FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS R. LONG STEVE CARTER
Anderson, Indiana Attorney General of Indiana
DAVID L. STEINER
Deputy Attorney General
Indianapolis, Indiana
ZETTIE COTTON, )
)
Appellant-Respondent, )
)
vs. ) No. 48A04-0204-CV-185
)
EDWARD ELLSWORTH, )
)
Appellee-Petitioner. )
OPINION - FOR PUBLICATION
(1) is in credit Class I;
(2) has demonstrated a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain one (1) of the following:
. . . .
(C) An associate’s degree from an approved institution of higher learning (as defined
under IC 20-12-21-3).
(D) A bachelor’s degree from an approved institution of higher learning (as defined
under IC 20-12-21-3).
(b) In addition to any credit time that a person earns under subsection
(a) or section 3 of this chapter, a person may earn credit time
if, while confined by the department of correction, the person:
(1) is in credit Class I;
(2) demonstrates a pattern consistent with rehabilitation; and
(3) successfully completes requirements to obtain at least one (1) of the following:
. . . .
(B) A certificate of completion of a substance abuse program approved by the
department of correction.
. . . .
(d) The amount of credit time a person may earn under this section
is the following:
. . . .
(3) One (1) year for completion of an associate’s degree.
(4) Two (2) years for completion of a bachelor’s degree.
. . . .
(6) Not more than a total of six (6) months of credit,
as determined by the department of correction, for the completion of one (1)
or more substance abuse programs approved by the department of correction.
. . . .
(e) Credit time earned by a person under this section is subtracted from
the release date that would otherwise apply to the person after subtracting all
other credit time earned by the person.
. . . .
(h) Subsection (e) applies only to a person who completes at least a
portion of the degree or program requirements under subsection (a) or (b) after
June 30, 1999. Credit time earned by a person under subsection (a)
for a diploma or degree completed before July 1, 1999, shall be subtracted
from the period of imprisonment imposed on the person by the sentencing court.
(i) The maximum amount of credit time a person may earn under this
section is the lesser of:
(1) four (4) years; or
(2) one-third (1/3) of the person’s total applicable credit time.”
Prior to 1999, subsection (e) required the credit time to be subtracted from
the “period of imprisonment imposed on the person by the sentencing court” rather
than the “minimum release date of the sentence imposed by the court.”
Subsection (h) provides that the former version of the statute should continue to
be applied to credit time earned prior to the amendment.
The trial court determined that Ellsworth was entitled to the ameliorative effect of
the 1999 amendment to the educational credit time statute. Under the doctrine
of amelioration, a defendant who is sentenced after the effective date of a
statute providing for more lenient sentencing is entitled to be sentenced pursuant to
that statute rather than the sentencing statute in effect at the time of
the commission or conviction of the crime. DeSantis v. State, 760 N.E.2d
641, 645 (Ind. Ct. App. 2001), adopted on trans. 778 N.E.2d 787 (Ind.
2002); Renfroe v. State, 743 N.E.2d 299, 300-01 (Ind. Ct. App. 2001).
Although the doctrine of amelioration does not strictly apply in cases involving post-sentence
education credit, as opposed to a substantive sentencing provision, this court has applied
the principle to avoid subjecting an inmate to an amendment to the statute
that would effectively deprive him of credit time. See Renfroe, 743 N.E.2d
at 301. But see Winbush v. State, 776 N.E.2d 1219, 1225 (Ind.
Ct. App. 2002), trans. denied (2003) (noting courts’ disinclination to extend doctrine of
amelioration beyond strict sense of doctrine: amendment to statute is ameliorative only if
maximum penalty under new version of statute is shorter than maximum penalty under
old version of statute i.e., where maximum sentence is reduced).
We likewise hold that Ellsworth should receive the benefit of the 1999 amendment
to the statute under the limited circumstances presented here, where he was entitled
to credit time in excess of the statutory maximum for degrees earned after
the statutory change. The DOC maintains that the plain meaning of subsection
(h) of the statute requires it to deduct Ellsworth’s credit for his associate’s
degree from his “total period of imprisonment” because he completed it before 1999.
