MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Nov 30 2018, 8:50 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


APPELLANT, PRO SE                                       ATTORNEYS FOR APPELLEE
Allenn Peterson                                         Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General of Indiana
                                                        Aaron T. Craft
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Allenn Peterson,                                        November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A01-1708-MI-1773
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Kit C. Dean Crane,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        33C02-1702-MI-17



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018          Page 1 of 11
                                        Statement of the Case
[1]   Allenn Peterson, pro se, appeals the trial court’s order granting the State’s Trial

      Rule 12(B)(6) motion to dismiss Peterson’s petition, filed pursuant to the

      Indiana Sex Offender Registration Act (“SORA”), in which he requested the

      trial court to remove his designation as a sex offender. Peterson, however, had

      previously filed a petition under SORA and had been granted relief by the trial

      court when it had ordered that Peterson was not required to be designated as a

      sex offender under SORA or to register on the online sex offender registry.

      Concluding that Peterson’s petition failed to state a claim upon which relief

      could be granted, we affirm the trial court’s order.


[2]   We affirm.


                                                      Issue
            Whether the trial court abused its discretion by granting the State’s
            motion to dismiss Peterson’s petition to remove his designation as a
            sex offender.

                                                     Facts1
[3]   We previously set out the facts of Peterson’s crimes and subsequent procedural

      history in a recent memorandum decision as follows:


              On March 11, 1981, Peterson murdered Robert Watkins and
              then raped and robbed Watkins’s mother when she arrived home




      1
       Contrary to Appellate Rule 50, Peterson has included in his Appellant’s Appendix some documents that
      where not part of the record below in this cause of action.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018     Page 2 of 11
              later that evening. Peterson was subsequently convicted of
              murder, class A felony rape, and class B felony robbery. He was
              sentenced to forty-five years for murder, thirty-five years for rape,
              and thirty years for robbery. The sentences for murder and rape
              were ordered to be served consecutively. His convictions were
              upheld on direct appeal and post-conviction relief. See Peterson v.
              State, 453 N.E.2d 196 (Ind. 1983); Peterson v. State, 650 N.E.2d
              339 (Ind. Ct. App. 1995).

      Peterson v. State, No. 45A03-1408-CR-304, *1 (Ind. Ct. App. Mar. 18, 2015).

      Peterson is currently incarcerated and serving his sentence on his rape

      conviction. His earliest projected release date is April 8, 2020.


[4]   In 1994, the legislature passed the SORA, which required defendants convicted

      of certain sex crimes to register as “sex offender[s].” Wallace v. State, 905

      N.E.2d 371, 375 (Ind. 2009) (internal quotation marks and citation omitted)

      reh’g denied. SORA included registration and notification provisions and

      initially applied to eight crimes. Id. Since that time, SORA has been amended

      several times and “has expanded in both breadth and scope.” Id.


[5]   Generally, SORA now requires that defendants who are convicted of certain

      enumerated offenses, including rape and murder, to register as a “sex or violent

      offender” and for their identity to appear on the Indiana Sex and Violent

      Offender Registry (“the sex offender registry”), which is accessible to the public

      via the Internet. See IND. CODE §§ 11-8-8-4.5, 11-8-8-5. Pursuant to INDIANA




      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 3 of 11
      CODE § 11-8-2-12.4(a), the Indiana Department of Correction (“DOC”) is

      charged with maintaining the online sex offender registry.2


[6]   In 2007, the legislature added INDIANA CODE § 11-8-8-22 to SORA. This

      subsection set forth a general procedure for a person, who was required to

      register as a sex or violent offender, to petition the trial court to either remove

      the person’s designation as an offender or to allow the person to register under

      less restrictive conditions. See P.L. 216-2007, § 30 (effective July 1, 2007); I.C. §

      11-8-8-22(c).


[7]   In 2009, in Wallace, our supreme court held that SORA—as applied to the

      defendant who had committed his offense before SORA had been enacted—

      violated the ex post facto provision of the Indiana Constitution “because it

      impose[d] burdens that ha[d] the effect of adding punishment beyond that

      which could have been imposed when his crime was committed.” Wallace, 905

      N.E.2d at 384. Thereafter, in 2010, the legislature amended INDIANA CODE §

      11-8-8-22, adding further provisions setting forth the appropriate procedure for

      an offender to use when filing a petition to remove his SORA offender

      designation. See P.L. 103-2010, § 2 (effective March 24, 2010). The

      amendment also included an explicit provision that an offender could base his

      petition on a claim that the registration requirements of SORA constituted ex

      post facto punishment. See I.C. § 11-8-8-22(j).




