                                                                             FILED
                                                                      Jan 24 2020, 8:32 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Lisa M. Johnson                                            Curtis T. Hill, Jr.
      Brownsburg, Indiana                                        Attorney General of Indiana
                                                                 Jesse R. Drum
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

        Stephen W. Peele,                                        January 24, 2020
        Appellant-Defendant,                                     Court of Appeals Case No.
                                                                 19A-CR-1775
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable James K. Snyder,
      Appellee-Plaintiff.                                        Master Commissioner
                                                                 Trial Court Cause No.
                                                                 49G02-0205-PC-123251



      Tavitas, Judge.


                                              Case Summary
[1]   Stephan Peele appeals the dismissal of his verified petition for removal from the

      Indiana Sex Offender Registry (the “Registry”). We reverse and remand.

      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                     Page 1 of 13
                                                          Issue
[2]   Peele raises two issues on appeal. We find one to be dispositive: whether the

      trial court abused its discretion when it dismissed Peele’s verified petition for

      removal from the sex offender registry for lack of subject matter jurisdiction. 1


                                                         Facts 2
[3]   On a date that is unclear from the record, Peele was convicted in Shelby

      County for two counts of child molesting, as Class B felonies, and three counts

      of child molesting, as Class C felonies; he was subsequently sentenced on April

      17, 1989, to an aggregate twelve-year term in the Department of Correction

      (“DOC”). 3 On March 20, 2003, Peele pleaded guilty in Marion County to

      sexual misconduct with a minor, a Class C felony; he was sentenced to eight

      years in the DOC, with five years executed and three years suspended to

      probation.


[4]   It is unclear from the record precisely when Peele was notified that he was

      required to register as a sex offender for a ten-year period. Peele’s name was

      reportedly added to the Registry on June 10, 2005. In 2007, according to Peele,




      1
       We do not reach Peele’s claim that the registration requirement, as applied to him, violates Indiana’s
      prohibition against ex post facto laws.
      2
       The State’s brief does not contain a Statement of Facts. Appellate Rule 46(B) permits the omission of a
      Statement of Facts from an appellee’s brief “if the appellee agrees with statements in the appellant’s brief”
      and so states. Key facts are missing from the record on appeal, including the date of Peele’s conviction in
      Shelby County. A conforming Statement of Facts from the State, or an affirmative statement that the State
      adopts Peele’s Statement of Facts, would have aided our review.
      3
          Peele’s date of conviction for the Shelby County offense is unknown.


      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                               Page 2 of 13
      Peele was notified in a letter from the DOC, dated July 23, 2007, that he was

      considered a “sex and violent offender” and required to register for the

      remainder of his life. Appellant’s App. Vol. II p. 38.


[5]   On February 7, 2019, Peele filed, pursuant to Indiana Code Section 11-8-8-

      22(c), a verified petition for removal from the Registry in the Marion Superior

      Court under the cause number associated with his Marion County conviction.

      At the time, Peele resided in Marion County. Peele alleged that the registration

      requirement, as applied to him, violated Indiana’s prohibition on ex post facto

      laws. On April 22, 2019, the DOC, by senior deputy attorney general counsel,

      entered an appearance. The following day, the DOC filed a motion to dismiss

      Peele’s petition for lack of jurisdiction. After a hearing on May 10, 2019, the

      trial court dismissed Peele’s petition for lack of jurisdiction; its order provided:


              1. One may not file a civil complaint in a criminal case. “All
              prosecutions of crimes shall be brought in the name of the state of
              Indiana,”’ Ind. Code § 35-34-1- 1(a), and a declaratory judgment
              may not be granted against the State. State v. LaRue’s, Inc., 239
              Ind. 56, 64-65, 154 N.E.2d 708, 712 (1958); Harp v. Indiana
              Department Highways, 585 N.E.2d 652, 660-61 (Ind. Ct. App.
              1992). See also, e.g. Ind. Crim. Rule 2.1 (governing appearance
              for the state and for the defendant but with nothing about
              appearance for other persons in the criminal case).


