      MEMORANDUM DECISION
                                                                     May 12 2015, 9:25 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
      Cleverly Lockhart                                        Gregory F. Zoeller
      New Castle, Indiana                                      Attorney General of Indiana
                                                               Aaron T. Craft
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Cleverly Lockhart,                                       May 12, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               33A04-1412-MI-602
              v.                                               Appeal from the
                                                               Henry Circuit Court
      State of Indiana,                                        The Honorable Kit C. Dean Crane,
                                                               Judge
      Appellee-Respondent.
                                                               Cause No. 33C01-1410-MI-109




      Kirsch, Judge.

[1]   Cleverly Lockhart appeals the trial court’s order dismissing his petition to be

      removed from the Indiana Sex Offender Registry. He raises the sole issue of

      whether the trial court erred in dismissing his petition on the basis that he failed

      to state a claim upon which relief may be granted.


      Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015     Page 1 of 7
[2]   We affirm.


                                 Facts and Procedural History
[3]   During the months of January through March 1994, Lockhart sexually abused

      an eleven-year-old boy. On June 28, 1994, Lockhart was charged with three

      counts of Class B felony child molesting and one count of Class C felony child

      molesting and was later convicted by a jury of all the counts. On direct appeal,

      his convictions were affirmed, but this court vacated his sentence and remanded

      for resentencing. On remand, the trial court sentenced Lockhart to fifty-three

      years executed, and this court affirmed the denial of Lockhart’s subsequent

      motion to correct erroneous sentence. Lockhart is currently incarcerated in the

      New Castle Correctional Facility, and his earliest release date is July 21, 2021.


[4]   On July 1, 1994, the Indiana Sex Offender Registration Act (“SORA”) went

      into effect. SORA requires individuals convicted of certain crimes to register as

      a sex or a violent offender and for their information to appear on the Indiana

      Sex Offender Registry, which is accessible on the Internet. In Wallace v. State,

      905 N.E.2d 371 (Ind. 2009), our Supreme Court held that SORA violated the

      Ex Post Facto Clause of the Indiana Constitution as applied to a defendant who

      had committed his offenses, been convicted, and served his sentence prior to

      SORA becoming effective. Id. at 384.




      Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015   Page 2 of 7
[5]   On June 17, 2014, Lockhart received a notice1 from the Indiana Department of

      Correction (“DOC”), indicating the DOC’s intent to forward Lockhart’s

      “information to the appropriate authority so that [his] name and the

      accompanying information may be added to the State of Indiana Sex and

      Violent Offender Registry.” Appellant’s App. at 8. The notice also stated that

      Lockhart would be provided “additional information regarding your

      requirement to register with the local County Sheriff and other information

      regarding your obligations when your release documents are prepared and

      presented to you shortly before your release” from the DOC. Id.


[6]   On June 20, 2014, Lockhart wrote a letter to the DOC in accordance with the

      administrative appeal procedure set out in the notice. In his letter, Lockhart

      argued that Wallace barred the DOC from requiring him to register. He later

      wrote to a Ms. Young at the DOC,2 and on August 26, 2014, she responded as

      follows:

                 You should only be required to serve two years on parole as long [as]
                 you don’t violate. The registry laws may change before you[r] release
                 but as it stands now, you could be required to register unless you have
                 a court order stating you were removed from the registry. Parole could
                 still require you to register while on parole[.] [H]owever they usually
                 don’t for those people who have been removed [by] the courts.
      Id. at 10.




      1
          We observe that this notice received from Lockhart was not signed by a DOC staff member.
      2
       It is unclear what position Ms. Young holds at the DOC, or whether she is a DOC official or employee of a
      contractor who provides services at the facility where Lockhart is being held.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015             Page 3 of 7
[7]   Lockhart filed a “Verified Petition to Remove Defendant From Indiana’s Sex

      Offender Registry” pursuant to Indiana Code section 11-8-8-22 and relying on

      Wallace. Id. at 1-2. At the time the petition was filed, Lockhart did not appear

      on the Indiana Sex Offender Registry, and the State requested the trial court to

      take judicial notice of that fact. The State filed a motion to dismiss Lockhart’s

      petition for failure to state a claim on which relief may be granted pursuant to

      Indiana Trial Rule 12(B)(6) and contended that the trial court could not grant

      Lockhart’s requested relief because his name did not appear on the Sex

      Offender Registry. The trial court granted the State’s motion to dismiss, stating

      that, because Lockhart did not appear on the Sex Offender Registry, “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.”

