Robb, J.
Charles Gross was arrested on February 28, 2003, on charges of child molesting, a Class B felony, and dissemination of matter harmful to a minor, a Class D felony. He has never been tried on these charges, however, as he was found to be incompetent and has been either incarcerated in Johnson County or confined by the State Division of Mental Health and Addiction (“DMHA”) since his arrest. In August 2014, Gross filed a motion to dismiss the charges against him and a request for release from custody because he had been confined for a period of time equivalent to the maximum sentence [23 years, or 11 years and 182 days with Class I credit time] he could have to serve if convicted. The trial court denied his motion, finding Gross was subject to the credit restricted felon statute and therefore had not yet been confined for the maximum time allowed by law.
Gross appeals the trial court’s denial of his motion to dismiss the charges pending against him and release him from custody. He raises two issues: 1) whether the trial court erred in finding he was subject to the credit restricted felon statute; and 2) whether the trial court abused its discretion in denying his motion because due process requires the charges to be dismissed. The State concedes that Gross is not subject to the credit restricted felon statute and has been confined for the maximum time allowed by law but argues the charges should not be dismissed. We conclude the parties are correct that Gross is not subject to the credit restricted felon statute and has therefore been confined for the equivalent of the maximum sentence he could have been ordered to serve. In addition, because there has been a finding [by DMHA] that it is unlikely Gross will ever be restored to competency, it is a violation of due process for the underlying criminal charges to continue to pend against him. The trial court abused its discretion in denying Gross’s motion to dismiss, and we therefore reverse.
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Reversed.
May, J., concurs.
Mathias, J., concurs in result with opinion.
Mathias, Judge, concurring.
I concur wholeheartedly in Judge Robb’s well-reasoned opinion. I write separately for two reasons.
First, I wish to emphasize that there is little reason to believe that dismissal of the criminal charges against Gross will lead to his release into society. Instead, Gross mostly likely faces a lifetime of civil commitment as a result of his mental illness. See supra, slip op. at 14 n.5.
Secondly, I wish to repeat what I wrote in concurring in Habibzadah v. State, 904 N.E.2d 367, 370 (Ind. Ct. App. 2009):
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I continue to believe that our criminal procedure should permit a psychiatric examination of a defendant who likely suffers from serious mental illness very early after arrest to determine whether the defendant could have possibly had the requisite scienter or mens rea at the time of the crime. …
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With the additions of these observations, I fully concur.