SOUTH BEND -- When Tracy Hertel walked out of the courtroom on March 31, 2008, he had just learned he was going away to prison.
He thought he knew for how long.
He was wrong.
After a four-day trial two months prior, a jury had convicted him on two Class B felonies of dealing in a Schedule II controlled substance; two counts of possession of two or more chemical reagents or precursors with intent to manufacture; possession of a Schedule IV controlled substance; possession of marijuana; and possession of hashish.
St. Joseph Superior Judge Jerome Frese had given him a 20-year sentence but suspended all 20 years and ordered him to serve 20 years of probation. What came next from the judge's mouth that day initially confused Hertel and would later confuse state prison officials, Hertel says.
The Indiana Department of Correction's inability to understand the sentence ultimately would land him in maximum security confinement, alongside some of Indiana's most violent criminals, he said.
'The Frese Special'
Frese ordered Hertel, 50, to serve an unspecified number of those 20 suspended years in prison "as a condition of probation."
In other cases, Frese has called such a sentence "The Frese Special." Frese declined to be interviewed for this story, but in other cases, the judge has said ordering prison as a condition of probation allows him more control over an inmate's rehabilitation.
Under Indiana statute, up until one year after sentencing, a judge has discretion over whether to grant post-conviction petitions for sentence modifications. After a year, the judge still has that discretion, but the prosecutor must agree that a sentence modification request deserves a hearing in order for it to even reach the judge.
But a judge does not need a prosecutor's consent to change terms of probation.
"It seems like a way of extending the judge's ability to determine the offender's length of sentence," said Ryan Scott, associate professor at the Maurer School of Law at Indiana University Bloomington. "He's on rock-solid legal ground."
Scott and other legal experts said they know of no other judge in the state who orders such sentences, but they are allowed by Indiana statute.
Indiana appellate courts also have affirmed the legality of "The Frese Special."
Larry Landis, executive director of the Indiana Public Defenders Council, said he thinks it could have some value in giving an offender an incentive to behave in prison and do things to better himself while there.
"A lot of judges would just give a guy 20 years executed, so compared to an executed sentence, this gives a person an incentive toward rehabilitation ... they can see a future. But if they have a 20-year sentence and they have to do 10 (with day-for-day good time credit), it's pretty easy just to sit there and mope and do nothing, do dead time."
But Landis also sees negatives.
"The downside is there is probably no set criteria on what you have to do to get out of this limbo ... such as get your GED or receive substance abuse counseling ... then it could be cruel to say, 'I might modify your sentence but I'm not going to tell you what you have to do for me to modify' ... it gets a little arbitrary."
It's that subjectivity and judicial discretion that Hertel says has kept him behind bars longer than Frese said he would be there.
At his sentencing, Frese told Hertel, "If you earn your way out by applying yourself," he would consider releasing him "very quickly, relatively speaking ... in a year or two years," according to a transcript of the hearing.
But just two months shy of three years later, Hertel remains in prison. In fact, his freedom has become more restricted.
In February 2010, the Department of Correction moved him from a low-security dorm setting at Westville Correctional Facility to the high-security Miami Correctional Facility prison cell, where he remains.
In March 2009, while Hertel was at Westville, three prisoners with lengthy sentences escaped from the Branchville Correctional Facility in Tell City. In the wake of the escape, the DOC instituted a new policy prohibiting inmates with sentences longer than eight years from being housed in low-security prisons.
The DOC then read Hertel's 20-year suspended sentence as an executed sentence, basing his earliest possible release date on a 20-year term, and moved him to the Miami prison.
Hertel, with no prior criminal record before his convictions in the drug case, says Frese must know he does not belong in maximum security because the judge took the unusual step of letting someone convicted of Class B felonies to remain free over the two months between his sentencing and when he self-reported to the DOC to begin serving his sentence.
"Why am I a maximum-security prisoner when I was a low-risk probationer?" Hertel said in a recent Tribune interview from prison.