              2. Relief is sought against the Indiana Department of Correction
              but the DOC is not a party in this criminal case and is not
              represented by the prosecutor. See Ind. Dept. of Corr. v. Haley, 928
              N.E.2d 840 (Ind. Ct. App. 2010) (prosecutor does not represent
              the DOC regarding educational credit, even in the criminal case).
              Accord Payne v. State, 531 N.E.2d 216 (Ind. Ct. App. 1989)

      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020        Page 3 of 13
               (prosecutor may not waive State Police prerogative to object to
               expungement). The prosecutor may not bind the DOC as to the
               registration requirement. Stockert v. State, 44 N.E.3d 78 (Ind.
               App. 2015), trans. denied; Nichols v. State, 947 N.E.2d 1011 (Ind.
               App. 2011), reh. denied.


                                                       *****


               8. This court lacks jurisdiction in this case to address the
               collateral consequence of whether the defendant is still required
               to register as a sex or violent offender. Kirby v. State, 95 N.E.3d
               518, 520-21 (Ind. 2018). It is therefore ORDERED,
               ADJUDGED and DECREED by the court that the verified
               petition for removal from sex offender registry is denied,
               dismissed and stricken.[ 4]


      Appellant’s App. Vol. II pp. 64-65. Peele filed a motion to correct error on

      June 3, 2019, which was denied. Peele now appeals from the denial of his

      petition for removal from the Registry.


                                                      Analysis
[6]   Peele argues that the trial court erred when it dismissed his verified petition for

      removal from the sex offender registry. The State appears to concede that the

      trial court, in fact, had subject matter jurisdiction to consider Peele’s petition;

      however, the State maintains that Peele did not bring the proper form of action




      4
        We presume that the trial court’s notation that Peele’s verified petition is “denied, dismissed and stricken”
      is a scrivener’s error. We will approach this matter as Peele’s appeal from the trial court’s dismissal of his
      verified petition.

      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                                Page 4 of 13
      under a proper cause. See State’s Br. p. 7. (“‘One may not file a civil complaint

      in a criminal case[.]’ It is true that the court technically had subject matter jurisdiction

      to consider Peele’s petition. . . . . But it is also true that Peele’s was a civil

      complaint ‘that challenges a collateral consequence rather than his conviction

      or sentence.’”).


[7]   The DOC filed a motion to dismiss Peele’s petition for lack of jurisdiction,

      wherein the DOC relied on cases that analyzed issues pertaining to subject

      matter jurisdiction. The trial court granted the DOC’s motion. A motion to

      dismiss for lack of subject matter jurisdiction “presents a threshold question

      concerning the court’s power to act.” Greer v. Buss, 918 N.E.2d 607, 613 (Ind.

      Ct. App. 2009). The trial court decides whether the requisite jurisdictional facts

      exist based on its consideration of the complaint, the motion to dismiss, and

      any affidavits or other evidence submitted. Id. Where the facts are not in

      dispute, we review the trial court’s decision de novo. Id.


[8]   “Attorneys and judges alike frequently characterize a claim of procedural error

      as one of jurisdictional dimension.” K.S. v. State, 849 N.E.2d 538, 541 (Ind.

      2006). “The fact that a trial court may have erred along the course of

      adjudicating a dispute does not mean it lacked jurisdiction.” Id. “The question

      of subject matter jurisdiction entails a determination of whether a court has

      jurisdiction over the general class of actions to which a particular case belongs.”

      Id. at 542.




      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                 Page 5 of 13
[9]   Indiana Code Section 11-8-8-22, which governs petitions to remove sex

      offender designation and petitions to register under less restrictive conditions,

      provides, in pertinent part, as follows:


              (c) A person to whom this section applies may petition a court to:


                       (1) remove the person’s designation as an offender and
                       order the department to remove all information regarding
                       the person from the public portal of the sex and violent
                       offender registry Internet web site established under IC 36-
                       2-13-5.5; or


                       (2) require the person to register under less restrictive
                       conditions.


              (d) A petition under this section shall be filed in the circuit or
              superior court of the county in which the offender resides. . . . .


              (e) After receiving a petition under this section, the court may:


                       (1) summarily dismiss the petition; or


                       (2) give notice to:


                                (A) the [D]epartment [of Correction];


                                (B) the attorney general;


                                (C) the prosecuting attorney of:


                                         (i) the county where the petition was filed;

      Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 6 of 13
                                   (ii) the county where offender was most
                                   recently convicted of an offense listed in
                                   section 5 of this chapter; and


                                   (iii) the county where the offender resides;
                                   and


                          (D) the sheriff of the county where the offender
                          resides;


        and set the matter for hearing. The date set for a hearing must
        not be less than sixty (60) days after the court gives notice under
        this subsection.