We have no quarrel with this premise. However, in cases like
this one, where an inmate has pre-1999 education credit, plus the maximum allowable
post-1999 credit, nothing in the language of the statute prevents the DOC from
striking the pre-1999 credit in order to give the inmate the benefit of
the full four years of his or her post-1999 educational credits. Because
it encourages further educational attainments, this result is consistent with the legislative intent
underlying the credit time statute, which we have previously determined is to enhance
rehabilitation through education. Moshenek v. Anderson, 718 N.E.2d 811, 813 (Ind. Ct.
App. 1999). As we have stated, “discouraging a person from pursuing further
education flies in the face of the legislature’s intent.” Id. at 814
. See also Diaz, 753 N.E.2d at 729 (“Inmates should be rewarded
for earning diplomas and degrees . . . .”). Here, Ellsworth’s attempts
at rehabilitation through education should be lauded. Rehabilitation, after all, is the
goal of Indiana’s penal system. “The penal code shall be founded on
the principles of reformation, and not of vindictive justice.” Ind. Const., Art.
1, § 18.
Affirmed.
SHARPNACK, J., concurs.
SULLIVAN, J., concurs with separate opinion.
ZETTIE COTTON, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-0204-CV-185
)
EDWARD ELLSWORTH, )
)
Appellee-Petitioner. )
SULLIVAN Judge, concurring
I fully concur in the opinion of the majority giving ameliorative effect to
the General Assembly’s 1999 amendment to I.C. § 35-50-6-3.3. In doing
so, however, I must acknowledge that the opinion authored in Winbush v. State,
776 N.E.2d 1219 (Ind. Ct. App. 2002), trans. denied, might seem to preclude
that concurrence.
In
Winbush, we were considering a statutory amendment which permitted suspension of a
portion of a minimum sentence when the previous version of the statute did
not permit such suspension. We there held:
“Because the amendment would have allowed the trial court to suspend part or
all of Russell’s minimum sentence, the amended statute would appear to be ameliorative
according to the generally accepted definition of ameliorate: ‘to make better.’
See
Black’s Law Dictionary 80 (7th ed. 1999); Webster’s Third New International Dictionary 67
(1976). However, case law has interpreted an amendment to a statute to
be ameliorative only if the maximum penalty under the new version of the
statute is shorter than the maximum penalty under the old version of the
statute.” Winbush, 776 N.E.2d at 1225.
The case before us does not concern a sentencing statute as such.
I therefore am of the view that we are free to afford relief
to a convicted person with respect to his projected release date without altering
the original sentence imposed, whether with regard to the maximum sentence permissible at
the time of sentencing or otherwise, e.g. with respect to suspension of a
portion of the sentence imposed.
I do not view Indiana Dep’t of Envtl. Mgmt. v. Med. Disposal Servs.
Inc., 729 N.E.2d 577 (Ind. 2000) (“MDSI”), to preclude amelioration in the
situation before us. In Winbush, we cited MDSI noting that in that
case, our Supreme Court had chosen not to apply the doctrine of amelioration
in a case involving civil penalties for failure to comply with IDEM permit
requirements.
The original litigation had finally resolved MDSI’s obligation to operate under
a permit but had left the matter of civil penalties unresolved. After
the original litigation had become final by virtue of the Supreme Court’s denial
of transfer, but before resolution of the issue of civil penalties for the
permit violation, the General Assembly amended the applicable statute and exempted the medical
waste disposal activities of MDSI from IDEM permit requirements.
In determining to not relieve MDSI from imposition of civil penalties, the court’s
holding was premised upon the conclusion that “[t]he legislature’s
subsequent legalization of MDSI’s
activities, however, did not relieve MDSI of the obligation it faced at the
time.” 729 N.E.2d at 581 (emphasis supplied). This holding was clearly
based upon the fact that MDSI’s activities were illegal at the time in
question and that the civil penalty consequences attached to the illegal acts at
the time they were done.
Our situation is wholly unlike that in
MDSI. Here the academic achievements
of an inmate take place subsequent to his sentencing and incarceration. The
impact of education credits is therefore felt prospectively with regard to a projected
release date. It does not retroactively alter the sentence originally imposed for
his criminal acts. For this reason I do not construe MDSI as
an impediment to the relief we afford today.