VAIDIK, Judge.
Earl Budd appeals the post-conviction court's denial of his successive petition for post-conviction relief. He challenges Indiana Code section 35-50-6-3.3(h)(2)(B), which provides that educational credit time is subtracted from the period of imprisonment
The facts in this case are not in dispute. In 1984, Budd was convicted by a jury of Class A felony attempted murder and Class A felony criminal deviate conduct. The trial court sentenced Budd to two consecutive fifty-year terms. Our Supreme Court affirmed his convictions and sentence in Budd v. State, 499 N.E.2d 1116 (Ind.1986). In a 1993 post-conviction action, Budd's sentence was modified to concurrent fifty-year terms.
In 1998, Budd received one year of credit time for completing an associate's degree. At the time, Indiana Code section 35-50-6-3.3 provided that educational credit time was "subtracted from the period of imprisonment imposed on the person by the sentencing court." Ind.Code § 35-50-6-3.3(c) (1998) (emphasis added). Budd's one year of credit time was subtracted from his fifty-year sentence and adjusted his projected release date by six months, from September 14, 2008, to March 16, 2008.
In 1999, Section 35-50-6-3.3 was amended to provide that educational credit time was "subtracted from the release date that would otherwise apply to the person after subtracting all other credit time earned by the person." Ind.Code § 35-50-6-3.3(e) (Supp.1999) (emphasis added).
However, subsection (h) provided that this change applied only to people who completed at least a portion of the degree or program requirements after June 30, 1999. For those who completed a degree before July 1, 1999, the effective date of the amendment, educational credit time was still subtracted from the period of imprisonment. Because Budd completed his associate's degree in 1998, his credit time was still subtracted from the period of imprisonment and his projected release date remained the same.
Subsection (h) was amended in 2003. It provided in pertinent part:
Ind.Code § 35-50-6-3.3(h) (Supp.2003). Budd completed his associate's degree in 1998 and was convicted of criminal deviate conduct. Thus, his credit time was still subtracted from the period of imprisonment and his projected release date remained the same.
In 2009, Budd, pro se, sought permission to file a successive petition for post-conviction relief. Although this Court initially denied permission, we ultimately granted permission after Budd filed a petition for rehearing. In a brief in support of his successive petition for post-conviction relief,
Budd, pro se, now appeals.
Budd contends that the post-conviction court erred by denying his successive petition for post-conviction relief. In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).
Budd specifically contends that the post-conviction court erred by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a bill of attainder, an ex post facto law, and a denial of equal protection under the United States and Indiana Constitutions. As a consequence, he argues, his educational credit time was subtracted from the period of imprisonment imposed by the sentencing court instead of his release date, which resulted in a later release date than that to which he was entitled.
As an initial matter, we observe that Budd's brief, which was filed December 1, 2009, states that he "is scheduled now to be released on December 9, 2009."
Before doing so, however, we also note that Budd frames all of his arguments as alleged constitutional violations resulting in a denial of "ameliorative redirection" of his educational credit time. See Appellant's Br. p. 21, 23, 26. The doctrine of amelioration provides that 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. Lunsford v. State, 640 N.E.2d 59, 60 (Ind.Ct.App. 1994). 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. Cotton v. Ellsworth, 788 N.E.2d 867, 871 (Ind.Ct.App.2003). To determine whether the doctrine of amelioration should apply, we must examine the legislature's intent. Lunsford, 640 N.E.2d at 60. Here, the legislature has specifically categorized those people who completed degrees before July 1, 1999, and have been convicted of certain specified offenses and provides that their educational credit time is to be subtracted from the period of imprisonment imposed by the sentencing court. Because the legislature's intent is clear, the doctrine of amelioration does not apply.
