Unfortunately for Petitioner, the fallout from an ex-post-facto misapplication of law isn’t necessarily radioactive in the legal sense.
Petitioner pleaded guilty to three counts of lewd and lascivious
conduct and was sentenced to three-to-eight years in prison. While Petitioner was in prison, the
legislature enacted a delayed-release statute that the DOC applied to
Petitioner’s convictions to extend his minimum sentence.
Petitioner successfully challenged the extension of his minimum
sentence with an ex-post-facto claim, and the Department of Corrections (DOC)
corrected his sentence. Petitioner’s current
claim is that the corrected application delayed his participation in required
pre-release programming, which effectively denied him a chance at parole once
his minimum was complete.
Inmates are generally up for parole consideration when they
complete their minimum prison terms. In
Petitioner’s case, that was in February 2011.
But before the DOC would recommend Petitioner for parole, it required
him to complete a 12-to-18-month sex-offender-treatment program. The timing of the programming is generally
calculated so that the programming completes close to the inmate’s potential
release date.
But the legislature passed the delayed-release statute in the
meantime, which pushed Petitioner’s release date out several years. Petitioner and several other inmates
challenged the DOC’s application of the statute to them as an ex-post-facto
violation and were successful. And so,
Petitioner’s minimum sentence returned to February 2011. Petitioner waived his early 2011 parole
hearing, however, “because his case worker told him he had no chance of parole
because he had not entered sex-offender programming.”
Petitioner began the required programming in March 2011. Just under a year later, he had a parole
hearing and was denied parole. So he
filed a petition for post-conviction relief, basically arguing that the
aftereffects of the misapplication of the delayed-release statute effectively
denied him early release and violated his plea bargain—in which he bargained
for a shot at early release.
The State moved to dismiss for failure to state a claim upon which
relief could be granted and Petitioner moved for summary judgment. The trial court granted the State’s motion
and Petitioner appealed.
A dismissal for
failure to state a claim upon which relief can be granted is
appropriate when there ain’t a snowball’s chance in hell for the plaintiff’s
claim. No deference here, the SCOV
reviews the case de novo. All evidence
is viewed in the light most favorable to the plaintiff.
Petitioner’s first argument is essentially that if it weren’t for
the DOC’s damned application of the found-to-be-ex-post-facto law, he’d have
had a shot at getting out early. The
SCOV sidesteps this argument to a certain extent, reasoning that the parole
board had other reasons for denying his release and Petitioner actually has
been eligible for parole since his minimum release date. Ain’t no way he was getting out without
completing the programming, but still, technically eligible.
The SCOV acknowledges Petitioner’s frustration with the
interaction between the improper application of the statute (oops—but it’s now
fixed) and DOC’s internal programming requirements. The SCOV notes that if it weren’t for that
snafu, Petitioner might have
completed programming; he might have
gotten released.
But that doesn’t cut the mustard.
While Petitioner’s dilemma may be collaterally related to the
now-remedied improper application of the delayed release statute, it’s only one
of many factors contributing to Petitioner’s continued incarceration.
And the DOC’s programming requirement has always been there. It was there before the statute was
improperly applied because Petitioner was told he would be eligible
to enter programming in June of ’09.
The DOC didn’t change anything, so there’s no retroactive application of
a harsher punishment.
And the SCOV reasons that the program is rehabilitative, not
punitive. The SCOV articulates it thus:
“Put simply, petitioner is not eligible for release because he is an untreated
sex offender, not because a retroactively applied statute continues to bar his
release.”
And so, the trial court properly granted the motion to dismiss as
far as any ex-post-facto claim goes.
But we’re not quite done.
Petitioner also argues that “the temporary application of the delayed-release
statute rendered his plea agreement involuntary.” Essentially the argument is that he made a
deal which gave him a real possibility of parole and the DOC’s misapplication
of the statute yanked that away.
The SCOV begins its analysis of this claim by noting that parties
to a plea agreement are bound by its express terms. The SCOV sees no express promise of parole in
the terms of the plea.
The SCOV does acknowledge that even so, Petitioner has a “chance”
if there was a material misunderstanding regarding his parole eligibility when
he entered his plea. Petitioner’s
“snowball” here would require (1) that he reasonably relied on a material
misunderstanding regarding his parole eligibility; and (2) that he was
prejudiced by the misunderstanding. Under
this heat lamp, Petitioner’s snowball melts.
The SCOV points to a 2008 decision dealing with a change in parole
regs after a plea was entered. Though
the inmate claimed knowledge of the parole regs at the time he entered his
plea, and the DOC subsequently changed up the rules, the SCOV concluded, after
a survey of other states’ laws, that a change to parole-eligibility law after a
plea agreement does not render a plea involuntary. The SCOV reaches the same conclusion
here. You can’t predict the future and
such.
Finally, the SCOV reasons that Petitioner is serving precisely the
sentence he bargained for. The
programming was never guaranteed or contemplated in the agreement. Petitioner doesn’t present a claim upon which
relief can be granted. The SCOV affirms
the dismissal.
Who can blame Petitioner for wanting to get out? And Petitioner’s gripe is legitimate—the SCOV
acknowledges that willingly. But as far
as the law goes, Petitioner will just have to do his programming and jump
through the DOC’s hoops ‘cause his PCR is DOA.
Comments
Post a Comment