“probation relates to judicial action taken before the prison door is closed, whereas parole relates to executive action taken after the door has closed on a convict”
How later courts described this case
- “probation relates to judicial action taken before the prison door is closed, whereas parole relates to executive action taken after the door has closed on a convict”
- holding that by “turning over” the defendant to serve his sentences for a second set of convictions, the parole board effectively discharged him from the sentences for his first set of convictions
- an offender may be on parole for one offense while serving a consecutive sentence
- holding that applying the Act to the defendant, who was charged, convicted, and served his sentence prior to the Act being enacted, violated the prohibition on ex post facto laws
Written by the judges who cited it.
The opinion
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ERIC M. KYNER GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE Jul 16 2013, 9:03 am
COURT OF APPEALS OF INDIANA
ERIC M. KYNER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-PC-124
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc Rothenberg, Judge
Cause No. 49G02-0605-PC-086248
July 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Eric M. Kyner, pro se, appeals the post-conviction court’s denial of his petition
for post-conviction relief. He raises several issues, which we consolidate and restate as
follows: 1) whether the post-conviction court erred in concluding that Kyner was
properly designated as a sexually violent predator, and 2) whether the post-conviction
court erred in concluding that he was properly placed on parole. Finding no error, we
affirm.
Facts and Procedural History
In 2006, Kyner was charged with burglary, a Class A felony; rape, a Class B
felony; criminal confinement, a Class D felony; and battery, a Class A misdemeanor.
Pursuant to a plea agreement, Kyner agreed to plead guilty to the rape and criminal
confinement charges. In exchange, the State agreed to dismiss the burglary and battery
charges, and recommend that Kyner be sentenced to twelve years imprisonment executed
in the Indiana Department of Correction for the rape conviction, to be served
consecutively to three years imprisonment suspended to sex offender probation for the
criminal confinement conviction. The plea agreement also specified that Kyner would
register as a sex offender. The trial court accepted the agreement and Kyner was
sentenced accordingly.
Kyner was paroled on May 10, 2010. On August 2, 2011, the trial court ordered
that Kyner be supervised by probation while completing his parole obligation. On
August 23, 2011, Kyner was given notice of a probation violation. On September 9,
2011, the trial court held a hearing and discharged Kyner from probation. On December
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20, 2011, the parole board found Kyner guilty of a parole violation and revoked his
parole.
On January 17, 2012, Kyner filed, pro se, a petition for post-conviction relief,
alleging that he was improperly placed on parole and that he was not informed at the time
of his sentencing that he would be required to register as a sexually violent predator for
the rest of his life. The post-conviction court held a hearing on the petition on July 18,
2012. After giving the Attorney General’s office an opportunity to respond to the
petition, the court issued findings of fact and conclusions of law denying Kyner’s petition
on January 8, 2013. Kyner now appeals. Additional facts will be provided as necessary.
Discussion and Decision
I. Standard of Review
Under the rules of post-conviction relief, the petitioner must establish the grounds
for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Johnson
v. State, 832 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied. To succeed on appeal
from the denial of relief, the post-conviction petitioner must show that the evidence is
without conflict and leads unerringly and unmistakably to a conclusion opposite the one
reached by the post-conviction court. Johnson, 832 N.E.2d at 991. The post-conviction
court is the sole judge of the weight of the evidence and the credibility of the witnesses.
Id.
In addition, the post-conviction court in this case made findings of fact and
conclusions of law pursuant to Indiana Post-Conviction Rule 1, § 6. We accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but accord
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conclusions of law no deference. Johnson, 832 N.E.2d at 992. “A post-conviction
court’s findings and judgment will be reversed only upon a showing of clear error—that
which leaves us with a definite and firm conviction that a mistake has been made.” Id.
(quotation and citation omitted).
II. Designation as a Sexually Violent Predator
The Indiana Sex Offender Registration Act (“the Act”) was amended in 2007 to
define a person who has committed one of a number of qualifying offenses, including
rape, a sexually violent predator by operation of law if the person was released from
incarceration, secure detention, or probation for the offense after June 30, 1994. 1 Ind.
Code § 35-38-1-7.5(b). A sexually violent predator is subject to a lifetime registration
requirement. Ind. Code § 11-8-8-19(b). Kyner was convicted of rape and was released
from incarceration after June 30, 1994, and thus, under the 2007 Amendment, is a
sexually violent predator by operation of law. Kyner appears to argue that applying the
statute to him constitutes a violation of the constitutional prohibition on ex post facto
laws. He claims that his designation as a sexually violent predator is punitive in nature
and is improper in light of the fact that at his sentencing in 2006, the Act only required
him to register as a sex offender for ten years.
