      MEMORANDUM DECISION
                                                                           Mar 05 2015, 6:44 am
      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
      Alvino Pizano                                            Gregory F. Zoeller
      Hobart, Indiana                                          Attorney General of Indiana
                                                               Kathy Bradley
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Alvino Pizano,                                           March 5, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A05-1406-CR-277
              v.                                               Appeal from the Lake Superior
                                                               Court

      State of Indiana,                                        The Honorable Salvador Vasquez,
                                                               Judge.
      Appellee-Plaintiff
                                                               Cause No. 45G01-0505-FC-66




      Mathias, Judge.

[1]   Alvino Pizano, Jr. (“Pizano”) appeals the Lake Superior Court’s denial of his

      Motion to Remove Sexually Violent Predator Designation and Motion to

      Remove Parole Special Stipulations numbers 1, 5, and 10.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015         Page 1 of 9
[2]   We affirm.


                                 Facts and Procedural History

[3]   In May 2005, Pizano was charged with Class A felony child molesting and

      Class C felony child molesting. In November 2006, Pizano was charged with

      Class C felony child molesting and Class D felony neglect of a dependent. In

      April 2007, Pizano agreed to plead guilty to an amended charge of Class B

      felony child molesting and Class D felony neglect of a dependent. The State

      also agreed to dismiss the remaining charges.


[4]   Pizano was sentenced to an aggregate twelve year sentence in the Department

      of Correction: consecutive terms of ten years for the Class B felony child

      molesting conviction and two years for the Class D felony neglect of a

      dependent conviction. In the sentencing order, the trial court noted that Pizano

      is required to register as a sex offender. Appellant’s App. p. 26.

[5]   In February 2014, the Department of Correction notified Pizano that he was

      required to register as a sexually violent predator pursuant to Indiana Code

      section 35-42-4-3. On March 22, 2014, Pizano was released on parole, and

      shortly thereafter, he signed “Parole Stipulations for Sex Offenders.” Pizano

      initialed each stipulation, including numbers 1, 5, and 10, which provide as

      follows:

              1. You shall enroll in, actively participate in and successfully complete
              an approved sex offender treatment program. You must maintain
              steady and program acceptable progress toward all treatment goals and



      Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015   Page 2 of 9
              may not change treatment providers without prior approval of your
              parole agent. Prompt payment of any fees is your responsibility.
              5. You must not reside, visit or be within one thousand (1,000) feet of
              public parks with playgrounds, pools, rides, and/or nature trails;
              schools, day care centers, public swimming pools, public beaches,
              theaters, or similar locations where children are reasonably expected to
              gather or congregate, without the express prior written approval of you
              parole agent.
              10. You shall not use any computer or electronic communication
              device with internet connection with access to any “online computer
              service” at any location (including place of employment) without the
              prior approval of your parole agent. This includes any internet service
              provider, bulletin board system, e-mail system or any other public or
              private computer network.

      Appellant’s App. pp. 33-34.


[6]   Despite this agreement, on March 31, 2014, Pizano filed a motion challenging

      his designation as a sexually violent predator and argued that the designation

      violated his due process rights and the Ex Post Facto Clause. Pizano also

      argued that Stipulations numbers 1 and 5 violated his due process rights. He

      also filed a second motion arguing that Stipulation number 10 is

      unconstitutionally overbroad. The trial court denied Pizano’s motions on

      May 30, 2014. Pizano now appeals.


                            I. Sexually Violent Predator Designation

[7]   Pizano argues that under Indiana Code section 35-38-1-7.5, the trial court was

      required to designate him as a sexually violent predator at his sentencing




      Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015   Page 3 of 9
      hearing.1 He further argues that designating him as such without a hearing

      violated his due process rights. Indiana Code section 35-38-1-7.5(d) provides

      that “[a]t the sentencing hearing, the court shall indicate on the record whether

      the person has been convicted of an offense that makes the person a sexually

      violent predator under subsection (b).”


[8]   An individual who commits an offense listed in section 35-38-1-7.5(b) is a

      sexually violent predator. The statute was amended effective May 10, 2007,

      (shortly after Pizano was sentenced) and mandates that a person is a sexually

      violent predator “by operation of law” if the individual committed a section 35-

      38-1-7.5(b) offense and he or she was released from incarceration, secure

      detention, or probation for that offense after June 30, 1994.


