The trial judge in Allen County granted the following motion I filed in 2016, as a result of which my client was released from prison a couple years earlier than he would have been released otherwise:

MEMORANDUM OF LAW IN SUPPORT OF MOTION BY PETITIONER FOR SUMMARY DISPOSITION OF PETITION FOR POST-CONVICTION RELIEF

The court may grant this motion by the petitioner [“Jones”] if it appears that “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ind. Post-Conviction Rule 1(4)(g); Adcock v. State, 22 N.E.3d 720, 723 (Ind.Ct.App. 2014).

The State in paragraph 4(c) of its Answer admits, inter alia, the following allegations in section 9 of Jones’ Petition:

In the past, offenders who committed their crimes prior to January 1, 2006, like Jones, received one year of educational credit time for each associate’s degree that they completed. See, e.g., Moshenek v. Anderson, 718 N.E.2d 811 (Ind.Ct.App. 1999); Paul v. State, 888 N.E.2d 818, 826-27 (Ind.Ct.App. 2008). Nevertheless, IDOC now maintains that Jones is not entitled to one year’s credit for each associate’s degree, and justifies its decision to give Jones less than one year’s credit for each associate’s degree by relying on I.C. § 35-50-6-3.3(e) [the “proportionality law”], which went into effect on July 1, 2014, and which states: “Credit time earned under this section must be directly proportional to the time served and course work completed while incarcerated.” IDOC interprets the new proportionality law as not allowing the “re-use” of credit hours, such as the credit hours upon which Jones’ associate’s degree from Grace College was based, and for which he received a one-year time cut. In responding by email to the undersigned counsel for Jones, IDOC explained this interpretation, and how this interpretation applies to Jones, as follows: “Specifically, in obtaining the Purdue associate degree, your client has earned 18 credits that have not been previously used for credit time cut. Therefore, under our calculations, 18 credits are 21.42% of the degree, and 365 x 21.42% = 78 days. Thus, we are granting a 78 day time cut for the Purdue degree.”

The State also admits, in paragraph 4(d) of its Answer, the allegation in section 9 of Jones’ Petition that “there is case law holding that a change in the Indiana Code and IDOC policy limiting an offender to credit for a single associate’s degree, when at the time he committed the offense ‘the statute allowed him to earn more than one associate’s degree and earn one year’s credit for each degree,’ violated the constitutional prohibition against ex post facto laws. Paul v. State, 888 N.E.2d at 827.”

Nevertheless, the State denies in its Answer and attached Memorandum of Law that this precedent applies to the new proportionality law, and denies that the Indiana Department of Correction’s interpretation and application of the new proportionality law to deny Jones one year’s credit for each associate’s degree is a violation of his constitutional protections against ex post facto laws. The State’s argument rests on two cases, both of which in fact ultimately support Jones: Alvers v. State, 489 N.E.2d 83 (Ind.Ct.App. 1986), trans. denied; and Miller v. Bryant, 644 N.E.2d 188 (Ind.Ct.App. 1994). The State cites Alvers for the “fundamental rule of statutory construction that ‘when the legislature enacts a statutory amendment to a prior statute, a presumption arises that the legislature intended to change the law unless it clearly appears that the amendment was made only to express the original intention of the legislature more clearly.’” The State argues that the new proportionality law did not actually change the law at all, but instead only expressed more clearly the legislature’s intention all along (i.e., since before Jones committed the crime for which he is incarcerated), and that therefore the application of it to Jones is not an ex post facto punishment.

There are numerous fatal flaws in this argument. In the first place, it is quite creative, and not in a good or persuasive way. Alvers had nothing to do with ex post facto laws, and the State cites no case in which this “fundamental rule of statutory construction” was brought to bear on the question of whether a statutory amendment was or was not an ex post facto law. It is therefore not at all clear from precedent how it might or might not apply in this particular context, and in what kinds of circumstances.