        (f) If a court sets a matter for a hearing under this section, the
        prosecuting attorney of the county in which the action is pending
        shall appear and respond, unless the prosecuting attorney
        requests the attorney general to appear and respond and the
        attorney general agrees to represent the interests of the state in
        the matter. If the attorney general agrees to appear, the attorney
        general shall give notice to:


                 (1) the prosecuting attorney; and


                 (2) the court.


        (g) A court may grant a petition under this section if, following a
        hearing, the court makes the following findings:


                 (1) The law requiring the petitioner to register as an
                 offender has changed since the date on which the
                 petitioner was initially required to register.



Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 7 of 13
                 (2) If the petitioner who was required to register as an
                 offender before the change in law engaged in the same
                 conduct after the change in law occurred, the petitioner
                 would:


                          (A) not be required to register as an offender; or


                          (B) be required to register as an offender, but under
                          less restrictive conditions.


                 (3) If the petitioner seeks relief under this section because a
                 change in law makes a previously unavailable defense
                 available to the petitioner, that the petitioner has proved
                 the defense.


        The court has the discretion to deny a petition under this section, even
        if the court makes the findings under this subsection.


        (h) The petitioner has the burden of proof in a hearing under this
        section.


        (i) If the court grants a petition under this section, the court shall
        notify:


                 (1) the victim of the offense, if applicable;


                 (2) the department of correction; and


                 (3) the local law enforcement authority of every county in
                 which the petitioner is currently required to register.




Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 8 of 13
               (j) An offender may base a petition filed under this section on a
               claim that the application or registration requirements constitute
               ex post facto punishment.


               (k) A petition filed under this section must:


                        (1) be submitted under the penalties of perjury;


                        (2) list each of the offender’s criminal convictions and state
                        for each conviction:


                                 (A) the date of the judgment of conviction;


                                 (B) the court that entered the judgment of
                                 conviction;


                                 (C) the crime that the offender pled guilty to or was
                                 convicted of; and


                                 (D) whether the offender was convicted of the crime
                                 in a trial or pled guilty to the criminal charges; and


                        (3) list each jurisdiction in which the offender is required
                        to register as a sex offender or a violent offender.


               (l) The attorney general may initiate an appeal from any order
               granting an offender relief under this section.


       Ind. Code § 11-8-8-22 (emphasis added).


[10]   The plain language of Indiana Code Section 11-8-8-22(d) clearly confers subject

       matter jurisdiction upon the circuit or superior court in the county in which the

       Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 9 of 13
       offender resides to accept filing of, set a hearing on, and consider, grant, or

       deny an offender’s petition for removal from the Registry. See Clampitt v. State,

       932 N.E.2d 1256, 1258 (Ind. Ct. App. 2010) (reversing the trial court’s dismissal

       of Clampitt’s motion, pursuant to Indiana Code Section 11-8-8-22, to remove

       sexual violent predator status and ordering the trial court to consider the merits

       of the motion). A reading otherwise disregards unambiguous statutory

       language, which we will not do. The State does not suggest, and the record

       does not support a finding, that Peele filed his petition in the wrong court.


[11]   Although the trial court had subject matter jurisdiction, the State argues: “The

       procedure set out in Indiana Code Section 11-8-8-22 (which is not even in Title

       35, the criminal title of the Indiana Code) says that a petition must be filed in

       the county in which the offender resides but does not specify that it be filed in

       the criminal case that gave rise to the registration obligation being challenged”;

       and “. . .[t]he obligation is to file a new declaratory judgment case and to get a

       new cause number.” See Appellant’s App. Vol. II pp. 58, 60. Thus, we turn to

       the question of the proper form that the filing of a petition for removal from the

       Registry must take. The trial court relied on Kirby to support its dismissal of

       Peele’s petition. See id. at 65.


