      MEMORANDUM DECISION
                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D), this                            Dec 21 2017, 8:33 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                          CLERK
                                                                              Indiana Supreme Court
      purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                                   and Tax Court
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Charles M. Cormack                                       Curtis T. Hill, Jr.
      New Castle, Indiana                                      Attorney General of Indiana
                                                               Kyle Hunter
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Charles M. Cormack,                                      December 21, 2017

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               33A01-1705-MI-1051
              v.                                               Appeal from the Henry Circuit
                                                               Court.
                                                               The Honorable Kit C. Dean Crane,
      Keith Butts,                                             Judge.
      Appellee-Respondent.                                     Trial Court Cause No.
                                                               33C02-1702-MI-15




      Shepard, Senior Judge

[1]   Appellant Charles Cormack, now on parole from child molesting and sexual

      misconduct, sought relief from various conditions typically imposed on sexual

      offender parolees, like a prohibition on contacting his victim, claiming they

      violate ex post facto. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017        Page 1 of 6
                                   Facts and Procedural History
[2]   On July 29, 2002, Cormack was sentenced to thirty-six years with eight years
                                                                                     1
      suspended for one count of child molesting, a Class C felony , and two counts
                                                                                              2
      of sexual misconduct with a minor, one B felony and one C felony.


[3]   According to Cormack, he was released to parole and probation on August 1,

      2013. He was subsequently arrested for a parole violation. Upon finding that

      Cormack had committed a violation, the parole board revoked his parole and

      imposed the balance of his sentence in March 2016.


[4]   In February 2017, Cormack filed a petition for writ of habeas corpus claiming

      ex post facto violations and requesting immediate release from prison. The
               3
      State responded with a motion to dismiss under Trial Rule 12(B)(6). The trial

      court gave Cormack ten days to object, stating that his failure to object might

      result in the granting of the motion without a hearing. Although beyond the

      ten-day period, Cormack filed his objection. The trial court nevertheless

      dismissed Cormack’s ex post facto claim and denied his release from

      imprisonment claim on April 26, 2017. He now appeals.




      1
          Ind. Code § 35-42-4-3 (1998).
      2
          Ind. Code § 35-42-4-9 (1998).
      3
        Although Cormack named Keith Butts, the Warden of the New Castle Correctional Facility, as the sole
      respondent in this action, we will refer to the appellee as “the State.”

      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017      Page 2 of 6
                                                    Issues
[5]   Cormack presents two issues for our review, which we restate as:


              I. Whether conditions of Cormack’s parole constitute prohibited
              ex post facto laws.
              II. Whether Cormack is entitled to immediate release from
              prison.

                                   Discussion and Decision
                                            I. Ex Post Facto
[6]   Our review of a dismissal pursuant to Trial Rule 12(B)(6) is de novo. Weiss v.

      Ind. Parole Bd., 838 N.E.2d 1048 (Ind. Ct. App. 2005), trans. denied. Viewing the

      petition in the light most favorable to the non-moving party, we must determine

      whether it states any facts upon which the trial court could have granted relief.

      Id. If the petition sets forth facts which, even if true, would not support the

      relief requested, we will affirm the dismissal. Id.


[7]   Cormack claims that the parole requirement that he participate in the Sex

      Offender Management and Monitoring (SOMM) program violates the

      constitutional prohibitions of ex post facto laws.


[8]   Both the federal and state constitutions prohibit ex post facto laws. U.S.

      CONST. art. I, § 10; IND. CONST. art. I, § 24. An ex post facto law imposes a

      punishment for an act that was not punishable at the time it was committed or

      imposes additional punishment to that then prescribed. Ramon v. State, 888

      N.E.2d 244 (Ind. Ct. App. 2008). The focus of the ex post facto inquiry is not


      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017   Page 3 of 6
       on whether the change causes a disadvantage; rather, we must determine

       whether the change increases the penalty by which a crime is punishable or

       alters the definition of criminal conduct. Id. Analysis of alleged violations is

       the same under both constitutional provisions. Upton v. State, 904 N.E.2d 700

       (Ind. Ct. App. 2009), trans. denied.


