MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Aug 21 2015, 9:00 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         David A. Arthur
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Pollard,                                           August 21, 2015
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1411-MI-805
        v.                                               Appeal from the Marion Superior
                                                         Court
Michael Pence, as Governor of                            The Honorable Patrick L.
the State of Indiana, Bruce                              McCarty, Judge
Lemmon, as the Commissioner                              Trial Court Cause No.
of the Indiana Department of                             49D03-1403-MI-9641
Correction, and the Indiana
Parole Board and current
members thereof,
Appellees-Plaintiffs




Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 1 of 7
[1]   In State v. Hernandez, our Supreme Court examined the law as it existed in 1975

      and held that individuals serving life sentences for crimes committed at this

      time are not eligible for parole. 910 N.E.2d 213 (Ind. 2009). James Pollard,

      who is currently serving four life sentences for crimes he committed in 1975,

      believes this decision was erroneous. Accordingly, Pollard filed a petition for

      writ of mandamus in the trial court asking it to order the respondents, Governor

      Pence, Commissioner Lemmon, and the Indiana Parole Board, to consider him

      eligible for parole. The trial court denied the petition, and we are compelled to

      affirm.


                                                            Facts
[2]   On February 14, 1977, Pollard was sentenced to four concurrent terms of life

      imprisonment following convictions for premeditated murder, second degree

      murder, and two counts of kidnapping. Pollard committed these crimes on the

      evening of November 25, 1975. His convictions were affirmed on appeal in

      Pollard v. State, 270 Ind. 599, 388 N.E.2d 496 (Ind. 1979).1


[3]   On March 26, 2014, Pollard filed a petition for writ of mandamus in the trial

      court asking it to order “the Indiana Department of Correction to immediately

      consider him eligible” for parole. Appellant’s App. p. 11. Pollard

      acknowledged that, under our Supreme Court’s decision in Hernandez, he was

      not eligible for parole. However, he argued that Hernandez was erroneously




      1
          See this case for a detailed account of the facts underlying Pollard’s convictions.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015     Page 2 of 7
      decided and, consequently, constituted judicial legislation in violation of Article

      III of the Indiana Constitution—relating to separation of powers—as well as the

      ex post facto clauses of both the Indiana and the United States Constitutions.

      The respondents filed a motion to dismiss under Indiana Trial Rule 12(b)(6),

      arguing that no constitutional violation had occurred because Pollard had “not

      been deprived of parole eligibility that he previously possessed.” Id. at 19.


[4]   The trial court agreed with the respondents and dismissed Pollard’s petition. It

      found that “[t]here was no legislating by the Supreme Court” in Hernandez

      because “the Court was not creating law but saying what the law was in 1975.”

      Id. at 6. Accordingly, it found no violation of any constitutional provisions

      regarding the separation of powers or ex post facto laws. Pollard filed a motion

      to correct error, which the trial court dismissed on October 20, 2014. Pollard

      now appeals.


                                   Discussion and Decision
[5]   “A motion to dismiss for failure to state a claim tests the legal sufficiency of the

      claim, not the facts supporting it.” Charter One Mortg. Corp. v. Condra, 865

      N.E.2d 602, 604 (Ind. Ct. App. 2007). Accordingly, we review trial courts’

      decisions on Rule 12(b)(6) motions de novo. Id. “A complaint may not be

      dismissed for failure to state a claim upon which relief can be granted unless it

      is clear on the face of the complaint that the complaining party is not entitled to

      relief.” Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 3 of 7
[6]   Here, Pollard commenced an action for mandate. “An action for mandate may

      be prosecuted against any inferior tribunal, corporation, public or corporate

      officer, or person to compel the performance of any: (1) act that the law

      specifically requires; or (2) duty resulting from any office, trust, or station.”

      Ind. Code § 34-27-3-1. An action for mandate will succeed only when the

      petitioner has a clear and unquestionable right to relief and the respondent has

      failed to perform a clear, absolute, and imperative duty imposed by law. State

      ex rel. Steinke v. Coriden, 831 N.E.2d 751, 757 (Ind. Ct. App. 2005). Here,

      Pollard argues that, by failing to consider him eligible for parole, the

      respondents are acting pursuant to an erroneous decision of our Supreme Court

      that, by virtue of being erroneous, functions as an unconstitutional legislative

      action. Consequently, Pollard believes that in following such a decision, the

      respondents are actually acting contrary to law.