DOC spokesman Doug Garrison declined to comment on Hertel's claim that Frese's sentencing schemes confuse prison officials. But Garrison said Hertel was appropriately placed in both Westville and Miami because his sentencing records indicate he received a 20-year executed sentence.
Lots of filings
Hertel, with a clean prison conduct record and glowing reviews from prison staff, attributes his continued imprisonment to one thing: his frequent post-conviction appeals, requests for copies of court records, and petitions for sentence modifications.
He has worked in the prison law library for much of his incarceration and is the senior clerk among inmates.
"Tracy Hertel is an outstanding employee," a DOC staff evaluator said in his most recent review report prepared for Frese's court in October. "He is always willing to go the extra mile to help the clients, co-workers or staff. He is well knowledgeable in his job responsibilities and assists others to become more knowledgeable. He also trains the new (inmate) employees with his expertise."
Hertel acknowledges that he has filed a lot of documents with the courts, but he notes it is his constitutional right to do so.
He has sharpened his legal acumen partly out of necessity.
Although he has no formal legal training, he represents himself in his court filings, having had all three of his court-appointed public defenders removed from his case because he argued that they were ineffective. His first public defender, Tony Zirkle, withdrew from the case after Hertel's complaints, and was later disbarred for unrelated reasons.
Landis, with the Indiana Public Defenders Council, said he thinks it is within a judge's discretion to view such a heavy volume of court filings as a sign that a convicted defendant is not remorseful, and thus has not been rehabilitated.
But such a view typically should be limited to someone who has pleaded guilty, Landis said. Hertel fought his charges through to a jury trial and today maintains his innocence.
Hertel says the chemicals that police found in his home and a storage facility had nothing to do with making methamphetamines, but instead were part of his business of selling specialty chemicals on eBay.
Landis said he has no idea whether Hertel was guilty. Still, he called such a scenario a "Catch-22."
"If I really am innocent and I've suffered a terrible injustice by being convicted of something I didn't do ... you expect me to fake remorse so you'll show me mercy? That's fairly cruel."
One of Hertel's latest legal filings may delay his release even further. In February, he sued Frese in U.S. District Court, alleging the judge has blocked his access to the courts by failing to respond to his court filings from prison.
As a result of the lawsuit, Frese last week recused himself from Hertel's case, as is typically expected of a judge who is sued by a defendant. That means St. Joseph County Chief Superior Judge Michael Scopelitis must appoint a new judge to hear Hertel's latest request for a sentence modification.
Scopelitis told The Tribune Friday that he is in the process of transferring the case to Judge John Marnocha.
One judge Scopelitis couldn't give it to was Roland W. Chamblee Jr. Chamblee initially had Hertel's case but recused himself in May 2005.
Chamblee's reason for the recusal was unclear Friday. It was noted on the case's docket sheet, but the file contains no written order referencing the recusal.
The potential delay comes as Frese had recently directed a county community corrections official to evaluate him for potential placement in a program, possibly work release.
Robert F. Booker, reception/diagnostic case manager with the county's community corrections program, visited Hertel in prison Feb. 17, according to a letter from Booker to Frese that was entered into the court file Thursday.
Booker wrote that Hertel was cooperative during the interview, and his prison record is "outstanding," but the program "respectfully declines to supervise him through programming at this time."
Booker gives no reason for his position in the letter. He could not be reached for comment Friday.
Hertel's case fills two bulging accordion files in the county clerk's office. The Tribune asked him whether he has regrets about so litigiously fighting his conviction and continued incarceration.
"Absolutely not," he said without hesitating. "When a judge is dishonest in his dealings with criminal defendants, it diminishes the integrity of his office and of all judges."
He said his ability to earn a decent living after prison is more important than getting out earlier.
With felonies on his record, "What do I have to trade on? They took away a budding eBay chemistry business that was second to none. What about my reputation?"
Staff writer Jeff Parrott: