Charles Neal v. State of Indiana

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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

BRIAN REITZ

Deputy Attorney General

FILED

Indianapolis, Indiana

Feb 29 2012, 9:22 am

IN THE

COURT OF APPEALS OF INDIANA CLERK

of the supreme court,

court of appeals and

tax court

CHARLES NEAL, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1106-CR-262

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

Cause No. 49G05-0611-FA-212782

February 29, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE

Charles Neal appeals his classification as a sexually violent predator (“SVP”)

following his conviction for attempted child molesting as a class B felony.

We affirm.

ISSUE

Whether Neal‟s classification as a SVP under the amended version of the

sex offender registry statutes violates the ex post facto clause of the Indiana

Constitution.

FACTS

On November 6, 2006, the State charged Neal with attempted child molesting as a

class A felony and child molesting as a class C felony. On August 10, 2007, Neal

pleaded guilty to attempted child molesting as a class B felony. Pursuant to the terms of

the plea agreement, the trial court sentenced Neal to fifteen years, with five years

suspended, and three years on probation.

At some point, the Department of Correction (“the DOC”) classified Neal as a

sexually violent predator pursuant to Indiana Code section 35-38-1-7.5. In February

2011, Neal filed a Motion to Remove Sexually Violent Predator Status. At the hearing

on the motion, Neal argued that the DOC is not authorized to classify an offender as a

SVP because the classification is a retroactive punishment that overrides the lawful

sentence imposed by the trial court. The trial court denied Neal‟s motion following the

hearing.

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Neal subsequently filed a Motion to Correct Errors wherein he again argued that

the DOC lacks the authority to classify him as a SVP because the DOC‟s classification

improperly overrides the trial court‟s lawful sentence. The trial court denied Neal‟s

motion, and Neal appeals.

DECISION

Neal‟s sole argument on appeal is that his classification as a SVP under the

amended version of the sex offender registry statutes violates the ex post facto clause of

the Indiana Constitution. At the outset, we note that this is not the argument that Neal

made to the trial court at the hearings on his motions to remove the sexually violent

predator status and to correct error. Rather, at both hearings, Neal argued that the DOC

does not have the authority to classify an offender as a SVP because the classification is a

retroactive punishment that overrides the lawful sentence imposed by the trial court. This

issue was decided against Neal in Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind. 2011)

(holding that the SVP determination need not be made by a trial court at sentencing and

the DOC does not violate the separation of powers provision of the Indiana Constitution

when it classifies an offender as a SVP).

Further, a party generally waives appellate review of an issue or argument unless

the party raises that issue or argument before the trial court. Benton Cnty. Remonstrators

v. Bd. of Zoning Appeals of Benton Cnty., 905 N.E.2d 1090, 1096 (Ind. Ct. App. 2009).

This rule is based on several fundamental considerations, including getting the trial

court‟s views on the issues, giving the trial court the opportunity to correct any errors and

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obviate the need for an appeal, and a concern that all facts bearing on issues that were not

raised in the trial court may not be fully developed. See Endres v. Ind. State Police, 809

N.E.2d 320, 322 (Ind. 2004) (citing the advantages of preserving judicial resources, fully

developing the record, using the trial court‟s fact finding expertise, and assuring that a

claim is tested by the adversary process). Here, had Neal raised this issue at the two

hearings, the parties would have had an opportunity to develop a record and provide the

court with evidence. Neal cannot now raise this issue. He has waived it.

Waiver notwithstanding, we find no ex post facto violation. The ex post facto

clause of the Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

passed.” Ind. Const. art. I, § 24. In general, the ex post facto clause forbids imposing

punishment for an act that was not otherwise punishable at the time it was committed or

imposing additional punishment for an already prohibited act. Harris, 949 N.E.2d at 809.

Underlying the Ex Post Facto Clause is the desire to give people fair warning of the

conduct that will give rise to criminal penalties. Id.

We now turn to the Indiana Sex Offender Registration Act, which requires persons

convicted of certain offenses to register with local law enforcement agencies and to

disclose detailed personal information. In 1998, the term SVP first appeared in the

Indiana Code. Indiana Code section 35-38-1-7.5 was enacted to govern the process by

which an offender becomes a SVP. In 2007, Indiana Code section 35-38-1-7.5 was

amended to clarify that certain convictions qualify an offender as a SVP “by operation of

law.” The statute was also amended to disallow a person with two unrelated convictions

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for sex offenses to petition for removal of the SVP designation. Flanders v. State, 955

N.E.2d 732, 746 (Ind. Ct. App. 2011). The 2007 version of Indiana Code section 35-38-

1-7.5 is the version currently in effect. This statute provides in relevant part as follows:

(a) As used in this section, “sexually violent predator” means a

person who suffers from a mental abnormality or personality disorder that

makes the individual likely to repeatedly commit a sex offense (as defined

in IC 11-8-8-5.2). . . .

(b) A person who:

(1) being at least eighteen (18) years of age, commits an offense

described in . . . (C) IC 35-42-4-3 as a Class A or Class B

felony . . .

(2) commits a sex offense . . . while having a previous unrelated

conviction for a sex offense for which the person is required

to register as a sex or violent offender . . . .

(3) commits a sex offense . . . while having had a previous

unrelated adjudication as a delinquent child for an act that

would be a sex offense if committed by an adult, if, after

considering expert testimony, a court finds by clear and

convincing evidence that the person is likely to commit an

additional sex offense; or

(4) commits a sex offense . . . while having had a previous

unrelated adjudication as a delinquent child for an act that

would be a sex offense if committed by an adult, if the person

was required to register as a sex or violent offender under IC

11-8-8-5(b)(2);

is a sexually violent predator. Except as provided in subsection (g) or (h), a

person is a sexually violent predator by operation of law if an offense

committed by the person satisfies the conditions set forth in subdivision (1)

or (2) and the person was released from incarceration, secure detention, or

probation for the offense after June 30, 1994.

* * *

(e) If a person is not a sexually violent predator under subsection

(b), the prosecuting attorney may request the court to conduct a hearing to

determine whether the person . . . is a sexually violent predator under

subsection (a). If the court grants the motion, the court shall appoint two

(2) psychologists or psychiatrists who have expertise in criminal behavioral

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disorders to evaluate the person and testify at the hearing. After conducting

the hearing and considering the testimony of the two (2) psychologists or

psychiatrists, the court shall determine whether the person is a sexually

violent predator under subsection (a). A hearing conducted under this

subsection may be combined with the person‟s sentencing hearing.

* * *

(g) This subsection does not apply to a person who has two (2) or

more unrelated convictions for an offense described in IC 11-8-8-4.5 for

which the person is required to register under IC 11-8-8. A person who is a

sexually violent predator may petition the court to consider whether the

person should no longer be considered a sexually violent predator. The

person may file a petition under this subsection not earlier than ten (10)

years after:

(1) the sentencing court or juvenile court makes its determination

under subsection (e); or

(2) the person is released from incarceration or secure detention.

A person may file a petition under this subsection not more than one

(1) time per year. A court may dismiss a petition filed under this

subsection or conduct a hearing to determine if the person should no longer

be considered a sexually violent predator. If the court conducts a hearing,

the court shall appoint two (2) psychologists or psychiatrists who have

expertise in criminal behavioral disorders to evaluate the person and testify

at the hearing. After conducting the hearing and considering the testimony

of the (2) psychologists or psychiatrists, the court shall determine whether

the person shall no longer be considered a sexually violent predator under

subsection (a). If a court finds that the person should no longer be

considered a sexually violent predator, the court shall send notice to the

department of correction that the person is no longer considered a sexually

violent predator. . . .

Here, Neal argues that his classification as a SVP under this amended version of

Indiana Code section 35-38-1-7.5 violates the ex post facto clause of the Indiana

Constitution because he is ineligible to petition for a change of status under subsection

(g). Although cited by neither party, Flanders, 955 N.E.2d at 732, is instructive.

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Therein, Flanders committed sexual misconduct with a minor in 2005. In 2007, he was

sentenced to ten years in prison. At some point, the DOC informed him that he had been

classified as a SVP. He qualified as a SVP under the 2007 amendments because he had

two unrelated convictions for sex offenses. In 2009, Flanders filed a petition for post

conviction relief wherein he argued that his classification as a SVP violated the ex post

facto clause of the Indiana Constitution. The post conviction court denied the petition,

and Flanders appealed.

This Court reviewed Harris, 949 N.E.2d at 803 and Jensen v. State, 905 N.E.2d

384 (Ind. 2009), two cases which established the analytical framework for the ex post

facto issue. Specifically, we noted that in Jensen, the Indiana Supreme Court adopted the

“intent-effects” test. Flanders, 955 N.E.2d at 749.

Under this test the court must first determine whether the legislature meant

the statute to establish civil proceedings. If the intention of the legislature

was to impose punishment, then that ends the inquiry, because punishment

results. If, however the court concludes the legislature intended a non-

punitive regulatory scheme, then the court must further examine whether

the statutory scheme is so punitive in effect as to negate that intention

thereby transforming what was intended as a civil regulatory scheme into a

criminal penalty.

Id. (quoting Jensen, 905 N.E.2d at 390) (citations omitted). We pointed out that the

Court concluded there was no evidence of a punitive intent on the part of the legislature;

therefore, the Court considered whether the registration act nevertheless has a punitive

effect. Id.

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We also noted that the Indiana Supreme Court adopted a seven-factor test: 1)

whether the sanction involves an affirmative disability or restraint; 2) whether it has

historically been regarded as punishment; 3) whether it comes into play only on a finding

of scienter; 4) whether it promotes the traditional aims of punishment – retribution and

deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether it

has a rational alternative purpose; and 7) whether it is excessive in relation to the

alternative purpose. Id.

We noted that the supreme court found that the first three factors leaned in favor

of finding the act punitive because it imposed additional obligations and burdens upon

SVPs, such as registering for life and informing law enforcement if they will be away

from their residences for more than seventy-two hours and was comparable to the

historical punishment of shaming. Id. We also noted that the fourth, fifth, and sixth

factors leaned in favor of finding the act non-punitive because the act promoted the

traditional aims of punishment, applies to behavior that was already a crime, and

promoted the rational alternative purpose of public safety. Id. As to the seventh factor,

we quoted the following:

The „broad and sweeping‟ disclosure requirements were in place and

applied to Jensen at the time of his guilty plea in 2000. Nothing in that

regard was changed by the 2006 amendments. And with regard to lifetime

registration, we note that sexually violent predators may, after ten years,

„petition the court to consider whether the person should no longer be

considered a sexually violent predator.‟

Id. at 749-50 (quoting Jensen at 394.).

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Thus, we pointed out that the Indiana Supreme Court also concluded that the

seventh factor leaned in favor of finding the act non-punitive and that this factor was

afforded considerable weight when applying the seven-factor test. Id. at 750. We also

pointed out that because four of the seven factors leaned in favor of finding the act non-

punitive, the Indiana Supreme Court concluded that it was not an ex post facto law. Id.

We further noted that in Harris, our supreme court considered an ex post facto

challenge to the 2007 amendments and again applied the seven-factor test. The analysis

was substantially similar to the analysis in Jensen. As to the seventh factor, we noted that

the supreme court explained as follows:

Finally, and most importantly, as applied to Harris, the Act‟s

requirements are not excessive in relation to its legitimate, regulatory

purpose. Like Jensen, many of the Act‟s registration and disclosure

requirements were in place and applied to Harris at the time he pled guilty

to child molesting, well before the 2007 Amendment. Further, like the

2006 Amendment, the 2007 Amendment provides that in ten years from the

date of his release from prison – the time frame in which Harris was

originally required to register – he may petition the court „to consider

whether [he] should no longer be considered an [SVP],‟ Ind. Code § 35-38-

1-7.5(g) (Supp. 2007). And, under the 2007 Amendment, the court at that

point may determine if Harris presents a future threat – i.e., „suffers from a

mental abnormality or personality disorder that makes [him] likely to

repeatedly commit a sex offense.” I.C. § 35-38-1-7.5(a) – after consulting

with two psychologists or psychiatrists who have expertise in criminal

behavioral disorders. I.C. § 35-38-1-7.5(g). As we read the 2007

Amendment, if he is not a SVP under this standard, then he no longer has to

register as one and his lifetime-registration requirement terminates. But if

he is, then the Act requires him to continue to register; he can petition the

court again to determine his SVP status in another year.

It is clear that this provision of the 2007 Amendment advances the

Act‟s legitimate regulatory purpose of public safety – by its terms, only

those people who present a future threat are required to register for their

lifetimes. Because of this provision allowing for an individualized

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determination based on his likelihood to reoffend after his original ten-year

registration requirement is up, the 2007 Amendment seems even less

punitive as applied to Harris than as to Jensen under the 2006 Amendment.

Id. (quoting Harris, 949 N.E.2d at 812-13) (footnotes omitted).

We noted that Flanders‟s case is similar to Harris and Jensen as to the first six

factors; three in favor of punitive and three in favor of non-punitive. Id. at 751.

However, his case differed as to the seventh factor because Flanders could not petition

the court to change his status because he had two unrelated convictions for sex offenses.

Id. Thus, four of the seven factors, including the seventh factor that our supreme court

accorded special weight, weighed in favor of finding the 2007 amendments punitive as

applied to Flanders. Id. We therefore found an ex post facto violation. Id.

Although Flanders argued that the remedy for the ex post facto violation was to

reverse his designation as a SVP, we disagreed. Id. at 752. The problematic provision

was Indiana Code section 35-38-1-7.5(g), which made offenders with two or more

unrelated convictions for sex offenses ineligible to petition the court for a change in

status. We concluded that Flanders could be placed in the same position as offenders like

Harris and Jensen by reinstating his right to petition the court for removal of his SVP

status after ten years. Id. We therefore ordered that Flanders be allowed to petition for a

change in status once a year after he had been registered for ten years. Id. at 753.

The facts in the case before us are more similar to those in Jensen and Harris than

those in Flanders. Neal is a SVP by operation of law under Indiana Code section 35-38-

1-7.5(b)(1) because he was convicted of child molesting as a class B felony. Indiana

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Code section 35-38-1-7.5 clearly states that he can petition the court to consider whether

he should no longer be considered a sexually violent predator ten years after he is

released from incarceration. Only those defendants who have two or more unrelated

convictions for an offense described in Indiana Code section 11-8-8-4.5 are ineligible to

petition the court for a change in status. Because Neal can petition the court ten years

after he is released from incarceration, we find no ex post facto violation. See Harris,

949 N.E.2d at 803, Jensen, 905 N. E.2d at 905.

Affirmed.

BAKER, J., and BAILEY, J., concur.

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