                                                                Jul 25 2013, 6:15 am




FOR PUBLICATION


APPELLANT PRO SE:                             ATTORNEYS FOR APPELLEE:

JASON E. MORALES                              GREGORY F. ZOELLER
Carlisle, Indiana                             Attorney General of Indiana

                                              ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

JASON E. MORALES,                             )
                                              )
     Appellant-Petitioner,                    )
                                              )
            vs.                               )      No. 82A05-1302-CR-72
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Respondent.                     )


              APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                      The Honorable Kelli E. Fink, Magistrate
                          Cause No. 82C01-0902-FB-150



                                    July 25, 2013

                             OPINION – FOR PUBLICATION

BAKER, Judge
        After the trial court denied appellant-petitioner Jason E. Morales’s motion for

placement into the Vanderburgh County Forensic Diversion Program (the Program) 1 on

the basis that the Program would not accept any sex offenders, Morales filed a petition

for judicial review of the Program’s acceptance criteria. Morales argued that because

Indiana Code section 11-12-3.7-12 already provides that persons convicted of certain

offenses deemed violent are excluded from placement into post-conviction forensic

diversion programs, and not all sex offenses are included in that list, the Program

exceeded its statutory authority by establishing acceptance criteria that were more

exclusive than those in the statute.

        Morales now appeals from the trial court’s denial of his petition, raising the same

challenge to the Program’s authority to exclude all sex offenders. We conclude that the

trial court’s denial of Morales’s petition was not an abuse of discretion because there was

no final administrative decision for the trial court to review and that, even if the Program

had explicitly rejected Morales, its decision would not have been arbitrary or capricious

because Morales was ineligible under the statute. Finally, even assuming solely for

argument’s sake that Morales had been eligible under the statute, Indiana counties have

the ability to determine the scope of their forensic diversion programs. Thus, we affirm

the judgment of the trial court.


1
 A forensic diversion program is “a program designed to provide an adult: (1) who has a mental illness,
an addictive disorder, or both a mental illness and an addictive disorder; and (2) who has been charged
with a crime that is not a violent offense; an opportunity to receive community treatment and other
services addressing mental health and addiction instead of in addition to incarceration.” Ind. Code § 11-
12-3.7-4.
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                                           FACTS

         On April 27, 2010, after being convicted of three separate counts of class B felony

sexual misconduct of a minor, Morales was sentenced to concurrent sentences of eighteen

years on each conviction. Morales’s convictions were affirmed on direct appeal to this

Court. Morales v. State, No. 82A04-1005-CR-311, memo op. at 7 (Ind. Ct. App. Apr. 20,

2011).

         On February 15, 2012, Morales filed a motion in the trial court for placement in

Vanderburgh County’s post-conviction forensic diversion program. The motion also

asked the trial court to determine whether Morales was “an appropriate candidate for

placement in such a program.” Appellant’s App. p. 39. On March 8, 2012, the State

filed an objection to “any modification of the Defendant’s sentence due to the criminal

history regarding siad [sic] defendant.” Id. at 73. That same day, the trial court denied

Morales’s motion.      On July 31, 2012, the trial court denied Morales’s motion for

reconsideration.    The chronological case summary (CCS) entry on that date states:

“PROBATION DEPARTMENT HAS CHECKED WITH FORENSIC DIVERSION

PROGRAM AND HAS BEEN ADVISED THAT THE PROGRAM WILL NOT

ACCEPT DEFT. BECAUSE THIS IS A SEX OFFENSE.                        THEREFORE, DEFT’S

MOTION FOR RECONSIDERATION OF PCFD MOTION IS DENIED.” Id. at 10.

         In August 2012, Morales requested copies of the Program’s rules and procedures

from the trial court. However, the trial court denied this request because the Program is



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not a part of the court system. The trial court subsequently denied Morales’s request to

order the Program to provide Morales with copies of these same documents.

        On January 18, 2013, Morales filed a “Verified Petition for Judicial Review of

Administrative Decision Violative of Indiana Code.” Appellant’s App. p. 83-92. The

trial court denied Morales’s petition for judicial review on February 6, 2013,2 and

Morales now appeals.

                                  DISCUSSION AND DECISION

        Morales contends on appeal, as he did in the trial court, that “[t]he Vanderburgh

County Forensic Diversion Program and its advisory board exceeded their statutory

authority in establishing a criteria for offender placement in the post-conviction forensic

diversion program by banning all offenders convicted of a sex offense.” Appellant’s Br.

p. 1. More particularly, Morales argues that the criteria banning all sex offenders from

participation in the Program “is contrary to the statutorily established criteria under

Indiana Code § 11-12-3.7-12, which allows certain non-violent sex offenses to be

considered for placement in a post-conviction forensic diversion program.” Id.