[7]   The decision to which Pollard directs our attention is State v. Hernandez, 910

      N.E.2d 213 (Ind. 2009). In that case, Hernandez, much like Pollard, had been

      sentenced to multiple terms of life imprisonment for crimes he had committed

      in 1975. Id. Under our current parole eligibility statute, which became effective

      in 1980, Hernandez, as well as Pollard, would clearly not be eligible for parole.

      The statute provides:


              A person sentenced upon conviction of more than one (1) felony
              to more than one (1) term of life imprisonment is not eligible for
              consideration for release on parole under this section.


      Ind. Code § 11-13-3-2.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 4 of 7
[8]    However, the statute that had been in effect in 1975 read quite differently. That

       statute provided:


               The Indiana parole board is hereby authorized to release on
               parole, pursuant to the laws of the state of Indiana, any person
               confined in any penal or correctional institution in this state
               except persons under sentence of death.


       Ind. Code § 11-1-1-9 (1971). Though the plain and unambiguous meaning of

       this language seemed to be in Hernandez’s favor, in light of other statutory

       provisions governing parole in existence at the time, our Supreme Court held

       that those sentenced to life imprisonment when this statute was in effect could

       not be considered eligible for parole. Hernandez, 910 N.E.2d at 217-21.


[9]    While Pollard disagrees with this conclusion, this Court is simply not

       positioned to review the propriety of a decision by our Supreme Court. As the

       respondents correctly point out, we are bound by such decisions until they are

       changed by legislative enactment or by the Supreme Court itself. T.H. v. R.J.,

       23 N.E.3d 776, 787 (Ind. Ct. App. 2014), trans. denied.


[10]   As for Pollard’s argument that the decision in Hernandez violated constitutional

       prohibitions on ex post facto laws and constituted judicial legislation, we agree

       with the trial court. “An ex post facto law is one which applies retroactively to

       disadvantage an offender’s substantial rights.” Armstrong v. State, 848 N.E.2d

       1088, 1092 (Ind. 2006). Underlying this prohibition is “‘the notion that persons

       have a right to fair warning of that conduct which will give rise to criminal



       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 5 of 7
       penalties.’” Id. at 1093 (quoting Marks v. United States, 430 U.S. 188, 191

       (1977)).


[11]   In Hernandez, our Supreme Court determined that, under the law as it existed in

       1975, those serving life sentences were not eligible for parole. Hernandez, 910

       N.E.2d at 221. Thus, the Court, in its estimation, had simply determined what

       the law had always been. Pollard therefore suffered no disadvantage, as the law

       had never given him the advantage he claims. The same analysis can be

       applied to Pollard’s claim that the decision in Hernandez constitutes judicial

       legislation. The Court was not creating anything new and, therefore, did not

       “legislate.” See Black’s Law Dictionary (10th ed. 2014) (defining “legislate” as

       “[t]o make or enact law”; “[t]o bring (something) into or out of existence by

       making laws.”).


[12]   Respondents argue that we need not have considered Pollard’s arguments at all

       because the constitutional prohibition on ex post facto laws is a prohibition

       placed on the legislature alone and “‘does not of its own force apply to the

       Judicial Branch of government.’” Armstrong, 848 N.E.2d at 1093 (quoting

       Marks, 430 U.S. at 191). We agree, however, this is not to say that individuals

       are provided no constitutional protection from judicial interpretations that

       effectively function as ex post facto laws. “[T]he Due Process Clause of the

       Fifth Amendment, made applicable to the states by the Fourteenth

       Amendment, protects offenders from judicial decisions that retroactively alter

       the import of a law to negatively affect the offender’s rights without providing

       fair warning of that alteration.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 6 of 7
[13]   However, we are not at liberty to conclude that such is the case here. Not only

       are we bound by our Supreme Court’s holding as to the meaning of the

       previous parole eligibility statute, we are also bound by its implicit holding that

       this is what the statute has always meant. Thus, we are compelled by Hernandez

       to conclude that Pollard’s claims must fail.


[14]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-805 | August 21, 2015   Page 7 of 7