Second, to the extent that it could apply to the ex post facto context, this “fundamental rule of statutory construction” positively favors Jones, since it sets up in his favor the presumption that the new proportionality law did in fact “change the law,” and therefore is a prohibited ex post facto law if applied to Jones, which the State can only overcome by showing that it “clearly appears” that it did not “change the law.” This the State cannot do. In fact, the State cannot even “clearly” show that its own current interpretation of the proportionality law, by which only some percentage of the ordinary one-year time cut for an associate’s degree is awarded instead of the full year for second and third associate’s degrees, logically follows from the actual statutory language. The actual statutory language on its face instead seems intended to address the case of an offender who had almost but not quite completed a college degree prior to becoming incarcerated, so that (absent the proportionality law) he would only need to complete minimal course work “while incarcerated” in order to earn a very substantial time cut that was “disproportional” to his sentence. If it isn’t even “clear” that the DOC’s interpretation and application of the new proportionality law is supported by the actual language of the new proportionality law, then it is very hard to argue that it “clearly appears” that the proportionality law was only enacted to express “more clearly” the legislature’s “original intention” that only some percentage of the ordinary one-year time cut for an associate’s degree earned after the first associate’s degree would be awarded instead of the full year. It does not “clearly appear” from the actual statutory language of the new proportionality law that that is the intention of the legislature even now, let alone that that was the legislature’s “original intention”!

Third, the other case cited by the State in support of its argument, Miller v. Bryant, supra, in fact demonstrates that the legislature expressly contemplated and was not scandalized by the prospect that an offender might receive the entire one-year time cut for an associate’s degree for completing only minimal course work. The State cites Miller for its distinction between the possible legislative intentions of, on the one hand, rewarding a prisoner for having attained an “educational milestone,” and, on the other, providing an incentive for prisoners to pursue “educational advancement” while incarcerated. Miller concluded that the statute was intended to provide incentive to further one’s education while incarcerated, and not simply to “reward a prisoner for having attained an educational milestone.” But this conclusion is quite straightforward, and doesn’t mean what the State wants it to mean here. If the intention of the legislature had merely been to reward the achievement of an academic milestone (as this formula is understood by Miller), “without regard to when the accomplishment was achieved,” then an individual who had earned a bachelor’s degree before committing his crime would automatically receive a time cut and in effect a correspondingly lesser sentence just for having a bachelor’s degree when he committed his crime. This obviously is not and was never the legislature’s intention. The legislature’s intention rather was to encourage inmates to make the most of their time and to better themselves while incarcerated. But this does not mean that the legislature was fixated on how many hours an inmate spent in pursuing “educational advancement.” Rather, the legislature’s focus was on the “educational advancement” itself. It wanted to provide an incentive for “educational advancement.” (If it seems Jones is here making fine distinctions without a difference, he is in fact merely trying to respond to the fine distinctions without a difference being made by the State, upon whom the burden to show that it “clearly appears” that the proportionality law did not “change the law” rests.) Two associate’s degrees are better than one, and three are better than two. That the legislature recognized this is shown by the fact that, as the State acknowledges in its Memorandum of Law attached to its Answer, it is “not disputed that, at the time of [Jones’] offenses in 2004, an offender could obtain credit time for multiple degrees on the same level.” It doesn’t really matter whether we call each degree an “educational milestone” or an “educational advancement.” What mattered to the legislature, according to Miller, is, not only that the inmate attains these educational milestones or advancements “while incarcerated,” but also that the inmate was motivated, or at least potentially motivated, to pursue these educational advancements by the promise of time cuts as a reward for having attained these educational “milestones” or “advancements.” This is highlighted by the circumstance that in that case the Court of Appeals found that the inmate was out of luck, and was not entitled to any time cut for having attained an associate’s degree, even though he had completed the requirements for the associate’s degree while incarcerated, because the statute providing for such time cuts had not gone into effect until shortly after he had completed those requirements. Miller then stands for almost the opposite of what the State wants it to stand for. If the prisoner in that case had completed just one measly credit hour after the effective date of the statute, he would have been entitled to a full year’s credit time for having completed an associate’s degree, even if he had completed all the other requirements for the degree prior to committing his offense and prior to becoming incarcerated. (As the State acknowledged in its Memorandum of Law in describing the holding of Miller: “The legislature could and did specifically prescribe that an offender could receive the entire specified amount of credit time so long as he completed some part of the degree requirements after the effective date of IC 35-50-6-3.3.”) Now, the new proportionality law has changed all of that. If an inmate has completed 99% of the requirements of a degree prior to becoming incarcerated and completes only 1% while incarcerated, he will now only receive a “proportional” amount of credit time. It has “changed the law” from what it was before, from the law as described in Miller. In fact, by the proportionality law’s actual language it seems to be concerned precisely with this situation of an inmate who has completed most of the course requirements for earning a degree prior to becoming incarcerated, rather than with the situation of an inmate like Jones who has completed all of the educational advancements for which he seeks the promised credit time while incarcerated. But while the new proportionality law has changed the law for inmates in the former situation in general, it cannot have changed it for those inmates in that situation who committed their crimes when the law was different, without violating the constitutional prohibitions against ex post facto laws, and it certainly likewise cannot have changed it for those inmates in Jones’ situation who committed their crimes when the law was different. Miller shows that prior to the enactment of the proportionality law the legislature wasn’t really concerned with “proportionality.” It was concerned with giving inmates an incentive to better themselves and become better qualified to obtain employment after prison by earning educational degrees. It would be wrong to pull the rug out from under them after they have responded to those incentives.