[9]   By virtue of his 2007 conviction for Class B felony child molesting, Pizano is a

      sexually violent predator by operation of law and is required to register for life

      under Indiana Code section 35-38-1-7.5(b). Therefore, Pizano’s claim that he is

      improperly designated as a sexually violent predator because the trial court did

      not designate him as such at his sentencing hearing is without merit.2 See

      Lemmon v. Harris, 949 N.E.2d 803, 808-09 (Ind. 2011) (stating “under the 2007

      Amendment, the Legislature had changed the Act from requiring the court to

      determine SVP status at the sentencing hearing to the ‘automatic designation of

      SVP status.’” At the time Harris was released from prison in December 2007,

      1
          As we stated in our Facts section, the trial court classified Pizano as a “sex offender” at sentencing.
      2
       For this same reason, we reject Pizano’s less than cogent claim that the State is “time barred by Estoppel by
      Laches to designate Pizano a Sexually Violent Predator.” See Appellant’s Br. at 8.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015                     Page 4 of 9
       the sentencing court was no longer required to have ‘determined’ a person’s

       SVP status”). To the extent Pizano’s argument could be considered an ex post

       facto claim, it is waived for failure make to a cogent argument and to cite to

       relevant authority.3 See Harris v. State, 985 N.E.2d 767, 783 (Ind. Ct. App.

       2013), trans. denied.


                                             II. Parole Stipulations

[10]   The Parole Board has almost absolute discretion in carrying out its duties, and

       it is not subject to the supervision or control of the Courts.4 White v. Ind. Parole

       Bd., 713 N.E.2d 327, 328 (Ind. Ct. App. 1999), trans. denied. In addition, there

       is no constitutional or inherent right to release on parole. Id. Therefore, we

       limit our review of the Parole Board’s decision to whether “‘the requirements of

       Due Process have been met and that the Parole Board has acted within the

       scope of its powers.’” Id. (quoting Murphy v. Ind. Parole Bd., 272 Ind. 200, 204,

       397 N.E.2d 259, 261 (Ind. 1979)).


       3
         Waiver notwithstanding, Pizano’s designation as a sexually violent predator does not violate Indiana’s Ex
       Post Fact Clause. Our courts have reached the same result in numerous cases involving similar
       circumstances. See e.g. Lemmon v. Harris, 949 N.E.2d 803, 813 (Ind. 2011); Jensen v. State, 905 N.E.2d 384,
       394 (Ind. 2009); Seales v. State, 4 N.E.3d 821, 827 (Ind. Ct. App. 2014), trans. denied; Hollen v. State, 994
       N.E.2d 1166, 1175 (Ind. Ct. App. 2013); Harlan v. State, 971 N.E.2d 163, 169 (Ind. Ct. App. 2012).
       4
         Pizano’s argument throughout his brief that his due process rights have been violated because the parole
       stipulations were not imposed at his sentencing hearing lacks merit. Unlike conditions of probation,
       conditions of parole “are a function of the executive (i.e., the Parole Board, in imposing given conditions and
       probation officers in enforcing them) and the legislature (i.e., the General Assembly’s codification of statutes
       governing what those conditions may be), and must be carried out when an offender has completed a
       shortened portion of an imposed sentence.” Bleeke v. Lemmon, 6 N.E.3d 907, 918 (Ind. 2014). See also Gaither
       v. Ind. Dep’t of Correction, 971 N.E.2d 690, 694 (Ind. Ct. App. 2012) (quoting Carswell v. State, 721 N.E.2d
       1255, 1258 (Ind. Ct. App. 1999) (“[T]he only practical difference between the two is that ‘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”).



       Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015                  Page 5 of 9
[11]   A prisoner is released on parole only upon agreement to certain conditions.

       Harris v. State, 836 N.E.2d 267, 272 (Ind. Ct. App. 2005), trans. denied.

               The Indiana Code provision governing the conditions of parole for
               parolees mandates certain conditions be assigned for sex offenders. See
               Ind. Code § 11-13-3-4(g)(2). It also lays out other conditions that may
               be assigned by the Parole Board. See generally Ind. Code § 11-13-3-4.
               And the provision also provides that “[t]he parole board may also
               adopt, under IC 4-22-2, additional conditions to remaining on parole
               and require a parolee to satisfy one (1) or more of these conditions.”
               Ind. Code § 11-13-3-4(b). However, “[t]hese conditions must be
               reasonably related to the parolee’s successful reintegration into the
               community and not unduly restrictive of a fundamental right.” Ind.
               Code § 11-13-3-4(b).

       Bleeke v. Lemmon, 6 N.E.3d 907, 917 (Ind. 2014).


[12]   Pizano also argues that subjecting him to Parole Stipulations numbers 1, 5, and

       10 violates the Due Process Clause of the United States Constitution. We will

       address each stipulation in order.


