MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                          Apr 03 2020, 8:53 am
the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana

                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
Joshua L. Waller,                                         April 3, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2615
        v.                                                Appeal from the Brown Circuit
                                                          Court
State of Indiana,                                         The Honorable Mary Wertz, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          07C01-1611-F4-477



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020                 Page 1 of 5
                                           Case Summary
[1]   On April 20, 2019, Joshua Waller pled guilty to Level 5 felony attempted child

      solicitation and Level 6 felony dissemination of matter harmful to minors. At

      sentencing, the trial court accepted Waller’s guilty plea and sentenced him in

      accordance with its terms. The trial court also found that given Waller’s prior

      unrelated conviction for Level 4 child molesting, Waller was a sexually violent

      predator (“SVP”). Waller challenges the SVP classification on appeal. We

      reverse and remand for further proceedings consistent with this decision.



                            Facts and Procedural History
[2]   On May 1, 2016, Waller engaged in a social-media communication with

      eleven-year-old K.H. During this communication, Waller, believing that K.H.

      was a child under the age of eighteen, sent K.H. a picture of his penis. On May

      13, 2016, Waller communicated online with a person who he believed to be a

      thirteen-year-old girl. During this communication, Waller expressed that he

      “wanted to engage in sexual intercourse” with the girl. Tr. p. 19. Although the

      person with whom he was communicating turned out to be an adult police

      officer, Waller believed that he was asking a thirteen-year-old girl to engage in

      sexual intercourse.


[3]   On November 2, 2016, the State charged Waller with Level 5 felony attempted

      child solicitation, Level 6 felony dissemination of matter harmful to minors,

      and two counts of Class A misdemeanor inappropriate communication with a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020   Page 2 of 5
      child. While awaiting trial in the instant case, on May 15, 2017, Waller was

      convicted of Level 4 felony child molesting in Henry County (“the Henry

      County conviction”). In that case, Waller was sentenced to a term of ten years

      with two years suspended to probation. He was also ordered to register with

      the State’s sex offender registry for a period of ten years upon his release from

      incarceration.


[4]   In April of 2019, Waller entered into a plea agreement under the terms of which

      he agreed to plead guilty to the Level 5 felony attempted child solicitation and

      Level 6 felony dissemination of matter harmful to minors. In exchange, the

      State agreed to dismiss the remaining charges, that the sentences for the

      convictions should run concurrently, and that the executed portion of his

      sentence should be capped at three years. On October 16, 2019, the trial court

      accepted Waller’s guilty plea and sentenced him to an aggregate three-year

      term. Noting the Henry County conviction, the trial court also found that

      Waller was an SVP.



                                 Discussion and Decision
[5]   Waller contends that the trial court erred in finding him to be an SVP. In

      challenging his classification as an SVP, Waller claims that “[a]t the time of the

      commission of the offenses in this case, he did not have a previous unrelated

      conviction for a sex offense for which he was required to register as a sex or

      violent offender.” Appellant’s Br. p. 6. Specifically, he argues that although he

      had committed the acts leading to the Henry County conviction prior to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020   Page 3 of 5
      committing the underlying offenses, he had not yet been convicted of child

      molesting in Henry County when he committed the underlying offenses.

      Waller therefore claims that the trial court erred by finding him to be an SVP.


[6]   Indiana Code section 35-38-1-7.5(b)(2) provides: “(b) A person who … (2)

      commits a sex offense (as defined in IC 11-8-8-5.2) while having a previous

      unrelated conviction for a sex offense for which the person is required to register

      as a sex or violent offender under IC 11-8-8 … is a sexually violent predator.”

      (Emphasis added). The statutory sequence included in this statute is that an

      individual commits a sex offense while having a previous unrelated conviction

      for a sex offense. Thus, a plain reading of the statute indicates that proper

      sequencing requires that the individual must have been convicted of the

      unrelated sex offense prior to committing the acts at issue in the instant case.


[7]   This reading is consistent with the Indiana Supreme Court’s prior decision

      regarding proper sequencing in habitual-offender determinations. In Flint v.

      State, 750 N.E.2d 340, 341 (Ind. 2001), the Indiana Supreme Court provided

      that failure to prove the proper sequencing requires that the habitual offender

      determination be vacated. The Court also outlined the proper sequencing for

      habitual offender determinations as requiring the commission of the second

      felony to be subsequent to the sentencing for the first, and the sentencing for the

      second felony to have preceded the commission of the felony for which the

      enhanced sentence is being sought. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020   Page 4 of 5
[8]    Reading the SVP statute in a manner consistent with the Indiana Supreme

       Court’s decision in Flint, we are convinced that Waller could only be found to

       be an SVP under Indiana Code section 35-38-1-7.5(b)(2) if he committed the sex

       offense at issue after being convicted of an unrelated sex offense. Because

       Waller committed the sex offense at issue in the instant case before he was

       convicted of a sex offense in the Henry County case, we therefore conclude that

       the trial court erred in finding Waller to be an SVP under Indiana Code section

       35-38-1-7.5(b)(2).


[9]    However, while the trial court erred in finding Waller to be an SVP under

       Indiana Code section 35-38-1-7.5(b)(2), we note that in its Appellee’s Brief, the

       State has argued that one remedy would be to remand the matter to the trial

       court for resentencing, specifically for the trial court to consider whether Waller

       could be found to be an SVP under another subsection of Indiana Code section

       35-38-1-7.5. Under these circumstances, we remand the matter to the trial court

       with instructions to conduct a hearing during which the trial court should

       resentence Waller, considering whether he qualifies as an SVP under any other

       subsection of Indiana Code section 35-38-1-7.5.

[10]   The judgment of the trial court is reversed and remanded for further

       proceedings consistent with this decision.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020   Page 5 of 5