Miller suggests that the “piece of paper” from the academic institution, the “credential,” or what the State here derogatorily refers to as a mere “milestone,” indeed mattered to the legislature when it enacted the educational credit time statute, and mattered to it more than how many hours were put in to achieving it – perhaps because the legislature recognized that that piece of paper will presumably be of benefit to the former inmate when he is released from prison, and that that credential will improve his prospects for getting a job and therefore of rehabilitation.

In conclusion, there is no genuine issue of material fact in this case, and Jones is entitled to judgment as a matter of law. It is undisputed that at the time Jones committed the offense for which he is incarcerated ‘the statute allowed him to earn more than one associate’s degree and earn one year’s credit for each degree.’ Paul v. State, 888 N.E.2d at 827. It is undisputed that the Department of Corrections is now basing its refusal to give Jones one year’s credit for each associate’s degree he has earned on a law that went into effect almost ten years after Jones committed the offense for which he is incarcerated. The State has not claimed that prior to the effective date of this new “proportionality law” the Department of Corrections ever gave inmates less than one year’s credit for each associate’s degree earned according to the method the Department of Corrections has now interpolated from this new law. If the Department of Corrections had ever tried to do so in the years prior to the enactment of the proportionality law, we surely would have seen some case law on the subject by now. It is safe to say that virtually every inmate in Indiana who earned two or more associate’s degree before the enactment of the proportionality law in 2014 “re-used” some credits from the first degree in earning subsequent degrees, and that until the enactment of the proportionality law such inmates were not penalized for doing so, but instead received a full year’s credit for each degree. It is also safe to say the same for those inmates who first earned an associate’s degree and then went on to earn a bachelor’s degree. Surely many, most, or all of these inmates used some of the credits from the associate’s degree for the bachelor’s degree, and yet there is no case law suggesting that any of these inmates received less than the full two-year time cut to which earning the bachelor’s degree entitled them. Again, the State has not alleged otherwise. It is, therefore, frankly absurd for the State to now claim that the legislature nevertheless intended all along for the Department of Corrections to give inmates less than one year’s credit for each associate’s degree earned according to the above-described method, when neither the practice of the Department of Corrections during all that time, nor the statutory language in place when Jones committed the offense for which he is incarcerated, nor even (arguably) the current statutory language of the proportionality law itself, reflects such an intention. It, therefore, couldn’t be clearer that this new proportionality law as interpreted and applied to Jones by the Department of Corrections represents a “change in the law” that has “made more onerous the punishment” for the crime he committed “before enactment” of the new proportionality law, in violation of the constitutional prohibitions against ex post facto laws. Id.

Respectfully submitted,

                                                                                    

 John A. Kindley, #23839-71

 123 S. Michigan St., P.O. Box 199

 Lakeville, IN 46536

 PH (574) 968-8602

 Attorney for Petitioner