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Date: 06-30-2021
Case Style:
Kennic T Brown v. State of Indiana
Case Number: 20A-CR-02261
Judge: Margret G. Robb
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney Genera
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Defendant charged with a battery against a public safety officer.
In 2019, Brown was an inmate at the Miami Correctional Facility. Brown
allegedly fought with and scratched an on-duty prison guard on February 9,
2019. In March, the DOC held a disciplinary hearing regarding the allegation
that Brown violated conduct code A-102, assault/battery, a Class A offense, as
a result of this incident. Brown was found to have committed the conduct
violation and the following discipline was imposed: 360 days in the restrictive
housing unit, a 45-day commissary restriction, deprivation of 180 days of credit
time, and demotion of one credit class. His appeal to the warden was denied. Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 3 of 12
[3] Also in March, the State charged Brown with battery against a public safety
officer based on the February 9 incident. In May 2020, Brown filed a motion to
dismiss the charge, arguing that the prosecution is barred by state and federal
principles of double jeopardy because he was already punished by the DOC
through its administrative disciplinary proceedings for the same conduct. The
trial court held a hearing on the motion in September.
[4] Brown testified that although there are certain prison offenses for which one
can earn back deprived credit time, assault on staff is not one of them. See
Transcript, Volume II at 10. He also testified that he had served his 360 days in
the restrictive housing unit, which means that he was in a cell by himself for
nearly a year and he was unable to communicate with other inmates except
when he was in the recreational cage. DOC rules state that inmates in the
restrictive housing unit are to get one hour outside the cell five days per week,
see Appellant’s Appendix, Volume II at 71, but Brown testified that he got that
time only about two days a week, see Tr., Vol. II at 12. Other inmates “acting
up” or short staffing can affect the recreational time. Id. Brown testified that
his time in restrictive housing “messed with [his] mind” and “just sitting in
there thinking about getting punished twice about something [he] didn’t do”
made him suicidal. Id. at 13. In support of his motion to dismiss, Brown also
submitted several articles about the effects of solitary confinement and its
restrictions. See Appellant’s App., Vol. II at 74-101.
[5] Brown also submitted to the trial court sections of the DOC’s Manual of
Policies and Procedures, including section 02-04-101, the Disciplinary Code for Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 4 of 12
Adult Offenders, see id. at 31-66, and section 02-04-102, the Use and Operation
of Adult Offender Disciplinary Restrictive Status Housing, see id. at 67-73.
Specifically, Brown cited to section IX.E.9.a.3 of the Disciplinary Code for
Adult Offenders that states a guilty finding on conduct code A-102 (or any
Class A offense) “shall constitute the ineligibility of restoration with regard to
any and all deprived credit time which occurred during the current commitment
period.” Id. at 55-56. And Brown argued to the trial court that “the D.O.C.
itself in it’s [sic] forms in the report of disciplinary hearing calls this disciplinary
restrictive housing. It’s clearly a discipline. It’s clearly a punishment.” Tr.,
Vol. II at 31 (emphasis added); see Appellant’s App., Vol. II at 19.
[6] The trial court issued an order on October 2, 2020, concluding that “the
administrative sanctions imposed by the [DOC] against Mr. Brown did not
constitute double jeopardy barring criminal prosecution” and denied the motion
to dismiss. Appealed Order at 1, ¶ 3. Brown now appeals that decision.
Discussion and Decision
I. Standard of Review
[7] Generally, we review a trial court’s ruling on a motion to dismiss for abuse of
discretion. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010).
However, whether a prosecution is barred by double jeopardy is a question of
law, State v. Allen, 646 N.E.2d 965, 972 (Ind. Ct. App. 1995), trans. denied, and
we therefore apply a de novo standard of review, Austin v. State, 997 N.E.2d
1027, 1039 (Ind. 2013). Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 5 of 12
II. Double Jeopardy
[8] Brown contends that the criminal prosecution for battery must be dismissed
because otherwise, he will be subjected to multiple punishments for the same
act due to the disciplinary action already taken by the DOC. See Appellant’s
Amended Brief at 15. Pursuant to the Fifth and Fourteenth Amendments to the
United States Constitution, a defendant has a constitutional right to not be put
in jeopardy twice for the same offense.1
But the United States Supreme Court
has “long recognized that the Double Jeopardy Clause does not prohibit the
imposition of all additional sanctions that could . . . be described as
punishment. The Clause protects only against the imposition of multiple
criminal punishments for the same offense[.]” Hudson v. U.S., 522 U.S. 93, 98-
99 (1997) (citations omitted).
[9] Every United States Circuit Court to consider the issue has held that “prison
discipline does not preclude a subsequent criminal prosecution or punishment
for the same acts.” Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir. 1994)
(collecting cases), cert. denied, 514 U.S. 1044 (1995). Likewise, courts of this
state have held that “[a]n administrative punishment by prison officials does not
preclude a subsequent prosecution arising out of the same act.” Williams v.