      2
          The sex offender registry website was established, pursuant to INDIANA CODE § 36-2-13-5-5, in 2003.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018          Page 4 of 11
[8]    In 2011, Peterson filed, pursuant to INDIANA CODE § 11-8-8-22 and Wallace, a

       petition (“First SORA Petition) requesting the trial court to remove any

       designation as a sex offender and to relieve him of the requirement to register as

       a sex offender for his 1981 convictions. On August 12, 2011, the trial court

       issued an order (“August 2011 Order”) granting Peterson’s request for relief on

       his First SORA Petition. The trial court ordered that Peterson was not required

       to register as a sex offender under SORA for his crimes committed prior to

       1994. The trial court, however, specified that its order did not relieve Peterson

       of any future obligation to register under requirements of the Indiana Parole

       Board or under federal law.


[9]    In 2013, the legislature again amended INDIANA CODE § 11-8-8-22. In relevant

       part, it amended subsection (c)(1), which had previously provided that “[a]

       person to whom this section applies may petition a court to . . . remove the

       person’s designation as an offender[.]” The amendment provided that when an

       offender petitioned the trial court to remove his designation as an offender, the

       offender could also seek to have the trial court “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[.]”

       See P.L. 214-2013, § 13 (effective July 1, 2013); I.C. § 11-8-8-22(c)(1).


[10]   In March 2017, Peterson, pro se, filed with the trial court another petition to

       remove the designation of sex offender (“Second SORA Petition). He

       specifically stated that he was filing the petition pursuant to INDIANA CODE §

       11-8-8-22(c)(1). Peterson had apparently learned that, due to his rape

       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 5 of 11
       conviction, he remained designated as a sex offender within the DOC for

       purposes of its internal programs, such as the Sex Offender Management and

       Monitoring (“SOMM”) program.3 In his petition, Peterson argued that the

       DOC was violating the trial court’s August 2011 Order by continuing to

       designate him as a sex offender, and he asserted that the trial court should find

       this noncompliance to be a contempt of court. He referenced INDIANA CODE §

       11-8-8-22(j) and Wallace in support of his argument that he could raise a claim

       that the registration requirement constituted an ex post facto punishment in

       violation of Article 1, § 24 of the Indiana Constitution, and he requested the

       trial court to remove his designation as a sex offender.


[11]   Thereafter, the State filed a motion to dismiss, arguing that, under Trial Rule

       12(B)(6), Peterson had failed to state a claim upon which relief could be

       granted. The State pointed out, and asked the trial court to take judicial notice,

       that Peterson was not listed on the online sex offender registry. The State

       asserted that Peterson’s request that his sex offender designation be removed

       was a request that could not be granted because he had already been granted

       relief in his First SORA Petition.




       3
        In Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014), our Indiana Supreme Court discussed the
       SOMM Program, explained that it “is a valuable tool aimed at the legitimate purpose of rehabilitating sex
       offenders before they are fully released from State control,” and held that “its requirements do not violate the
       Fifth Amendment’s privilege against self-incrimination.”




       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018            Page 6 of 11
[12]   In Peterson’s response, he somewhat changed the focus of his argument away

       from registration under the sex offender registry to potential future implications

       involving his designation as a sex offender within the DOC. He argued that his

       designation as a sex offender “would” subject him to the “threat of future

       prosecution and punishment” and require him to participate in the DOC’s

       SOMM program. (State’s App. Vol. 2 at 17). He asserted that the SOMM

       program’s requirements “would violate [his] Fifth Amendment right” and

       “would subject [him] to additional punishment if forced to confess to the

       offenses not documented or prosecuted.” (State’s App. Vol. 2 at 17).


[13]   In July 2017, the trial court issued an order, granting the State’s motion to

       dismiss Peterson’s Second SORA Petition. The trial court’s order provided, in

       relevant part:


               [Peterson] does not appear on the Indiana Sex and Violent
               Offender Registry. Therefore, he cannot be granted removal
               from the Registry or relief from any registration obligations and
               the State of Indiana is not imposing any ex post facto punishment
               on him. [Peterson] has failed to state a claim upon which relief
               may be granted.

       (State’s App. Vol. 2 at 6). Peterson now appeals.


                                                   Decision
[14]   Peterson appeals the trial court’s order granting the State’s Trial Rule 12(B)(6)

       motion to dismiss Peterson’s Second SORA petition to remove his designation

       as a sex offender.


       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 7 of 11
               The standard of review for the dismissal of a claim granted
               pursuant to Trial Rule 12(B)(6) is de novo, requiring no deference
               to the trial court’s decision. A motion to dismiss based on Trial
               Rule 12(B)(6) for failure to state a claim upon which relief can be
               granted tests the sufficiency of a claim, not the facts supporting
               it. Viewing the complaint in the light most favorable to the non-
               moving party, we must determine whether the complaint states
               any facts upon which the trial court could have granted relief. In
               determining whether any facts will support the claim, we may
               look only to the complaint and the reasonable inferences to be
               drawn therefrom, and we may not rely upon any other evidence
               in the record. If a complaint states a set of facts which, even if
               true, would not support the relief requested therein, we will
               affirm the dismissal. Furthermore, we may affirm the trial
               court’s grant of a motion to dismiss if it is sustainable upon any
               theory.