Budd first contends that the post-conviction court erred by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a bill of attainder under the United States and Indiana Constitutions. Although Budd cites both the United States and Indiana Constitutions, he does not present any claim or argument that the Indiana Constitution requires a different analysis or yields a different result than that produced under the United States Constitution. Where a party cites Indiana constitutional authority but presents no separate argument specifically treating and analyzing a claim under the Indiana Constitution distinct from its federal counterpart, we resolve the party's claim on the basis of federal constitutional doctrine and express no opinion as to what, if any, differences there may be under the Indiana Constitution. Myers v. State, 839 N.E.2d 1154, 1158 (Ind.2005). We thus address Budd's bill of attainder claim in light of federal, not state, constitutional law.
A bill of attainder is a legislative act that inflicts punishment on named individuals or members of an easily ascertainable group without a judicial trial. $100 v. State, 822 N.E.2d 1001, 1012 (Ind.Ct. App.2005) (quoting United States v. O'Brien, 391 U.S. 367, 383 n. 30, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)), trans denied. A bill of attainder essentially consists of a substitution of a legislative for a judicial determination of guilt. Id. To determine whether a particular statute is a bill of attainder, we examine whether the three definitional elements are contained in the statute: (1) specificity in identification, (2) punishment, and (3) lack of a judicial trial. Id. (quoting O'Brien, 391 U.S. at 383 n. 30, 88 S.Ct. 1673).
Nonetheless, Budd argues that subsection (h)(2)(B) effectively extends his release date. Appellant's Br. p. 17, 19. We disagree. Before the 2003 amendment, Budd's discharge date was March 16, 2008. Appellant's App. p. 43. After the 2003 amendment, Budd's discharge date remained March 16, 2008. Id. at 42. We determine that subsection (h) does not extend Budd's release date.
We thus conclude that the post-conviction court did not err by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a bill of attainder under the United States Constitution.
Budd next contends that the post-conviction court erred by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute an ex post facto law under the United States and Indiana Constitutions. On appeal, Budd cites both constitutions but provides only one analysis. Our Supreme Court has recently held that an independent analysis should be applied to an ex post facto claim under the Indiana Constitution because although the same test is used, the outcome may be different. Wallace v. State, 905 N.E.2d 371, 377-78 (Ind. 2009), reh'g denied. Because Budd does not present a separate analysis under the Indiana Constitution, we address his ex post facto claim under only the federal constitution. See Myers, 839 N.E.2d at 1158.
An ex post facto law applies retroactively to disadvantage an offender's substantial rights. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Collins v. State, 911 N.E.2d 700, 712 (Ind.Ct.App.2009), trans. denied. To determine whether a particular statute is an ex post facto law, we examine whether the change increases the penalty by which a crime is punishable or alters the definition of criminal conduct. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Collins, 911 N.E.2d at 712.
Budd argues that Section 35-50-6-3.3(h)(2)(B) "reaches back and attaches new legal consequences to Budd's 1983 crime of . . . criminal deviate conduct by using that crime to deprive him of any opportunity to achieve an earlier release or an earlier discharge from parole." Appellant's Br. p. 23.
Budd's ex post facto argument fails. Although he argues that Section 35-50-6-3.3(h)(2)(B) deprives him of an opportunity to have his educational credit time subtracted from his release date as opposed to the period of imprisonment imposed by the sentencing court, this is an opportunity that he never had. There was no educational credit time statute at the time Budd committed criminal deviate conduct in 1983. Section 35-50-6-3.3 was not added until 1993, and at that time it was silent as to the method of computation to be applied upon completion of a degree. See Ind.Code § 35-50-6-3.3 (1993); Renfroe v. State, 743 N.E.2d 299, 300 (Ind.Ct.App.
Section 35-50-6-3.3(h)(2)(B) thus does not increase the penalty by which criminal deviate conduct is punishable or alter the definition of criminal deviate conduct. The post-conviction court did not err by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute an ex post facto law under the United States Constitution.
