                                                                           FILED
                                                                      Jul 31 2019, 10:08 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bryan L. Ciyou                                             Curtis T. Hill, Jr.
Ciyou & Dixon, P.C.                                        Attorney General of Indiana
Indianapolis, Indiana                                      Natalie F. Weiss
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Reid Cowan,                                                July 31, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           19A-MI-402
        v.                                                 Appeal from the Allen Superior
                                                           Court
Robert E. Carter,                                          The Honorable Frances C. Gull,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           02D05-1810-MI-954



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019                               Page 1 of 10
                                  Case Summary and Issue
[1]   Reid Cowan appeals the trial court’s dismissal of his petition for writ of habeas

      corpus that alleged the Indiana Department of Correction (“DOC”) is

      unlawfully subjecting him to lifetime parole. Concluding that Cowan is subject

      to the lifetime parole requirement, we affirm.



                              Facts and Procedural History
[2]   The facts, primarily taken from Cowan’s petition, are that in April 2006,

      Cowan committed the offense of possessing child pornography in Michigan. In

      June 2007, he was convicted pursuant to a plea agreement for the charge of

      child sexually abusive activity1 and in August 2007, he was sentenced to eleven

      months, all suspended, and a five-year probationary period. He was also

      required to register in Michigan as a sex offender for twenty-five years. See

      Appellant’s Amended Appendix, Volume 2 at 35. When Cowan later moved to

      Indiana, his probation was transferred here.


[3]   In November 2007, Cowan had sexual contact with a fourteen-year-old in

      Indiana. As a result of this contact, Cowan was charged in December 2007

      with three counts of sexual misconduct with a minor, all Class B felonies, and

      one count of criminal confinement. In January 2008, he was convicted




      1
          Mich. Comp. Laws § 750.145c(2).


      Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019         Page 2 of 10
      pursuant to a plea agreement of two counts of sexual misconduct with a minor

      and sentenced to ten years in the DOC.


[4]   Cowan completed his Indiana sentence in November 2017 and was

      subsequently notified by the DOC that he was classified as a sexually violent

      predator (“SVP”) due to his two sex crime convictions. This status subjected

      him to lifetime parole.


[5]   In October 2018, Cowan filed a Petition for Writ of Habeas Co[r]pus objecting

      to his classification as an SVP and the imposition of lifetime parole because the

      “law enabling lifetime parole, and the amended definition of an SVP became

      effective July 1, 2006, three months after [he] committed the Michigan offence

      [sic] on April 1, 2006.” Id. at 12.2            Cowan therefore argued the application of

      these laws to him violate the ex post facto clauses of the state and federal

      constitutions. See id. at 13 (citing U.S. Const. art. I, § 10 and Ind. Const. art. 1,

      § 24).


[6]   The DOC filed a motion to dismiss Cowan’s petition for failure to state a claim

      upon which relief could be granted, inasmuch as there is no ex post facto

      violation in part because Cowan “is an SVP by operation of law because he

      committed his Indiana crime while required to register as a sex offender




      2
       Robert Carter, Commissioner of the Indiana Department of Correction, is named as the defendant because
      “[h]e is responsible for the implementation and enforcement of lifetime parole[.]” Id. at 10.

      Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019                            Page 3 of 10
      because of his Michigan crime.” Id. at 27 (citing Ind. Code § 11-8-8-5(b)(1)).

      The trial court dismissed Cowan’s petition. Cowan now appeals.



                                  Discussion and Decision
                                      I. Standard of Review
[7]           A motion to dismiss for failure to state a claim tests the legal
              sufficiency of the claim, not the facts supporting it. When ruling
              on a motion to dismiss, the court must view the pleadings in the
              light most favorable to the nonmoving party, with every
              reasonable inference construed in the non-movant’s favor. We
              review a trial court’s grant or denial of a Trial Rule 12(B)(6)
              motion de novo. We will not affirm such a dismissal unless it is
              apparent that the facts alleged in the challenged pleading are
              incapable of supporting relief under any set of circumstances.


      Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal citations and

      quotations omitted).


                                         II. Cowan’s Status
[8]   Cowan frames his issue on appeal as whether the definition of a sex or violent

      offender found in Indiana Code section 11-8-8-5(b)(1), which became effective

      on July 1, 2006, can be applied to him for an act that occurred on April 1, 2006.

      See Amended Brief of Appellant at 12. Essentially, Cowan argues that because

      he committed his offense in Michigan prior to the amendment to section 11-8-8-

      5(b), he was not required to register as a sex offender in Indiana for that offense

      and therefore, he was not a sex or violent offender subject to Indiana’s


      Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019             Page 4 of 10
       registration requirements when he committed the Indiana offenses and cannot

       be classified as an SVP subject to lifetime parole.


