutionality of

       the statute bears the burden of proof, and all doubts are resolved against that

       party. Id.


[23]   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 provides

       that “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art. I, § 24.

       An ex post facto law applies retroactively to disadvantage an offender’s

       substantial rights. Weaver v. Graham, 450 U.S. 24, 29 (1981); Collins v. State, 911

       N.E.2d 700, 712 (Ind. Ct. App. 2009), trans. denied. In other words, an ex post

       facto law increases the penalty by which a crime is punishable or alters the

       definition of criminal conduct. Cal. Dep’t of Corr. V. Morales, 514 U.S. 499, 506

       n.3 (1995); Collins, 911 N.E.2d at 712.


[24]   In analyzing an ex post facto claim, the United States Supreme Court applies

       the intent-effects test. Smith v. Doe, 538 U.S. 84, 105-06 (2003). The first step is

       to determine if the legislature meant the statute to establish civil proceedings.


       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 14 of 19
Id. at 92. If the legislature intended to impose punishment, the inquiry ends

because punishment results. Id. If, however, the court concludes that the

legislature intended a non-punitive regulatory scheme, then the court must

further examine whether the statutory scheme is so punitive in effect as to

negate that intention thereby transforming what had been intended as a civil

regulatory scheme into a criminal penalty. Id. In assessing a statute’s effects,

courts should consider seven factors listed in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69 (1963). The seven factors are:


        “[1] Whether the sanction involves an affirmative disability or
        restraint, [2] whether it has historically been regarded as a
        punishment, [3] whether it comes into play only on a finding of
        scienter, [4] whether its operation will promote the traditional
        aims of punishment-retribution and deterrence, [5] whether the
        behavior to which it applies is already a crime, [6] whether an
        alternative purpose to which it may rationally be connected is
        assignable for it, and [7] whether it appears excessive in relation
        to the alternative purpose assigned.”


Wallace, 905 N.E.2d at 379 (quoting Mendoza-Martinez, 372 U.S. at 168-69).

Our Supreme Court has held that the intent-effects test provides the appropriate

analytical framework for analyzing ex post facto claims under the Indiana

Constitution. Wallace, 905 N.E.2d at 378.




Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 15 of 19
[25]   We begin by noting that Indiana’s credit time assignments11 and the grounds for

       reduction or deprivation are established by statute. Strowmatt challenges I.C. §

       35-50-6-5, which provides, in pertinent part, as follows:


                  (a) A person may, with respect to the same transaction, be
                  deprived of any part of the educational credit or good time credit
                  the person has earned for any of the following:


                                                             ***


                           (5) If the person is a sex or violent offender (as defined in
                           IC 11-8-8-4.5) and refuses to register before being released
                           from the department as required under IC 11-8-8-7.


                           (6) If the person is a sex offender (as defined in IC 11-8-8-
                           4.5) and refuses to participate in a sex offender treatment
                           program specifically offered to the sex offender by the
                           department of correction while the person is serving a
                           period of incarceration with the department of correction.


       Strowmatt’s specific challenge is that the 2006 statutory amendment adding

       (a)(5) and (6) went into effect two years after his conviction, and thus, he

       cannot be required to participate in the INSOMM program such that his refusal

       to do so results in him being deprived of earned credit time. The basis for

       Strowmatt’s claim is that deprivation of credit time constitutes a punishment.




       11
            Good time credits and classifications are not constitutionally required. See Bleeke, 6 N.E.3d at 933.


       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016                  Page 16 of 19
[26]   As our Supreme Court has noted,


               when the purpose of [INSOMM] is to reduce the recidivism rate
               of sex offenders who are released back into society, providing
               prison officials with the option (subject to due process
               protections) of reducing or revoking credit time for convicted
               offenders who refuse to fully participate in the program while
               incarcerated—and thus not returning them back into society as
               quickly because they are not rehabilitated—is “a sensible
               approach to reducing the serious danger that repeat sex offenders
               pose to many innocent persons, most often children.”


       Bleeke v. Lemmon, 6 N.E.3d 907, 933-34 (Ind. 2014) (quoting McKune v. Lile, 536

       U.S. 24, 48 (2002)). Our Supreme Court further noted, albeit in a slightly

       different context, but equally applicable here, that the State is permitted to

       present all INSOMM inmates “with a constitutionally permissible choice:

       participate in the [IN]SOMM program and maintain a more favorable credit

       status and/or privileges within the prison system or a favorable assignment in a

       community transition program, or refuse to participate and instead serve out the

       full term for which he had been lawfully convicted.” Id. at 934.


[27]   Deprivation of credit time is the consequence of failure to comply with a

       requirement of prison life; it is not a punishment for the crime that landed the

       person in prison. Thus, contrary to Strowmatt’s claim on appeal, removal or

       reduction of a sex offender’s earned credit time or credit classification does not

       extend an offender’s period of incarceration beyond that of his or her original

       sentence; rather, it merely reduces the availability of an early release date.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 17 of 19
[28]   We also observe that the challenged statutory provisions do not mandate that a

       sex offender be deprived of earned credit time. It is by DOC rule, which was

       implemented after the amendment to I.C. § 35-50-6-5 and two years after

       Strowmatt committed his most recent crimes, that sex offenders are required to

       participate in INSOMM. The DOC rule mandates that a sex offender’s refusal

       to participate in the program will result in discipline, which can take the form of

       deprivation of good time credit or a demotion in credit class. Discipline is

       designed to implement the prison’s administrative rules. A sex offender can

       avoid discipline by fully participating in INSOMM. The DOC is implementing

       its rule by offering a constitutionally permissible choice to a lawfully convicted

       offender: comply with DOC rules or serve out the full sentence received as a

       result of your lawful conviction.


[29]   It is clear that in amending I.C. § 35-50-6-5, the legislature did not intend to

       impose punishment. The purpose of the statute is to encourage sex offenders to

       participate in INSOMM. In considering the seven factors for assessing the

       statute’s effect, it is evident that the sanction does not impose a restraint greater

       than that which was proscribed for the underlying conviction, mandatory

       participation in INSOMM is not punishment, there is no requirement for a

       finding of scienter, the behavior to which the statute applies (i.e., refusal to

       attend INSOMM) is not a crime, it advances a non-punitive interest in that it

       seeks to encourage sex offenders to participate in a program designed to

       rehabilitate and help reintegrate them back into society, and it clearly is not

       excessive. In short, the effect of the DOC rule, which is based on I.C. § 35-50-


       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 18 of 19
       6-5, is not punitive. We therefore conclude that the 2006 amendments to I.C. §

       35-50-6-5 do not violate the ex post facto clause.


[30]   In summary, Strowmatt was afforded adequate notice that his convictions for

       attempted criminal confinement of a child triggered application of INSORA

       and that his conviction was deemed a sex offense thereunder. Also, the 2006

       amendment to I.C. § 35-50-6-5 is not an unconstitutional ex post facto law.


[31]   Judgment affirmed.


[32]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1505-MI-498 | June 15, 2016   Page 19 of 19
