MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Mar 27 2015, 9:38 am
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 APPELLEE
Steve Delp                                               Gregory F. Zoeller
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Steve Delp,                                              March 27, 2015

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         49A02-1405-PC-358
        v.                                               Appeal from the Marion Superior
                                                         Court.
State of Indiana,                                        The Honorable James B. Osborn,
                                                         Judge.
Appellee-Respondent.
                                                         Cause No. 49G02-0706-PC-102562




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion | 49A02-1405-PC-358 | March 27, 2015     Page 1 of 10
                                     STATEMENT OF THE CASE

[1]   Appellant-Defendant, Steve Delp (Delp), appeals the trial court’s denial of

      additional credit time.


[2]   We affirm.

                                                    ISSUES

[3]   On appeal, Delp presents five issues, two of which we find dispositive and

      restate as:

      (1) Whether the trial court lacked jurisdiction to determine Delp’s petition for

      the award of additional credit time; and

      (2) Whether Indiana code section 35-50-6-3.3 violates the ex post facto clause of

      the Indiana and United States Constitutions.

                             FACTS AND PROCEDURAL HISTORY

[4]   On June 6, 2007, the State filed an Information charging Delp with one Count

      of child molesting, as a Class A felony, and one Count of child molesting, as a

      Class C felony. On February 5, 2008, the jury found Delp guilty as charged,

      and on February 13, 2008, the trial court sentenced Delp to concurrent

      sentences of thirty years for the Class A felony conviction and four years for the

      Class C felony, fully executed in the Department of Correction (DOC). On

      April 29, 2014, Delp filed a pro se verified petition for credit time not previously

      awarded by the DOC in which he stated that he was entitled to credit time for

      completing the Purposeful Living Units Serve Program (PLUS Program)—an

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      existing faith and character based program that the DOC approved as a

      reformative program in 2010, and which allows offenders to earn up to six

      months of credit time upon completion.1 On May 8, 2014, the trial court

      denied Delp’s claim stating that it had “no jurisdiction to [override] the

      determinations of DOC” or determine “how much credit time is to be awarded

      within the parameters of [Indiana Code section] 35-50-6-3.3.” (Appellant’s

      App. p. 24).


[5]   Delp now appeals. Additional information will be provided as necessary.


                                   DISCUSSION AND DECISION.

                                     I. Subject Matter Jurisdiction

[6]   We first note that the State urges us to affirm the trial court’s denial of Delp’s

      petition for the award of education credit on the basis of lack of jurisdiction.

      The State contends that decisions regarding the award of education credit rest

      solely within the DOC’s jurisdiction. The trial court’s order denying Delp’s

      petition stated that “Ind. Code [section] 35-50-6-3.3 is unambiguous in its




      1
        According to the DOC website, the purpose of the PLUS Program is to provide an environment for
      offenders to change their past attitudes and behaviors in a manner that will assist them to return to the
      outside community. http://www.in.gov/idoc/files/01-03104_AP_Faith_and_Character_Based_Housing_8-
      1-07.pdf (last visited Mar. 4, 2015).

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      delegation of authority and jurisdiction to the [DOC] in approving programs

      and granting or denying earned credit time. Nothing in the statute grants the

      trial courts authority to give more credit time or less credit time than is set out

      in the statutes.” (Appellant’s App. p. 25). We agree.


[7]   In general, the trial court determines the amount of credit time to which a

      defendant is entitled as of the time of sentencing, and the DOC determines

      modifications to credit time thereafter, including modifications for educational

      credit. See Samuels v. State, 849 N.E.2d 689, 692 (Ind. Ct. App. 2006), trans.

      denied. Indiana’s education credit statute provides in pertinent part that

              (b) . . . a person may earn credit time if, while confined by the [DOC],
              the person:
              (1) is in credit Class I, Class A, or Class B;
              (2) demonstrates a pattern consistent with rehabilitation; and
              (3) successfully completes requirements to obtain at least one (1) of the
              following:
              (A) A certificate of completion of a career and technical or vocational
              education program approved by the [DOC].
              (B) A certificate of completion of a substance abuse program approved
              by the [DOC].
              (C) A certificate of completion of a literacy and basic life skills
              program approved by the [DOC].
              (D) A certificate of completion of a reformative program approved by
              the [DOC].



