Giden v. State, No. 19A-CR-2891, __ N.E.3d __ (Ind. Ct. App., June 24, 2020).

Tavitas, J.

Montel Giden appeals his two convictions for escape, as Level 6 felonies. We affirm.

Giden raises three issues, which we revise and restate as: I. Whether the escape statute violates the Proportionality Clause of Article 1, Section 16 of the Indiana Constitution. II. Whether fundamental error occurred as a result of the jury instructions. III. Whether the evidence is sufficient to sustain Giden’s conviction for escape related to the July 24, 2019 incident.

Giden argues that the escape statute violates the Proportionality Clause of the Indiana Constitution. As an initial matter, the State argues that Giden waived this argument by failing to raise it in a motion to dismiss…Accordingly, we will address Giden’s argument despite his waiver.

The Proportionality Clause mandates that “[a]ll penalties shall be proportioned to the nature of the offense.” Ind. Const. Art. 1, § 16.

Giden was convicted pursuant to Indiana Code Section 35-44.1-3-4(b), which provides: “A person who knowingly or intentionally violates a home detention order or intentionally removes an electronic monitoring device or GPS tracking device commits escape, a Level 6 felony.” Giden argues that the escape statute, which makes the violation of a home detention order a Level 6 felony, violates the Proportionality Clause because another statute, Indiana Code Section 35- 38-2.5-13, makes the unauthorized absence from home detention a Class A misdemeanor.

We have held that this statute “applies only in cases where the offender has been placed on home detention as a condition of probation.” Gordon v. State, 981 N.E.2d 1215, 1220 (Ind. Ct. App. 2013) (emphasis added); see Ind. Code § 35- 38-2.5-5. Here, however, Giden was subject to home detention as a condition of his pretrial release, not as a condition of probation. As such, Indiana Code 35-38-2.5-13 was not applicable to Giden’s offense.

According to Giden, “common sense and sound logic dictate that [Indiana Code Section 35-38-2.5-13] should apply equally to a person placed on home detention as a condition of pre-trial release in order to comport with Indiana’s Proportionality Clause.” Appellant’s Br. p. 11. Giden points out that a “presumptively innocent defendant” on home detention as a condition of pretrial release “can receive a harsher penalty” than an “already-convicted offender.” Id.

The State points out that the escape statute and the unauthorized absence from the home detention statute contain different elements. See Matthews v. State, 944 N.E.2d 29, 33 (Ind. Ct. App. 2011) (“Because the three crimes do not have identical elements, the proportionality clause of our Constitution is not offended if our legislature assigns different sentences to them.”). The State also contends that the different statutes ensure that a lower-level offense option is available to defendants on probation where the violation of a probationary term “likely means additional sanctions for a defendant, including revocation of all or part of a suspended sentence.” Appellee’s Br. p. 18.

We agree with the State that Giden has failed to overcome the strong presumption in favor of the statute’s constitutionality and has failed to make a clear showing of a constitutional infirmity. The General Assembly’s choice of sanctions is entitled to substantial deference, and the State has pointed out a reasonable explanation for the differences in sanctions between the two statutes. Under these circumstances, Giden has failed to demonstrate that the escape statute violates the Proportionality Clause.

Conclusion

Giden has failed to demonstrate that his convictions violate the Proportionality Clause or that fundamental error occurred as a result of the jury instructions. Moreover, the evidence is sufficient to sustain Giden’s conviction for escape related to the July 24, 2019 incident. We affirm.

Affirmed.

Riley, J., and Mathias, J., concur.

 

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