[9]    The State argues Cowan has waived the issue of whether he was required to

       register in Indiana because of his Michigan conviction by not raising it in the

       trial court. Cowan may not have specifically articulated his argument in these

       words in his petition, but he did argue that the “‘previously unrelated

       conviction’ that triggered [his] lifetime parole . . . occurred on April 1, 2006,

       three months before Indiana Code § 35-38-1-7.5(b)(2) and Indiana Code 11-8-8-

       5 went into effect.” Appellant’s Amended App., Vol. 2 at 17. Essentially, his

       argument to the trial court was that the “scheme of law that requires [Cowan]

       to be placed on lifetime parole was not in place when [he] committed the

       Michigan crime.” Id. at 21. Because of the way the statutes are interrelated,

       this is broad enough to encompass his current argument and we decline to

       decide this case on waiver.


[10]   On April 1, 2006, when Cowan committed his Michigan offense, Indiana Code

       section 5-2-12-4, the precursor to Indiana Code section 11-8-8-5, defined a “sex

       or violent offender” as a person who had been convicted of any of fourteen

       listed sex or violent offenses, Ind. Code § 5-2-12-4(a), and included a delinquent

       act by a child who met certain conditions, Ind. Code § 5-2-12-4(b). On July 1,

       2006, section 5-2-12-4 was repealed and replaced by Indiana Code section 11-8-

       8-5, which increased the number of crimes which qualify a person as a sex or

       violent offender and amended subsection (b) to include not only a delinquent

       child in the definition of a sex or violent offender but also “a person who is

       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019           Page 5 of 10
       required to register as a sex or violent offender in any jurisdiction[.]” Ind. Code

       § 11-8-8-5(b)(1). A sex or violent offender who resides in Indiana is required to

       register under chapter 11-8-8. Ind. Code § 11-8-8-7(a)(1).3


[11]   Cowan’s main assertion, that the date he committed his out of jurisdiction

       offense determines whether he can be classified a sex or violent offender

       pursuant to section 11-8-8-5, has already been decided against his position. In

       Tyson v. State, 51 N.E.3d 88 (Ind. 2016), the defendant was adjudicated

       delinquent in 2002 in Texas for a crime requiring that he register as a sex

       offender until 2014. At the time of his offense, he would not have had to

       register in Indiana if he moved here, but in 2006, the statute defining who is

       required to register was amended as described above to include a person who is

       required to register in any other jurisdiction. In 2009, the defendant moved to

       Indiana, and a few years later, a police officer who pulled him over for driving

       with an expired license discovered that he was required to (and did) register as a

       sex offender in Texas but had not registered in Indiana. The State charged the

       defendant with failure to register as a sex offender. See Ind. Code § 11-8-8-

       17(a). The defendant moved to dismiss the charge, “arguing that enforcing the

       registry requirement constituted an ex post facto violation since his offense

       occurred before the change to [Indiana’s] definition of sex offender took effect.”




       3
         Indiana Code section 11-8-8-7 describes who is required to register; section 11-8-8-19 states the duration of
       the obligation to register. “A person who is required to register as a sex or violent offender in any jurisdiction
       shall register for the period required by the other jurisdiction or the period described in this section,
       whichever is longer.” Ind. Code § 11-8-8-19(f).

       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019                                     Page 6 of 10
       Tyson, 51 N.E.3d at 90. The trial court denied his motion, and our supreme

       court affirmed:


               [T]he effects of the amended definition of sex offender in Indiana
               Code section 11-8-8-5(b)(1), as applied to [the defendant], are
               regulatory and non-punitive. This outcome makes sense in light
               of other as-applied ex post facto challenges to the Sex Offender
               Registration Act we’ve previously considered: unlike Wallace [v.
               State, 905 N.E.2d 371 (Ind. 2009)], where the offender had no
               obligation to register anywhere before the Act was passed, [the
               defendant] was required to register in Texas years before our
               statutory definition was amended to include him. His
               circumstances are much more similar to those in Jensen [v. State,
               905 N.E.2d 384 (Ind. 2009)], and [Lemmon v.] Harris [949 N.E.2d
               803 (Ind. 2011)], where both offenders already had to register;
               the challenged amendments merely lengthened that requirement.
               We simply cannot say that transferring the obligation upon
               moving is any more punitive than lengthening it to potentially
               last a lifetime.