[8]   Indiana Code section 35-50-6-3.3. Delp claims that he was in credit Class I, he

      had demonstrated a pattern consistent with rehabilitation, and that he had

      competed the PLUS Program, therefore, he is eligible to additional credit time.

      Even without determining whether Delp is in credit Class I or whether he has

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      demonstrated a pattern consistent with rehabilitation, on the face of his claim,

      Delp cannot earn credit through the PLUS program which is a reformative

      program. We note that all four programs listed in Ind. Code §. 35-50-6-3.3

      (b)(3) are available to all offenders, however, sex offenders are excluded from

      earning education credit through reformative programs. This is because

      Indiana Code section 35-50-6-3.3 (d)(8) prohibits sex offenders from earning

      credit time through reformative programs. It is uncontroverted that Delp was a

      sex offender convicted of two Counts of child molesting. As such, Delp could

      not earn education credit through the PLUS Program. In this regard, we

      conclude that the trial court’s order that it could not grant Delp’s earned credit

      time other than what is set out in the statute was correct in all respects.


[9]   Lastly, the State argues that Delp failed to exhaust his remedies with the DOC

      before resorting to judicial review. We note that the failure to exhaust

      administrative remedies is treated as an issue of subject matter jurisdiction. City

      of East Chicago v. Copeland, 839 N.E.2d 737, 742 (Ind. Ct. App. 2005), trans.

      denied. The legislature has determined that offender grievances arising out of

      administrative acts or omissions that affect the offender are to be resolved

      through a departmental grievance procedure that conforms to the requirements

      of Indiana Code section 11-11-1-1. If an offender exhausts all of his

      administrative remedies through the DOC and still fails to obtain the relief

      sought, Indiana’s courts then have subject matter jurisdiction over a request for

      educational credit time. Burks-Bey v. State, 903 N.E.2d 1041, 1043 (Ind. Ct.

      App. 2009). The burden then shifts to the offender to show what the relevant


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       DOC procedures are and that he has exhausted them at all levels. Id. A

       petitioner’s failure to exhaust his administrative remedies subjects his claim to

       dismissal. See Young v. State, 888 N.E.2d at 1255, 1257 (Ind. 2008).


[10]   Delp maintains that he exhausted all of his administrative remedies. Although

       Delp did not provide us with the relevant DOC procedures he pursued, he

       includes correspondences with various prison officials indicating the steps he

       took to have his claim addressed. The record shows that on February 13, 2014,

       Delp wrote to his house counselor requesting a formal interview and claiming

       that he was due credit time after completing the PLUS Program. Delp’s request

       was denied, and he was directed to address his grievance to the Central Office,

       which was a different office. The following day, February 14, 2014, Delp

       repeated his request with the Classification Office. The same day, the

       Classification Office responded by stating, “Central office denied you. That

       decision is final. Read policy.” (Appellant’s App. p. 27). On April 11, 2014,

       Delp filed a Classification Appeal challenging the denial of his grievance and

       again asked for the DOC to award him education credit for completing the

       PLUS Program. Three days later, on April 14, 2014, Delp’s appeal was denied

       on the basis that “credit time is not subject to the classification appeals process.

       Central Office is the final authority in approving or denying credit time.”

       (Appellant’s App. p. 28).


[11]   As such, we find that Classification Office’s response of February 14, 2014

       stating that “[c]entral office denied you . . . [t]hat decision is final,” is an

       indication that the DOC reached its final decision. (Appellant’s App. p. 27). In

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       this regard, we conclude that Delp exhausted all his administrative remedies,

       and we conclude that trial court did have subject matter jurisdiction, and by

       extension, so do we. City of East Chicago, 839 N.E.2d at 742.


                                   II. Indiana Code Section 35-50-6-3.3

[12]   We now turn to Delp’s claim that the application of Indiana Code section 35-

       50-6-3.3 violates ex post facto laws under the United States and Indiana

       Constitutions. Article I, § 10 of the United States Constitution prohibits the

       States from enacting laws with certain retroactive effects. Minton v. State, 802

       N.E.2d 929, 933 (Ind. Ct. App. 2004), trans. denied. Similarly, the Indiana

       Constitution provides, “No ex post facto law . . . shall ever be passed.” Ind.