       Weiss v. Indiana Parole Bd., 838 N.E.2d 1048, 1050 (Ind. Ct. App. 2005) (internal

       citations omitted), trans. denied.


[15]   At the outset, we note that Peterson has chosen to proceed pro se. It is well

       settled that pro se litigants are held to the same legal standards as licensed

       attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.

       denied. Thus, pro se litigants are bound to follow the established rules of

       procedure and must be prepared to accept the consequences of their failure to

       do so. Id. “We will not become a party’s advocate, nor will we address

       arguments that are inappropriate, improperly expressed, or too poorly

       developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct.

       App. 2005), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 8 of 11
[16]   Peterson argues that the trial court erred by dismissing his Second SORA

       Petition, in which he sought relief based on INDIANA CODE § 11-8-8-22(c)(1).

       This particular subsection provides, in relevant part, that a person may petition

       a trial court to “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[.]” I.C. § 11-8-8-22(c)(1).


[17]   On appeal, Peterson acknowledges that he has already received the relief set

       forth in INDIANA CODE § 11-8-8-22(c)(1) when the trial court issued its August

       2011 Order from his First SORA Petition. Specifically, he acknowledges that

       he is not required to register as a sex offender on the sex offender registry and

       that the DOC had removed all information about him from the online sex

       offender registry.


[18]   Peterson, however, contends that INDIANA CODE § 11-8-8-22(c)(1) provided a

       mechanism for him to petition the trial court to order the DOC to remove its

       internal designation of him as a sex offender and to challenge the future

       requirements that may be required with his participation in the SOMM

       program. He also contends that the DOC’s sex offender designation could

       subject him to “a threat of future prosecution and punishment” and that his

       required participation in the SOMM program will constitute ex post facto

       punishment. (Peterson’s Br. 8).




       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 9 of 11
[19]   Aside from the facts that Peterson’s arguments about the SOMM program are

       not contained on the face of his Second SORA Petition and his arguments

       about potential future events do not appear ripe for review, 4 Peterson cannot

       use the SORA statutory procedure in INDIANA CODE § 11-8-8-22 as a means to

       challenge the DOC’s internal designation or the SOMM program. INDIANA

       CODE § 11-8-8-22 sets forth the procedure for an offender to challenge his status

       under SORA and to seek removal of all information from the online sex

       offender registry.5 See Lockhart v. State, 38 N.E.3d 215, 217 (Ind. Ct. App.

       2015). See also Gonzalez v. State, 980 N.E.2d 312, 321 (Ind. 2013) (explaining

       that “Indiana Code Section 11-8-8-22 may be utilized only when there is an

       ameliorative change in federal or state law applicable to an offender’s prior

       conduct, Ind. Code § 11-8-8-22(b), (g), or when an offender files an ex post

       facto claim, Ind. Code § 11-8-8-22(j)”). INDIANA CODE § 11-8-8-22 does not

       provide a means to challenge the DOC’s internal procedures or its programs

       utilized as part of a defendant’s future parole.6




       4
         “Ripeness relates to the degree to which the defined issues in a case are based on actual facts[,] rather than
       on abstract possibilities, and are capable of being adjudicated on an adequately developed record.” Dixon v.
       Indiana Dep’t of Correction, 56 N.E.3d 47, 52 (Ind. Ct. App. 2016) (internal quotation marks and citation
       omitted).

       5
        An offender can also use INDIANA CODE § 11-8-8-22 when seeking to “register under less restrictive
       conditions.” I.C. § 11-8-8-22(c)(2).
       6
         Moreover, we have already held that participation in the SOMM program does not violate the ex post facto
       clause. See Patrick v. Butts, 12 N.E.3d 270, 271-72 (Ind. Ct. App. 2014) (rejecting a defendant’s contention
       that Wallace applied to the defendant’s participation in the SOMM program and explaining that “the Parole
       Board’s authority to impose conditions on parole [such as the SOMM program] is not limited by the date on
       which the program was created, but rather is limited by the program’s ability to reintegrate the parolee into
       society”).

       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018           Page 10 of 11
[20]   Here, at the time Peterson filed his Second SORA Petition, in which he sought

       relief based on INDIANA CODE § 11-8-8-22(c)(1), he was not required to register

       as a sex offender on the sex offender registry and he was not listed on the online

       sex offender registry. Because Peterson’s Second SORA petition failed to state

       a claim upon which relief could be granted, we affirm the trial court’s order

       granting the State’s motion to dismiss Peterson’s petition. See, e.g., Lockhart, 38

       N.E.3d at 218 (holding that a defendant—who had filed, pursuant to INDIANA

       CODE § 11-8-8-22, a petition to be removed from the sex offender registry and

       whose name did not appear on the registry at the time he had filed the

       petition—had failed to state a claim for which relief could be granted and

       affirming the trial court’s order dismissing the petition under Trial Rule

       12(B)(6)).


[21]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018   Page 11 of 11