1 Brown cites Article 1, section 14 of the Indiana Constitution as well, but does not advance a separate
argument with respect to the state constitution. Any state constitutional argument is therefore waived. See
White v. State, 772 N.E.2d 408, 411 (Ind. 2002) (“Because the defendant does not argue that the search and
seizure provision in the Indiana Constitution requires a different analysis than the federal Fourth
Amendment, his state constitutional claim is waived, and we consider only the federal claim.”).Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 6 of 12
State, 493 N.E.2d 431, 432 (Ind. 1986); State v. Mullins, 647 N.E.2d 676, 678
(Ind. Ct. App. 1995). As explained in Lyons v. State:
The [DOC] is authorized to administratively punish acts done
within the prison walls by imposing disciplinary sanctions. The
[DOC] may not, however, lengthen a convict’s term in the
prison. The [DOC] functions to insure [sic] peace and order
inside the prison. On the other hand, the State is required to
insure [sic] the safety and well-being of those outside the prison
walls and has been authorized by statute to punish those who
attempt [or commit a crime] by extending the length of their
term.
475 N.E.2d 719, 723 (Ind. Ct. App. 1985), trans. denied.
[10] Nonetheless, Brown argues that the deprivation of good time credit and
placement in restrictive housing are sanctions that are so punitive in nature they
constitute a jeopardy. Brown relies heavily on the United States Supreme
Court’s decision in United States v. Halper, in which the Court applied the
Double Jeopardy Clause to a sanction without first determining that it was
criminal in nature, instead focusing on the proportionality of the sanction. 490
U.S. 435, 448-49 (1989) (holding that “a civil as well as a criminal sanction
constitutes punishment when the sanction as applied in the individual case
serves the goals of punishment”). Halper raised the question of whether prison
disciplinary sanctions “might ever be considered sufficiently excessive to
constitute criminal punishment for double jeopardy purposes.” U.S. v. Mayes,
158 F.3d 1215, 1220 (11th Cir. 1998), cert. denied, 525 U.S. 1185 (1999). But
circuit courts distinguished Halper in this context and continued to reject Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 7 of 12
prisoners’ double jeopardy challenges. Id. (collecting cases). And the Supreme
Court subsequently disavowed Halper due to its “ill considered” and
“unworkable” “deviation from longstanding double jeopardy principles[.]”
Hudson, 522 U.S. at 95, 101. Instead, Hudson reaffirmed the previously
established rule requiring the court to first ask whether the legislature indicated
a preference that a particular sanction be civil or criminal and, in cases where
the intent was to establish a civil penalty, to then consider whether the statutory
scheme is so punitive either in purpose or effect as to transform what was
intended as a civil penalty into a criminal penalty. Id. at 95 (citing United States
v. Ward, 448 U.S. 242, 248-49 (1980)). We will consider Brown’s arguments in
this context.
[11] As for the legislative intent, we look to Indiana Code chapter 11-11-5, which
addresses conduct and discipline within the DOC. The chapter authorizes
DOC to “adopt rules for the maintenance of order and discipline among
committed persons.” Ind. Code § 11-11-5-2. The chapter also clearly
contemplates the possibility that violations of the conduct code could result in
criminal prosecution, as it includes a provision regarding the admissibility in
court of statements made by the prisoner during the course of a disciplinary
investigation. Ind. Code § 11-11-5-5(d). Given the non-punitive purpose
(“maintenance of order”) of the disciplinary provisions, the clear
acknowledgement that criminal prosecution could follow, and the delegation of
disciplinary authority to an administrative agency, the statutory scheme
indicates a preference that the sanctions be considered civil. Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 8 of 12
[12] We turn, then, to whether the authorized civil sanctions for violations of prison
conduct rules are so punitive as to be transformed into criminal punishment.
A. Deprivation of Credit Time
[13] The DOC’s authority to maintain order and discipline includes the authority to
administratively punish conduct within the prison by imposing disciplinary
sanctions. Lyons, 475 N.E.2d at 723. The range of disciplinary actions DOC is
authorized to take includes as little as a report to be made part of the person’s
record or extra work to segregation from the general population for a fixed
period of time and deprivation of good time credit. Ind. Code § 11-11-5-3.
[14] However, the DOC may not lengthen a prisoner’s term in prison. Mullins, 647
N.E.2d at 678. In Mullins, the defendant argued that the DOC prolonged her
incarceration by thirty days when it took administrative action to deprive her of
thirty days of credit time and thus violated a fundamental liberty interest. We
disagreed, noting that the receipt of credit time is conditional upon the
continued good behavior of the prisoner and may be revoked. Id. (citing Ind.