       Const. Art. I, § 24. The analysis of an ex post facto claim is the same under both

       the federal and Indiana constitutions. Minton, 802 N.E.2d at 933.


[13]   Our supreme court has held that “[a] law is ex post facto if it ‘substantially

       disadvantages a defendant because it increases his punishment, changes the

       elements of or ultimate facts necessary to prove the offense, or deprives a

       defendant of some defense or lesser punishment that was available at the time

       of the crime.’” Stroud v. State, 809 N.E.2d 274, 288 (Ind. 2004). The focus of

       our inquiry is not whether a legislative change produced a disadvantage for the

       defendant, but rather whether such change altered the definition of criminal

       conduct or increased the penalty by which a crime is punishable. Minton, 802

       N.E.2d at 934. Additionally, we note that the prohibition against ex post facto

       laws is not limited to substantive statutes; instead, it encompasses any law in


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       which the effect is to “make innocent acts criminal, alter the nature of the

       offense, or increase the punishment.” Stroud, 809 N.E.2d at 288.


[14]   The education credit statute, Indiana Code section 35-50-6-3.3 is a vehicle for

       inmates to earn additional credit time while incarcerated in the DOC. The

       purpose of the legislation is to encourage offenders to further their education in

       the hopes of enhancing rehabilitation. See Members v. State, 851 N.E.2d 979,

       982 (Ind. Ct. App. 2008). Prior to 2010, the education credit statute allowed

       offenders to earn credit time upon the successful completion of at least one of

       the following programs approved by the DOC: (1) a career and technical

       education, (2) a substance abuse program, and (3) a literacy and basic life skills

       program. By an amendment that went into effect in July 2010, the legislature

       revised the education credit statute to allow offenders to earn credit time upon

       the completion of any reformative programs approved by the DOC. See I.C. §

       35-50-6-3.3(b)(3)(D); Pub. L. No. 42-2010, §2. Nevertheless, through the same

       legislative act, it proscribed sex offenders from earning education credit time

       from reformative programs but in essence left other programs open. See I.C. §

       35-50-6.3.3(d)(8). Consistent with the 2010 amendments, on June 8, 2010, the

       DOC issued an executive directive approving the existing PLUS Program as a

       reformative program. In addition, the directive allowed all offenders excluding

       sex offenders to earn up to six months of credit time upon completion.


[15]   We find no merit in Delp’s argument that the application of Indiana Code

       section 35-50-6-3.3(d)(8) violates the ex post facto prohibition to the extent that it

       increases the length of his sentence as it deprives him an opportunity to have

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       education credit applied to his served sentence. Indiana Code section 35-50-6-

       3.3(d)(8), both its availability and restriction, did not come into existence until

       2010. It cannot be an ex post facto violation to deprive an offender of an

       opportunity that he never had. See Budd v. State, 935 N.E.2d 746, 752 (Ind. Ct.

       App. 2010). In Budd, Budd argued that it was an ex post facto violation to

       deprive him the opportunity to have his education credit time subtracted from

       his release date. Id. This court found that there was no ex post facto violation

       because this was an opportunity Budd never had when he was sentenced for the

       sex crimes in 1983; accordingly, he was not entitled to education credit time.

       Id.


[16]   Likewise, the 2010 amendments allowing offenders to earn credit time upon the

       completion of reformative program such as the PLUS Program was not

       available to Delp when he was convicted of the sex crimes in 2008. As such,

       the deprivation of an opportunity to earn education credit through the PLUS

       Program cannot be an ex post facto violation. Although, the education credit

       statute places a restriction on sex offenders from earning education credit from

       reformative programs, that limitation does not render the law ex post facto as it

       neither alters the definition of child molesting nor increases the penalty. In light

       of the foregoing, Delp’s ex post facto claim fails. See Minton, 802 N.E.2d at 934.


                                               CONCLUSION

[17]   Based on the foregoing, we conclude that (1) the trial court did not abuse its

       discretion in finding that it is the responsibility of the DOC to deny or restore

       credit time (2) Ind. Code §.35-50-6-3.3 (d)(8) prohibits Delp from earning
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       additional education credit through the PLUS Program given that he is sex

       offender (3) Indiana Code section 35-50-6-3.3 does not violate ex post facto laws

       under the United States and Indiana Constitutions.


[18]   Affirmed.


[19]   Vaidik, C. J. and Baker, J. concur




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