      Id. at 24.


[8]   After the trial court’s order was issued, Lockhart filed a response to the State’s

      motion to dismiss that the trial court treated as a motion to reconsider. In it,

      Lockhart acknowledged that his name did not appear on the registry, but

      claimed his petition was ripe for determination because of the notice he

      received from the DOC that it intended to provide his information to the Sex

      Offender Registry. The trial court denied this motion. Lockhart now appeals.


                                     Discussion and Decision
[9]   Lockhart appeals the trial court’s grant of the State’s motion to dismiss his

      petition under Indiana Trial Rule 12(B)(6). We review the trial court’s grant or

      denial of such a motion to dismiss pursuant to Trial Rule 12(B)(6) de novo.
      Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015   Page 4 of 7
       Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App. 2014) (citing

       Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)),

       trans. denied. A motion to dismiss under Trial Rule 12(B)(6) “‘tests the legal

       sufficiency of a complaint: that is, whether the allegations in the complaint

       establish any set of circumstances under which a plaintiff would be entitled to

       relief.’” Veolia Water Indpls., LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 4 (Ind.

       2014) (quoting Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind.

       2006)), clarified on reh’g, 12 N.E.3d 240. When evaluating the trial court’s grant

       or denial of a Trial Rule 12(B)(6) motion, we accept as true the facts alleged in

       the complaint, and only consider the pleadings in the light most favorable to the

       plaintiff and draw every reasonable inference in favor of the non-moving party.

       Snyder, 20 N.E.3d at 550. We will affirm a dismissal under Trial Rule 12(B)(6)

       only if it is apparent that the facts alleged in the complaint are incapable of

       supporting relief under any set of circumstances. Id. (citing LBM Realty, LLC v.

       Mannia, 981 N.E.2d 569, 577 (Ind. Ct. App. 2012)).


[10]   Lockhart argues that the trial court erred in dismissing his petition to remove

       his name from the Sex Offender Registry. He contends that, at the time he was

       notified of the State’s intention to provide his information to the Sex Offender

       Registry, he was subject to ex post facto punishment due to the fact that his

       criminal offenses were committed prior to SORA becoming effective. He

       alleges that requiring him to register imposes retroactive punishment when his

       crimes were committed before SORA required registration.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015   Page 5 of 7
[11]   Lockhart filed his petition to remove his name from the Sex Offender Registry

       pursuant to Indiana Code section 11-8-8-22, which provides the procedure by

       which a person who has been designated a sex offender may petition the trial

       court to remove the person’s designation as a sex offender and order the

       removal of all information from the Sex Offender Registry or to require the

       person to register under less restrictive conditions. Ind. Code § 11-8-8-22(c).

       The statute states that the petition may be based on a claim that the registration

       requirement constitutes ex post facto punishment. I.C. § 11-8-8-22(j). Under its

       plain language, Indiana Code section 11-8-8-22 provides the procedures for

       removal from the Sex Offender Registry to those individuals who have already

       been designated as sex offenders and have been required to register as such.

       I.C. § 11-8-8-22(b), (c). At the time that Lockhart filed his petition, his name

       did not appear on the Sex Offender Registry, nor did he even allege that it did.


[12]   Lockhart alleges that the State imposed ex post facto punishment on him when

       it sent him notice that it intended, in the future, shortly before his release from

       incarceration, which was still at least six years away, to require him to register

       as a sex offender. At the time he filed his petition, no registration requirement

       was presently being imposed on him, nor would such a registration requirement

       be imposed in the immediate future. Thus, when Lockhart filed his petition to

       remove his name from the Sex Offender Registry, he was not subject to any ex

       post facto punishment. As Lockhart’s petition sought only that his name be

       removed from the Sex Offender Registry and not declaratory or injunctive relief

       preventing the DOC from requiring him to register in the future, his petition


       Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015   Page 6 of 7
       does not on its face state a claim for relief under Indiana Code section 11-8-8-

       22. We, therefore, conclude that the trial court did not err in dismissing

       Lockhart’s petition pursuant to Trial Rule 12(B)(6) for failure to state a claim

       upon which relief may be granted.


[13]   Affirmed.


[14]   Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1412-MI-602 | May 12, 2015   Page 7 of 7