Kyner’s arguments were rejected by our supreme court in Lemmon v. Harris, 949
N.E.2d 803 (Ind. 2011). In Lemmon, the court determined that the 2007 amendment of
the Act applied retroactively to the defendant, who was convicted of one of the qualifying
offenses in the statute and was released from incarceration after June 30, 1994. Id. at
1
Previous versions of the Act required the court to determine whether a person was a sexually violent
predator at the sentencing hearing.
4
809. The court further determined that even though the defendant had been sentenced in
1999 and was required at the time to register as a sex offender for ten years, retroactively
applying the 2007 Amendment of the Act to him was not unconstitutional because it was
nonpunitive. Id. at 813. In so doing, the court noted that the Act was in place at the time
of the defendant’s sentencing, id.; cf. Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009)
(holding that applying the Act to the defendant, who was charged, convicted, and served
his sentence prior to the Act being enacted, violated the prohibition on ex post facto
laws), and that the 2007 Amendment advanced the Act’s legitimate regulatory purpose of
public safety, Lemmon, 949 N.E.2d at 813. Moreover, the court noted that under the
2007 Amendment, the defendant could petition the court to consider whether he should
no longer be considered a sexually violent predator ten years from the date of his release
from prison. Lemmon, 949 N.E.2d at 812-13; see also Ind. Code § 35-38-1-7.5(g). Like
the defendant in Lemmon, Kyner may petition the court to consider whether he should no
longer be considered a sexually violent predator ten years from the date of his release.
His current designation as a sexually violent predator, however, is proper, and the post-
conviction court did not err in so finding.
III. Parole
In May 2006, at the time Kyner committed the underlying offenses, Indiana Code
section 35-50-6-1(d) stated: “When an offender (as defined in IC 5-2-12-4) completes
the offender’s fixed term of imprisonment, less credit time earned with respect to that
term, the offender shall be placed on parole for not more than ten (10) years.”2 Indiana
2
This section of the Indiana Code was later amended to include a lifetime parole requirement for sex
offenders, but that requirement only applies to offenses committed after June 30, 2007.
5
Code section 5-2-12-43 defined an “offender” as someone who committed any one of a
number of offenses, including rape. Thus, Kyner is subject to this ten year parole
requirement. Kyner argues that he was improperly placed on parole because he was
never informed at his sentencing of the parole consequences of his plea. Our supreme
court has held, however, that a court is “not required to advise the defendant of the parole
consequences of his plea.” Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind. 1988); see also
Jones v. State, 491 N.E.2d 542, 543 (Ind. 1986). Thus, even if Kyner was not informed
at his sentencing that he would be placed on parole after his release from prison,
subjecting him to the statutory requirement of parole was not improper nor was it a
breach of his plea agreement.
Kyner also appears to contend that when he was released from prison, he was
“turned over” to begin his sentence for his criminal confinement conviction—three years
of sex offender probation. However, as Kyner concedes, he was placed on parole upon
his release from prison in May of 2010. The parole board has the authority to discharge a
person from his parole prior to his fixed term expiring. See Ind. Code § 35-50-6-1(b); see
also Meeker v. Ind. Parole Bd., 794 N.E.2d 1105, 1109 (Ind. Ct. App. 2003) (holding that
by “turning over” the defendant to serve his sentences for a second set of convictions, the
parole board effectively discharged him from the sentences for his first set of
convictions), trans. denied. Here, however, there is no evidence that the parole board
discharged Kyner from his sentence for his rape conviction. See Parker v. State, 822
N.E.2d 285, 288 (Ind. Ct. App. 2005) (holding that the parole board properly reinstated
the balance of the defendant’s sentence when it revoked his parole because there was no
3
This section of the Indiana Code has since been repealed.
6
evidence that it had ever discharged or “turned over” his sentence). Thus, Kyner was
both on parole and on probation at the same time. See Pallett v. State, 901 N.E.2d 611,
615 n.2 (Ind. Ct. App. 2009) (an offender may be on parole for one offense while serving
a consecutive sentence), trans. denied. And when the trial court discharged Kyner from
his probation, this did not serve as a discharge from his parole from the Department of
Correction. Probation and parole, while similar, are distinct. See Harris v. State, 762
N.E.2d 163, 167 (Ind. Ct. App. 2002) (“probation relates to judicial action taken before
the prison door is closed, whereas parole relates to executive action taken after the door
has closed on a convict”) (citation and quotations omitted), trans. denied. For the
foregoing reasons, the post-conviction court did not err when it found that Kyner was
properly placed on parole.
Conclusion
Kyner has failed to demonstrate by a preponderance of the evidence that he was
entitled to post-conviction relief. The judgment of the post-conviction court is therefore
affirmed.
Affirmed.
FRIEDLANDER, J. and CRONE, J., concur.
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