Code ch. 35-50-6). Credit time does not diminish a prisoner’s fixed term or
affect the date on which she will be discharged from her sentence; it only affects
the date of release from prison. Id. (citing Boyd v. Broglin, 519 N.E.2d 541, 542
(Ind. 1988)).2
The deprivation of credit time therefore did not and could not
2 The State argues that the credit time deprivation “either [has] no impact on or merely delay’s [sic]
[Brown’s] earliest possible release date[.]” Brief of Appellee at 9. Saying the credit time deprivation has “no”
impact on Brown’s earliest possible release date is clearly incorrect, especially since his particular conduct Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 9 of 12
lengthen the fixed term of her sentence and did not rise to the level of impinging
on a fundamental liberty interest. Id.
[15] Brown contends that we should reconsider applying the holding in Mullins to
him given that current DOC policies prohibit inmates found to have committed
certain violations, including the A-102 violation Brown committed, from
having their credit time restored. Indiana Code section 35-50-6-5(c) provides
that “[a]ny part of the . . . good time credit of which a person is deprived [for a
violation of one or more DOC rules] may be restored.” (Emphasis added.)
Therefore, the restoration of credit time is permissive, not mandatory.
Accordingly, the DOC Manual of Policies and Procedures provides a procedure
for restoration of earned credit time that was deprived as a result of disciplinary
action, but with the caveat that “[n]o offender is entitled to the restoration of
deprived earned credit time” unless he or she meets the criteria described
therein. Appellant’s App., Vol. II at 54-61. Brown argues that the loss of good
time credit that cannot be restored “extends an inmate’s sentence in the DOC”
and is therefore punitive in effect, Appellant’s Amended Br. at 16; but as
discussed above, supra ¶ 14, although loss of credit time may extend a
defendant’s time in the DOC, it does not extend his sentence. Brown argued in
the trial court that the DOC policy about eligibility for restoration of credit time
has changed since Mullins was decided, but he provides no evidence of that,
violation precludes him from having that credit time restored, but the State is correct that it merely delays his
release date.Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 10 of 12
only pointing out that the current DOC Manual of Policies and Procedures
became effective in 2015 without introducing any earlier manuals for
comparison. Moreover, there is no indication in Mullins that the decision that
the deprivation of credit time was not a punishment was based on the
defendant’s ability to have it restored in the future. See generally 647 N.E.2d at
678. Brown has not convinced us that the rule announced in Mullins should not
apply here.
[16] An inmate does not have a constitutional right to credit time, Brown v. State, 947
N.E.2d 486, 492 (Ind. Ct. App. 2011), trans. denied; rather, credit time “is a
bonus created by statute and the deprivation of credit time does nothing more
than take that bonus away[,]” Mullins, 647 N.E.2d at 678. Therefore, in the
terms used in Ward, deprivation of credit time is not so punitive either in
purpose or effect that it constitutes a criminal penalty that would subject a
person to double jeopardy. 448 U.S. at 249.
B. Restrictive Housing
[17] Brown also argues that his 360-day confinement in the restrictive housing unit
is punitive in nature because it was psychologically and physiologically
detrimental to him. He testified that the conditions of his confinement did not
comply with the conditions stated in the Manual of Policy and Procedures and
that he had suicidal thoughts during his time in restrictive housing. He
contends that the “intent of such a sanction is clearly to punish an inmate for
behavior that violated DOC policies.” Appellant’s Amended Br. at 16. Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 11 of 12
[18] All disciplinary actions are to some extent intended to punish an inmate for
violating DOC rules. And some disciplinary actions are more severe than
others. As acknowledged in Lyons, that is how DOC ensures peace and order
within its facilities. 475 N.E.2d at 723; see also Mayes, 158 F.3d at 1224 (noting
that in this context, “a prison’s remedial and punitive interests are inextricably
related”). But the question when considering a double jeopardy claim is not
whether the discipline is punitive, but whether it is so punitive as to essentially
be a criminal punishment. See Hudson, 522 U.S. at 95.
[19] In Williams, the defendant escaped from the county jail and was both placed in
administrative segregation in the jail for thirty-one days and prosecuted for
escape. 493 N.E.2d at 432. He argued in a petition for post-conviction relief
that by being administratively punished with confinement in segregated housing
and being charged with escape, he was punished twice for the same offense.
Our supreme court disagreed and held the trial court correctly concluded the
defendant was not subjected to double jeopardy. Id. Thus, our supreme court
applied the general rule that an administrative punishment does not preclude
subsequent prosecution to discipline by placement in segregated housing.
Although the defendant in Williams was only so confined for thirty-one days as
opposed to Brown’s 360-day confinement, Brown does not argue that the length
of his confinement made it punitive, only that the fact of his confinement was
punitive. Williams held otherwise. See also Garrity, 41 F.3d at 1152 (“Changes
in the conditions of incarceration, such as [defendant’s] placement in Court of Appeals of Indiana | Opinion 20A-CR-2261 | June 24, 2021 Page 12 of 12
segregation . . ., do not constitute a second punishment for the original
offense.”)
Outcome: The disciplinary action taken by the DOC against Brown for his conduct
violation does not preclude the State’s criminal prosecution of him for the same
act. Accordingly, the trial court correctly denied Brown’s motion to dismiss the
criminal charge against him on double jeopardy grounds.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
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