Budd finally contends that the post-conviction court erred by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a denial of equal protection under the United States and Indiana Constitutions. Our Supreme Court has stated that the analysis under the Equal Privileges Clause in the Indiana Constitution is independent from the analysis under the Fourteenth Amendment's Equal Protection Clause in the United States Constitution. Collins v. Day, 644 N.E.2d 72, 75 (Ind.1994) ("We conclude that there is no settled body of Indiana law that compels application of a federal equal protection analytical methodology to claims alleging special privileges or immunities under Indiana Section 23 and that Section 23 should be given independent interpretation and application."); see also Bennett v. State, 801 N.E.2d 170, 177 (Ind.Ct.App. 2003). Because Budd does not present a separate analysis under the Indiana Constitution, we address his equal protection claim under only the federal constitution. See Myers, 839 N.E.2d at 1158.
The Equal Protection Clause of the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The initial inquiry for federal equal protection analysis concerns the applicable level of scrutiny. Bennett, 801 N.E.2d at 175. Absent a burden upon the exercise of a fundamental right or creation of a suspect class, the general standard of review is the rational basis test. See id.
Budd alleges no creation of a suspect class. Further, a prisoner has no constitutional right to receive credit time; therefore, a rational basis test is used to assess the constitutionality of the statute. Poling v. State, 740 N.E.2d 872, 885 (Ind. Ct.App.2000), overruled on other grounds by Graves v. State, 823 N.E.2d 1193 (Ind. 2005). Under a rational basis test, the question is whether the distinction between inmates rationally furthers some legitimate, articulate state purpose. Id. (citing McGinnis v. Royster, 410 U.S. 263, 269-70, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973)). Budd can only satisfy this standard by showing that no set of facts reasonably may be conceived to justify the disputed classification. See United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998). The rational basis test is thus a highly deferential standard of review:
Id. (quotation and citation omitted).
Budd states:
Appellant's Br. p. 25. We construe Budd's argument as conceding that there is a rational basis, namely, the high risk of recidivism, to treat sex offenders differently from non-sex offenders. Indeed, as the United States Supreme Court has stated, "Sex offenders are a serious threat in this Nation. . . . When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." McKune v. Lile, 536 U.S. 24, 32-33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002).
Instead, Budd appears to assert that Section 35-50-6-3.3(h)(2)(B) denies him equal protection because it treats a person who has been convicted of criminal deviate conduct and who has completed a degree before July 1, 1999, differently from a person who has been convicted of criminal deviate conduct and who has completed a degree after June 30, 1999.
We note that during the pendency of this appeal and after the parties completed briefing, Section 35-50-6-3.3 was amended by adding subsection (m), which provides:
A person may not earn credit time under this section if the person:
When Budd received one year of educational credit time for completing his associate's degree in 1998, Section 35-50-6-3.3 provided that educational credit time, for all inmates, was subtracted from the period of imprisonment imposed by the sentencing court. In 1999, the statute was amended so that the educational credit time of a person who completed a degree after June 30, 1999, was subtracted from the release date. Educational credit time of a person who completed a degree before July 1, 1999, the effective date of the amendment, would still be subtracted from the period of imprisonment imposed by the sentencing court. The general rule is that unless there are strong and compelling reasons, statutes will normally be applied prospectively. Martin v. State, 774 N.E.2d 43, 44 (Ind.2002). We thus conclude that it is rational to apply the 1999 amendment to Section 35-50-6-3.3 prospectively.
In 2003, the statute was again amended to provide that for those who completed a degree before July 1, 1999, and had not been convicted of a sex offense specified in subsection (h)(2), educational credit time was subtracted from the release date. However, for those completing a degree before July 1, 1999, but who had been convicted of one of the specified sex offenses, including criminal deviate conduct, educational credit time was still subtracted from the period of imprisonment imposed by the sentencing court. Regarding inmates, including sex offenders, completing degrees after June 30, 1999, educational credit time was still subtracted from the release date. That no changes were made to the category of inmates completing degrees after June 30, 1999, is constitutionally valid because it is rational to maintain rights already given—here, the benefit of subtracting educational credit time to the
The post-conviction court did not err by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a denial of equal protection under the United States Constitution.
Affirmed.
NAJAM, J., and BROWN, J., concur.