[9]    The practice of releasing prisoners on parole has become an integral part of our

       penological system—not as an ad hoc exercise of clemency but as an

       established variation on imprisonment. Harris v. State, 836 N.E.2d 267 (Ind. Ct.

       App. 2005), trans. denied. The primary purpose of parole is to help offenders

       reintegrate into society as constructive individuals without being confined for

       the full term of their sentence. Id. To accomplish this goal, offenders placed on

       parole are subjected to specific conditions that restrict their activities

       substantially beyond ordinary restrictions imposed by law on individual

       citizens. Id.


[10]   The parole board has the power to determine whether prisoners should be

       released on parole and, if so, under what conditions. Ind. Code §§ 11-13-3-3, -4

       (2012); Harris, 836 N.E.2d 267. A prisoner is released on parole only upon his

       agreement to these conditions, and the parole agreement is a contract between

       the prisoner and the State by which the parolee is bound. Harris, 836 N.E.2d

       267. The board may also impose additional conditions beyond the standard

       conditions as long as they are reasonably related to the parolee’s successful

       reintegration into the community and not unduly restrictive of a fundamental

       right. Ind. Code § 11-13-3-4(b).

       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017   Page 4 of 6
[11]   Here, the additional parole condition for Cormack is his participation in the

       SOMM program. This very question was addressed in Patrick v. Butts, 12

       N.E.3d 270 (Ind. Ct. App. 2014). The Patrick panel explained:


               The Parole Board is allowed to impose conditions that are
               “reasonably related to the parolee’s successful reintegration into
               the community,” Ind. Code § 11–13–3–4(b), and that subsection
               was in place when Patrick was convicted [in 1991]. Our
               Supreme Court has found that the SOMM program “is a
               valuable tool aimed at the legitimate purpose of rehabilitating sex
               offenders before they are fully released from State control.”
               Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014). As the Parole
               Board’s authority to impose conditions on parole is not limited
               by the date on which the program was created, but rather is
               limited by the program’s ability to help reintegrate the parolee
               into society, the order that Patrick participate in SOMM does not
               violate the ex post facto clause.
       Id. at 271-72. We find this reasoning to be true in this case as well.


                                     II. Habeas Corpus Claim
[12]   Cormack argues that his due process rights were violated because he was not

       advised of the full consequences of his plea agreement, specifically his ten-year

       mandatory parole.


[13]   The purpose of a writ of habeas corpus is to determine the lawfulness of the

       defendant’s detention and may not be used to determine collateral matters not

       affecting the custody process. Hardley v. State, 893 N.E.2d 740 (Ind. Ct. App.

       2008). A defendant is entitled to a writ of habeas corpus if he is unlawfully




       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017   Page 5 of 6
       incarcerated and entitled to immediate release. Randolph v. Buss, 956 N.E.2d 38

       (Ind. Ct. App. 2011), trans. denied.


[14]   We review the trial court’s decision on a habeas petition for an abuse of

       discretion. Id. We do not reweigh the evidence, and we consider only the

       evidence most favorable to the judgment and any reasonable inferences drawn

       therefrom. Id.


[15]   At the time relevant in this case, Indiana Code section 35-50-6-1(d) provided:

       “When an offender (as defined in IC 5-2-12-4) completes the offender’s fixed

       term of imprisonment, less credit time earned with respect to that term, the

       offender shall be placed on parole for not more than ten (10) years.” Our

       Supreme Court has held that a court is “not required to advise the defendant of

       the parole consequences of his plea. The parole impact of a plea is neither a

       constitutional right nor an advisement required by statute.” Fulmer v. State, 519

       N.E.2d 1236, 1238 (Ind. 1988). Even if Cormack was not informed at his

       sentencing that he would be placed on parole, he is not entitled to habeas relief

       on such a claim.


                                                Conclusion
[16]   For the reasons stated, we conclude the trial court did not err in dismissing

       Cormack’s ex post facto claim and denying his habeas claim.


[17]   Affirmed.


       Barnes, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-MI-1051 | December 21, 2017   Page 6 of 6