       A. Stipulation Number 1

[13]   Under Stipulation Number 1, Pizano is required to “enroll in, actively

       participate in and successfully complete an approved sex offender treatment

       program” and pay the fees for the program. Appellant’s App. p. 33. The Parole

       Board is statutorily authorized to require sex offenders to participate in

       treatment programs. See Ind. Code § 11-13-3-4(g). Pizano objects to paying $40

       per week for the treatment program and argues that “he has and is suffering a

       grievous loss.” Appellant’s Br. at 9.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015   Page 6 of 9
[14]   Pizano’s claim that he is required to pay $40 per week for the treatment

       program and that he does not have the ability to pay the program fee is not

       supported by any evidence in the record. Importantly, Pizano does not allege

       that the Parole Board has revoked or threatened to revoke his parole due to

       inability to pay the fee. See I.C. § 11-13-3-4(m) (“A parolee may be responsible

       for the reasonable expenses, as determined by the department, of the parolee’s

       participation in a treatment or other program required as a condition of parole

       under this section. However, a person’s parole may not be revoked solely on

       the basis of the person’s inability to pay for a program required as a condition of

       parole under this section”). Therefore, Pizano has not proved a due process

       violation with regard to Stipulation Number 1.


       B. Stipulation Number 5

[15]   Stipulation Number 5, the residency restriction, provides that Pizano is not

       allowed to reside within 1,000 feet of certain locations where children are

       normally present without the express prior written approval of his parole agent.

       Pizano argues that subjecting him to Parole Stipulation number 5 violates his

       due process rights. He makes this argument without citation to authority or

       cogent argument. He has therefore waived appellate review of this claim. See

       Ind. Appellate Rule 46(A)(8)(a); Smith v. State, 822 N.E.2d 193-202-03 (Ind.

       Ct. App. 2005), trans. denied. Moreover, restricting Pizano’s access to children is

       reasonably related to his successful reintegration into the community.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015   Page 7 of 9
       C. Stipulation Number 10

[16]   Stipulation Number 10 limits Pizano’s internet and computer access and

       specifically states:

               You shall not use any computer or electronic communication device
               with internet connection with access to any “online computer service”
               at any location (including place of employment) without the prior
               approval of your parole agent. This includes any internet service
               provider, bulletin board system, e-mail system or any other public or
               private computer network.

       Appellant’s App. p. 34. Pizano argues that the stipulation is unconstitutionally

       overbroad because he did not use the internet to commit his offense, and it

       “denies him the fundamental right to online educational pursuits.” Appellant’s

       Br. at 9.

[17]   This same stipulation was unsuccessfully challenged in Harris. There, we

       explained that limiting the sex offender’s Internet access:

               is reasonably related to his successful reintegration into the
               community. By imposing the restriction on Harris’s use of the Internet,
               the Board was legitimately concerned that a released child molester’s
               unfettered access to a computer might result in additional criminal
               conduct. This is so because the Internet, or Cyberspace, defies
               boundaries and offers unlimited access to people, including children.
               This access is often subtle to children—as it comes in the form of
               friendship or, in Harris’s case, prospective employment—and
               undetected by parents. Restricting a child molester’s access to this
               communication medium, therefore, serves to protect the public and to
               prevent future criminal activity.

       836 N.E.2d at 275 (internal citation omitted). See also I.C. 11-13-3-4(g)(2)(F)(i)

       (granting the Parole Board authority to prohibit a sex offender from “(i)


       Court of Appeals of Indiana | Memorandum Decision 45A05-1406-CR-277 | March 5, 2015   Page 8 of 9
       accessing or using certain web sites, chat rooms, or instant messaging programs

       frequented by children; and (ii) deleting, erasing, or tampering with information

       on the sex offender’s personal computer with intent to conceal an activity

       prohibited by item (i)).

[18]   Pizano is not completely prohibited from using the internet; he may do so if he

       receives prior approval from his parole agent. Also, Pizano does not allege that

       his parole agent refuses to grant him permission to use the internet for

       educational purposes.


[19]   For all of these reasons, we conclude that the restrictions in Stipulation Number

       10 are reasonably related to the goal of reintegrating Pizano into his

       community, protecting the public, and preventing future crime. Therefore, the

       restrictions do not unduly infringe on Pizano’s fundamental rights. See Harris,

       836 N.E.2d at 276.

                                                  Conclusion

[20]   We affirm the trial court’s denial of Pizano’s Motion to Remove Sexually

       Violent Predator Designation and Motion to Remove Parole Special

       Stipulations numbers 1, 5, and 10.

[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




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