[12]   In Kirby v. State, 95 N.E.2d 518, 520-21 (Ind. 2018), our Supreme Court found

       that Kirby improperly challenged a statutory restriction on Kirby’s entry onto

       school grounds—a collateral consequence of Kirby’s conviction—under post-

       conviction rules, which govern challenges to a conviction or to a sentence. The



       Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020      Page 10 of 13
Kirby Court engaged in the following instructive discussion as to the appropriate

vehicle for challenging the collateral consequences of an offender’s conviction:


        While Kirby cannot raise his ex post facto claim in post-
        conviction proceedings, he may have a vehicle for his claim. The
        legislature created declaratory-judgment actions for the explicit
        purpose “to settle and to afford relief from uncertainty and
        insecurity with respect to rights, status and other legal relations.”
        Ind. Code § 34-14-1-12 (2017). Settling his uncertain legal status in
        light of the statutory school-entry restriction is precisely what
        Kirby wants to do. And the declaratory-judgment statutes are
        “liberally construed and administered” to achieve that purpose.


        Declaratory-judgment actions are also broadly available. “Any
        person . . . whose rights, status, or other legal relations are
        affected by a statute” can bring such an action. I.C. § 34-14-1-2.
        That action will determine “any question” of a statute’s validity
        and give “a declaration of rights, status, or other legal relations
        thereunder.” Again, this is exactly what Kirby asks for: a
        determination of whether the school-entry restriction is an invalid
        ex post facto law as applied to him.


        Indeed, Indiana caselaw shows that ex post facto claims like
        Kirby’s are often raised through declaratory-judgment actions.
        E.g., Lemmon v. Harris, 949 N.E.2d 803, 805 (Ind. 2011); Gardner
        v. State, 923 N.E.2d 959, 959 (Ind. Ct. App. 2009), trans. denied.
        And our Court of Appeals has held that declaratory-judgment
        actions are appropriate vehicles for ex post facto claims even
        when other statutory remedies are available, given the burdens
        imposed by sex-offender registration requirements. Greer v. Buss,
        918 N.E.2d 607, 615 (Ind. Ct. App. 2009).


Kirby, 95 N.E.2d 518, 520-21 (Ind. 2018) (citations omitted) (emphasis added).



Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020       Page 11 of 13
[13]   Although Indiana Code Section 11-8-8-22 is silent as to whether a declaratory

       judgment filing must be brought in a separate, civil cause or within a criminal

       cause under a qualifying court, Kirby—which our Supreme Court handed down

       in April 2018—supports a finding that an offender may pursue relief in each of

       these ways. In support of the premise that “Indiana caselaw shows that ex post

       facto claims [ ] are often raised through declaratory judgment actions[,]” our

       Supreme Court cited Lemmon, Gardner, and Greer.


[14]   Lemmon and Greer were declaratory judgment actions brought by offenders

       against commissioners of the DOC in civil actions. In these cases, sex offender-

       appellants sought to challenge collateral consequences of their convictions and

       prevailed on appeal as to, inter alia, their claims that the trial court erred in

       dismissing their civil, declaratory judgment action on jurisdictional grounds.


[15]   The Kirby Court also, however, signaled the availability of declaratory relief

       under a criminal cause when it cited Gardner. The offender in Gardner

       challenged the “prospective application of the amended registration

       requirements of Indiana Code Section 11-8-8-7” under a criminal cause;

       however, because Gardner challenged the registration requirements as an ex

       post facto law before he was actually ordered to register, the trial court denied

       relief. We affirmed the trial court’s denial of Gardner’s petition as unripe.


[16]   In the same vein, in Clampitt, a panel of this Court reversed the trial court’s

       finding that the trial court lacked jurisdiction “in [Clampitt’s] criminal case to

       grant his motion” to remove sexual violent predator status. See Clampitt, 932


       Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020         Page 12 of 13
       N.E.2d at 1258. In reversing the trial court’s judgment, we ordered the trial

       court to consider, on remand, the merits of Clampitt’s motion to remove sexual

       violent predator status, as brought under a criminal cause, pursuant to Indiana

       Code Section 11-8-8-22(e).


[17]   Based on the foregoing, we find that: (1) no legal impediment exists to the trial

       court’s legal authority to consider the merits of Peele’s petition for relief under

       Indiana Code Section 11-8-8-22; and (2) Peele properly brought his petition for

       removal from the Registry within a criminal cause in a qualifying court. The

       trial court erred in dismissing Peele’s petition.


                                                  Conclusion
[18]   The trial court erred in dismissing Peele’s petition for removal from the

       Registry; accordingly, we reverse and remand with instructions to the trial court

       to consider the merits of Peele’s petition.


[19]   Reversed and remanded.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020      Page 13 of 13