               Finding [the defendant] merely maintained his sex offender
               status across state lines, we conclude he has failed to show the
               amended definition retroactively punishes him in violation of our
               Constitution’s prohibition against ex post facto laws.


       Id. at 96.


[12]   Although the context of this case and Tyson are different, the principle is the

       same: just as the defendant in Tyson could be charged with failure to register in

       Indiana despite the fact that his out-of-state offense pre-dated the amendment to

       section 11-8-8-5(b), Cowan fell within the statutory definition of a sex or violent

       offender as it existed when he moved to Indiana despite the fact his Michigan

       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019          Page 7 of 10
       offense pre-dated the amendment. In other words, it is the status of the

       offender when he or she comes to Indiana that matters for purposes of the

       definition, not the date of the offense. When Cowan moved to Indiana, he was

       a sex offender obligated to register in Michigan and he merely maintained that

       status and the corresponding obligations when he crossed state lines; he suffered

       no additional burden by being subject to the Indiana registration requirement

       then in effect. Cf. State v. Zerbe, 50 N.E.3d 368, 370-71 (Ind. 2016) (holding, in a

       case seeking removal from the sex offender registry, that the amended definition

       of sex or violent offender is non-punitive; “although the amended definition

       results in the affirmative obligation to notify another state government . . ., the

       significant responsibilities with respect to [the defendant’s] registration are

       merely maintained across state lines, to be fulfilled where he currently lives and

       works”).


[13]   Cowan cites Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in support of his

       position, asserting that the decisions in Tyson and Zerbe are “directly opposite to

       the reasoning it espoused in Hevner[.]” Reply Br. of Appellant at 10. Hevner did

       hold that the retroactive application of an amended statute that required the

       defendant, a first-time possessor of child pornography, to register as a sex

       offender was an ex post facto violation. 919 N.E.2d at 113. In Hevner, the

       defendant committed his crime in 2005 and at that time, a person convicted for

       the first time of possessing child pornography was not considered a sex

       offender. The statute was amended while he was awaiting trial to add first time

       possession to the list of crimes qualifying a person as a sex offender and when


       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019           Page 8 of 10
       the defendant was convicted in 2008, he was ordered to register. Our supreme

       court held this imposed a burden that added punishment “beyond that which

       could have been imposed when [the defendant’s] crime was committed.” Id.

       However, Hevner did not address a defendant who already had sex offender

       status at the time the statute changed. Therefore, Hevner is not inconsistent with

       Tyson or Zerbe and does not help Cowan. Pursuant to the decisions of our

       supreme court, when Cowan came to Indiana, he was a sex or violent offender

       because he was required to register in Michigan.


[14]   The fact that Cowan is a sex or violent offender as defined by section 11-8-8-

       5(b)(1) in turn determines whether or not he is an SVP subject to lifetime

       parole. As relevant to this case, Indiana Code section 35-38-1-7.5(b)(2) states

       that a person who “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 an SVP.4

       When Cowan committed sexual misconduct with a minor in Indiana in

       November 2007, he already had an unrelated conviction for a sex offense in

       Michigan for which he was required to register under chapter 11-8-8. He is

       therefore an SVP as defined by statute. And Indiana Code section 35-50-6-1(e),

       which states that when an SVP completes his or her fixed term of




       4
        Indiana Code section 11-8-8-5.2 defines a “sex offense” as an offense listed in section 11-8-8-4.5(a). The list
       of crimes in section 11-8-8-4.5(a) includes sexual misconduct with a minor as a Class B felony. Ind. Code §
       11-8-8-4.5(a)(8). Cowan pleaded guilty to two counts of Class B felony sexual misconduct with a minor
       while he was still under the obligation to register for his Michigan conviction.

       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019                                   Page 9 of 10
       imprisonment, “the person shall be placed on parole for the remainder of the

       person’s life[,]” therefore applies.


[15]   Cowan was required to register in Michigan as a sex offender when he moved

       to Indiana, and at that time, a person who was required to register in another

       jurisdiction was defined as a sex or violent offender who was required to

       register here. Therefore, when Cowan committed a sex offense in Indiana, he

       had a previous unrelated conviction for a sex offense for which he was required

       to register which made him an SVP subject to lifetime parole. The DOC is not

       unlawfully subjecting him to that requirement and the trial court did not err in

       dismissing his petition arguing otherwise.



                                                Conclusion
[16]   The trial court did not err in dismissing Cowan’s petition because it is apparent

       that the facts alleged in his pleading are incapable of supporting relief under any

       set of circumstances. The judgment of the trial court is affirmed.


[17]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019         Page 10 of 10
