                                                                             FILED
                                                                        Aug 22 2018, 9:53 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michelle F. Kraus                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                        Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dickie D. Bridges,                                         August 22, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-373
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances C. Gull,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           02D05-1708-F5-214



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018                              Page 1 of 7
[1]   Dickie Bridges is charged with Level 5 Felony Failure to Register as a Sex

      Offender.1 Bridges moved to dismiss that charge and to remove him from the

      sex offender registry. He brings this interlocutory appeal from the trial court’s

      denial of his motion, arguing that the tolling of his registration period violated

      the ex post facto clause of the Indiana Constitution. Finding no error, we

      affirm.


                                                       Facts
[2]   On October 7, 2002, Bridges was convicted of two counts of Class C felony

      child molesting. As a result, Bridges was required to register with the sex

      offender registry for ten years pursuant to Indiana’s Sex Offender Registration

      Act.2 On May 16, 2006, Bridges was released from prison, and his ten-year

      registration requirement began. On that day, his registration requirement was

      scheduled to end on May 16, 2016.3


[3]   The General Assembly amended Indiana Code section 11-8-8-19, effective July

      1, 2008, to toll the registration requirements for offenders who commit

      additional offenses that result in incarceration. Specifically, the amendments

      required that, if the offender is convicted of a subsequent offense, the




      1
          Ind. Code § 11-8-8-17(a)(1).
      2
          Ind. Code § 11-8-8-1 et seq.
      3
        Pursuant to legislative amendments to the Act, around the time of his release, Bridges’s registration
      requirement was changed to a lifetime requirement; then, pursuant to Gonzalez v. State, 980 N.E.2d 312 (Ind.
      2013), it reverted to the ten-year period at issue in this case.

      Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018                                Page 2 of 7
      registration period must be tolled during any period that the offender is

      incarcerated for that subsequent offense. The amendments did not mandate

      that the ten-year period restart if the offender is convicted and incarcerated for a

      subsequent offense.


[4]   After 2008, Bridges was convicted of the following offenses:


             • On April 28, 2010, Bridges was charged with felony4 operating while
               intoxicated, an offense alleged to have occurred in March 2010. On
               August 2, 2010, Bridges was convicted of this offense and received a
               suspended sentence that was later revoked.
             • On March 7, 2011, Bridges was convicted of Class D felony failure to
               register as a sex offender and sentenced to two executed years.
             • On August 2, 2013, Bridges was convicted of Class C felony failure to
               register as a sex offender and sentenced to four executed years.

[5]   When Bridges was released from prison on January 29, 2017, the State advised

      him that he was required to register as a sex offender. The State applied the

      2008 amendments’ tolling provision to Bridges’s 2010, 2011, and 2013

      convictions, and as a result, the State required Bridges to register as a sex

      offender until January 4, 2020. Bridges did not register during the period of

      June 29 to July 17, 2017.


[6]   On August 3, 2017, the State charged Bridges with Level 5 felony failure to

      register as a sex offender. On October 23, 2017, Bridges filed a motion to

      dismiss and to remove himself from the sex offender registry, challenging the




      4
          The class of felony is not available in the record.


      Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018          Page 3 of 7
      State’s application of the 2008 amendments to the tolling of his registration

      requirement. On October 27, 2017, an evidentiary hearing took place, and on

      January 25, 2018, the trial court denied Bridges’s motion. Bridges now brings

      this interlocutory appeal.


                                      Discussion and Decision
[7]   Bridges’s sole argument on appeal is that the trial court erred by denying his

      motion to dismiss and to remove him from the sex offender registry. 5

      Specifically, Bridges argues that the application of the 2008 amendments, which

      became effective after his initial offense, violates Indiana’s constitutional

      prohibition against ex post facto laws.


[8]   Bridges’s argument on appeal is a question of law, which we consider de novo.

      Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). When a party challenges a statute

      as an alleged violation of the Indiana Constitution, that party bears the burden

      of proof and all doubts are resolved against that party. Jensen v. State, 905

      N.E.2d 384, 390 (Ind. 2009). “If two reasonable interpretations of a statute are

      available, one of which is constitutional and the other not, we will choose that

      path which permits upholding the statute because we will not presume that the

      legislature violated the constitution unless the unambiguous language of the




      5
       Bridges also briefly mentions that there is a question as to whether the amount of time to toll his registration
      period was properly calculated, but then states that this issue is not currently on appeal. Therefore, we
      decline to address this issue.

      Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018                                   Page 4 of 7
       statute requires that conclusion.” Id. (internal quotation marks and citation

       omitted).


[9]    The Indiana Constitution prohibits laws that impose punishment beyond what

       was prescribed at the time the act was committed. Tyson, 51 N.E.3d at 92. The

       principle fundamental to this prohibition is that people have a right to fair

       warning of the criminal penalties that may result from their conduct. Id.

       Specifically, our Constitution provides that “[n]o ex post facto law . . . shall

       ever be passed.” Ind. Const. Art. 1, § 24. Article 1, Section 24 “forbids laws

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

       was committed or imposing additional punishment for an act then proscribed.”

       Lemon v. Harris, 949 N.E.2d 803, 809 (Ind. 2011). “The critical question in

       evaluating an ex post facto claim ‘is whether the law changes the legal

       consequences of acts completed before its effective date.’” Sewell v. State, 973

       N.E.2d 96, 102 (Ind. Ct. App. 2012) (quoting Weaver v. Graham, 450 U.S. 24, 31

       (1981)) (italics omitted).


[10]   Since it was amended in 2008, Indiana Code section 11-8-8-19 states that the

       sex offender registration requirement applies until the expiration of ten years

       after the date the offender is either released from a penal facility; placed in a

       community transition program; placed in a community corrections program;

       placed on parole; or placed on probation for the sex offense requiring

       registration, whichever occurs last. The statute also states that “[t]he

       registration period is tolled during any period that the sex or violent offender is



       Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018           Page 5 of 7
       incarcerated. The registration period does not restart if the offender is

       convicted of a subsequent offense.” I.C. § 11-8-8-19.


[11]   Bridges contends that the 2008 amendments’ tolling provision was applied to

       him retroactively and therefore violated our state’s prohibition against ex post

       facto laws. But Bridges committed his subsequent offenses in 2010, 2011, and

       2013, years after the 2008 amendments became effective. Thus, no retroactive

       application took place, and without retroactive application, there can be no ex

       post facto violation. Indeed, this statute does not necessarily apply to all people

       who have already committed sex offenses—rather, the statute’s plain language

       makes clear that it applies only to people who, after having committed a sex

       offense, subsequently commit an additional offense that leads to a new sentence

       of incarceration. Bridges’s registration was tolled not because of his 2002 child

       molestation conviction, but because, after his release in 2006 and after the 2008

       amendments became effective, he committed and was convicted of and

       sentenced for new offenses. And because Bridges committed his subsequent

       offenses years after the 2008 amendments became effective, he had fair notice

       and warning that he would be subjected to the tolling provision for his

       registration if he became incarcerated after 2008.


[12]   Bridges contends that extending his registration to 2020 does not take into

       account the nearly four years that he was on the registry during his

       incarceration. It is true that Bridges’s profile remained on the registry—and its

       public website—while he was incarcerated; his profile showed that he was

       incarcerated during that time. That Bridges spent four years on the registry

       Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018          Page 6 of 7
       without receiving credit for that time is a point well taken. However, that is a

       policy argument to take to the General Assembly, not an argument for this

       Court, which “may not interpret a statute that is clear and unambiguous on its

       face.” Denney v. State, 773 N.E.2d 300, 301 (Ind. Ct. App. 2002). Because the

       statute that contains the tolling provision is clear and unambiguous on its face,

       we are compelled to find that tolling Bridges’s registration did not change the

       legal consequences of the acts that he completed before the 2008 amendments

       became effective.


[13]   In sum, tolling Bridges’s registration on the sex offender registry did not violate

       our state’s prohibition against ex post facto laws.


[14]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018         Page 7 of 7