        At the outset, we consider the State’s argument that Morales’s appeal should be

dismissed because Morales failed to timely appeal the trial court’s denials of his request

for consideration for placement in the Program or his motion to reconsider that decision.

We note that Morales “cannot avoid application of [the requirement of a timely appeal]

by recasting his complaint as a petition for judicial review.” Burke v. Bd. of Dirs. of the
2
 Although the trial court’s orders discussed above are reflected in the CCS, it is unclear whether the trial
court actually issued written orders.
                                                     4
Monroe Cnty. Pub. Library, 711 N.E.2d 1288, 1289 (Ind. Ct. App. 1999). However, to

the extent that Morales intended his petition for judicial review to be a separate matter,

we decline to dismiss his appeal. That said, we nevertheless find Morales’s contentions

to be without merit.

       First, we agree with the State that Morales’s petition for judicial review was

improper because Morales never applied for acceptance into the Program and was thus

never rejected from consideration by the Program. Accordingly, there was no final

administrative action for the trial court to review. Although the State contends that

Morales’s petition for judicial review was erroneous because it failed to comply with the

procedural requirements of the Indiana Administrative Orders and Procedures Act

(AOPA), and Morales contends that the actions of the Program—as a county agency—

are not governed by AOPA, we need not decide whether the Program is excluded from

AOPA’s procedural requirements. Rather, even assuming that AOPA does not apply, a

trial court would still apply “general administrative law principles” to a petition for

judicial review. Bd. of Comm’rs in Cnty. of Allen v. Ne. Ind. Bldg. Trades Council, 954

N.E.2d 937, 944 (Ind. Ct. App. 2011), trans. denied. And one of the most fundamental

constructs of administrative law is that judicial review cannot occur until there has been a

“final administrative action” to review. Id. Here, there was not.

       Moreover, even if the Program had considered Morales for placement into the

Program and rejected him because its acceptance criteria excludes all sex offenders, not



                                             5
just violent ones, we would not consider that to be an arbitrary and capricious decision.

Indiana Code section 11-12-3.7-12(a) provides:

       A person is eligible to participate in a post-conviction forensic diversion
       program only if the person meets the following criteria:

       (1) The person has a mental illness, an addictive disorder, or both a mental
       illness and an addictive disorder.

       (2) The person has been convicted of an offense that is:

              (A) not a violent offense; and

              (B) not a drug dealing offense.

       (3) The person does not have a conviction for a violent offense in the
       previous ten (10) years.

       (4) The court has determined that the person is an appropriate candidate to
       participate in a post-conviction forensic diversion program.

       (5) The person has been accepted into a post-conviction diversion program.

       Although Indiana Code section 11-12-3.7-7 requires all Indiana counties to

develop a forensic diversion plan, there is no corresponding requirement to implement a

forensic diversion program. In fact, the statute specifically states that “[d]evelopment of

a forensic diversion plan . . . does not require implementation of a forensic diversion

program.” Ind. Code § 11-12-3.7-7(d). Thus, it is apparent to us that if a county decides

to implement a forensic diversion program, that county also has the discretion to decide

its program’s scope. See Lomont v. State, 852 N.E.2d 1002, 1007 (Ind. Ct. App. 2006)

(noting that “the forensic diversion program enabling statute does not create a program to



                                               6
which all citizens have a right of access” and that it “merely prescribes the minimal

requirements for the program should a county choose to establish one”).

       Finally, we note that Morales, as a person convicted of a violent offense as defined

by Indiana Code section 11-12-3.7-6, was not eligible to participate in the Program

notwithstanding the Program’s limited acceptance criteria. According to this statute, a

violent offense includes class B felony sexual misconduct with a minor, of which

Morales was convicted of three counts and for which he was serving an eighteen-year

sentence. I.C. § 11-12-3.7-6(10). Despite Morales’s arguments to the contrary, neither

the trial court nor we are at liberty to disregard the statute’s clear language and determine

that class B felony sexual misconduct as a minor, inasmuch as it is enhanced merely upon

the age of the offender, is not a violent offense. See Grody v. State, 257 Ind. 651, 659-

60, 278 N.E.2d 280, 285 (1972) (holding that “[i]t is not within the province of [the

courts] to expand or contract the meaning of a statute by reading into it language which

will . . . correct any supposed omissions or defects therein”).

       For all these reasons, we conclude that the trial court did not err when it denied

Morales’s petition for judicial review.

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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