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Indiana Supreme Court: Man Sentenced to LWOP in 1970s Not Eligible For Parole
Posted in Litigation

In State v. Hernandez, the Indiana Supreme Court considered whether a man serving two life sentences for crimes committed in 1975 was eligible for parole.  The Court concluded he was not.

In 1975, Hernandez and others robbed a married couple and the married couple was killed in the process.  A jury found Hernandez guilty of two counts of “murder in the perpetration of a robbery” and “murder in the first degree.”  He was sentenced to two terms of life in prison.  Hernandez filed two post conviction relief petitions. 

On his first Petition, Hernandez claimed he was sentenced improperly.  The Supreme Court found this challenge was untimely because Hernandez could have raised this allegation on direct appeal but did not.  Thus, Hernandez was foreclosed from raising that claim in the post-conviction proceeding, affirming the trial court. 

In his second Petition, Hernandez challenged the Parole Board’s ex post facto use of Ind. Code 11-13-3-2(b)(3) because that section was not enacted until 1979, after his crimes were committed.  Ind. Code 11-13-3-2(b)(3) states, “A person sentenced upon conviction of more than one (1) felony to more than one (1) term of life imprisonment is not eligible for consideration for release on parole.” 

The Court found that “construing the statutory scheme in 1975 to provide parole eligibility to persons serving multiple life sentences would not be consistent with the fact that in 1979, the Legislature provided parole eligibility to those serving ‘a’ life sentence, while specifically denying the possibility of parole to anyone serving more than one life sentence.”  The Court continued, “The fact that this Court has held on several occasions that a life sentence is ‘neither determinate nor indeterminate’ in the context of eligibility for good time credit leads us to the conclusion that the same rule should apply as to eligibility for consideration for parole.” Thus, the Court held that “under the law as it existed in 1975, a person under a life sentence was not eligible to be considered for parole.”

In the course of this analysis, the Court revisited its findings in Johnston v. Dobeski, 739 N.E.2d 121 (Ind. 2000).  The Court observed that it stated in Johnston that life sentences were “indeterminate,” and “it was not inappropriate for the prisoner and the county prosecutor in Johnston to compromise the post-conviction litigation” to convert the life sentences to a fixed-year executed sentence.  Now the Court found that in Johnston it incorrectly referred to a life sentence as “indeterminate” and “it is now clear that a person serving a life sentence imposed at the time of the crime committed by the prisoner in Johnston was not eligible for consideration for parole.”  The Court overruled Johnston to the extent it held otherwise. However, the Court reaffirmed its holding in Johnston that the agreement between the prisoner and the county prosecutor was valid.  Thus, the Court held that Hernandez was not eligible to seek parole but he could seek clemency.  “Should he be successful in having his sentences commuted to a term of years, he would then be eligible to seek parole.”

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