                                                                              FILED
                                                                         Oct 13 2017, 10:47 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Johnny L. Raley, Jr.                                       Curtis T. Hill, Jr.
      New Castle, Indiana                                        Attorney General of Indiana
                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Johnny L. Raley, Jr.,                                     October 13, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                88A04-1705-CR-1039
              v.                                                Appeal from the Washington
                                                                Superior Court.
                                                                The Honorable Joseph L. Claypool,
      State of Indiana,                                         Special Judge.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                88D01-0410-FA-341




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Johnny L. Raley, Jr., appeals the trial court’s denial of his motion to enforce

      plea agreement. We affirm.




      Court of Appeals of Indiana | Opinion 88A04-1705-CR-1039 | October 13, 2017                 Page 1 of 5
                                                      Issue
[2]   Raley raises one issue, which we restate as: whether the trial court erred in

      denying Raley’s motion to enforce plea agreement.


                                Facts and Procedural History
[3]   The State charged Raley with three counts of child molesting, all Class A

      felonies. In 2005, Raley executed a plea agreement with the State. He agreed

      to plead guilty to one count of child molesting as a Class B felony, and the State

      agreed to dismiss the remaining charges. The trial court accepted the

      agreement and sentenced Raley to serve twenty years, with seven years

      suspended to probation, per the terms of the agreement.


[4]   Raley served the executed portion of his sentence and was released to probation

      in 2011. On January 17, 2014, the State filed a petition to revoke Raley’s

      probation. After numerous delays, the State and Raley (who was at that time

      represented by counsel) reached an agreement. The parties agreed that Raley

      would admit to violating the terms of his probation, and Raley would serve

      three years of his previously-suspended sentence for the violation.


[5]   On February 29, 2016, the trial court accepted the parties’ agreement,

      sentencing Raley to serve three years. Staff at the Indiana Department of

      Correction informed Raley that upon his release, he would be required to

      register as a sexually violent predator (SVP) for life and to comply with the

      requirements imposed on SVPs.



      Court of Appeals of Indiana | Opinion 88A04-1705-CR-1039 | October 13, 2017   Page 2 of 5
[6]   On March 16, 2017, Raley, proceeding pro se, filed a motion to enforce plea

      agreement. He claimed he should not be designated as an SVP because that

      was not a term of the plea agreement. The court denied Raley’s motion

      without a hearing on April 18, 2017. This appeal followed.


                                    Discussion and Decision
[7]   Raley argues he should not be designated as an SVP because that would

      amount to an ex post facto punishment in violation of his federal and state

      constitutional rights. He did not raise this claim in his motion to enforce plea

      agreement, so it is waived. See Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App.

      2010) (due process claim waived because it was presented on appeal for the first

      time), trans. denied.


[8]   Raley’s next claim is that being designated as an SVP amounts to a

      fundamental alteration of the parties’ plea agreement and renders the agreement

      void. He did not present this argument to the trial court in his motion to

      enforce plea agreement, so it is also waived. See id.


[9]   Waiver notwithstanding, Raley’s contractual claim is without merit. A

      defendant who commits a predicate offense such as child molesting, and who is

      released from incarceration after 1994, is an SVP “by operation of law.” Ind.

      Code § 35-38-1-7.5 (2014). The SVP designation thus is a separate statutory

      classification that has nothing to do with the terms of the parties’ plea

      agreement and does not render the agreement void. Indeed, Raley obtained the

      benefits of his bargain with the State: being convicted of a lesser offense than

      Court of Appeals of Indiana | Opinion 88A04-1705-CR-1039 | October 13, 2017   Page 3 of 5
       the three Class A felonies with which he had been charged, and receiving a

       lower sentence than he might have received if the case had gone to trial and he

       had been convicted. Similarly, the State benefitted by obtaining a conviction

       and by not having to expend resources taking the case to trial.


[10]   Raley argues that both the State and the trial court are bound by the terms of

       the plea agreement. We agree that once a trial court accepts a plea agreement,

       the court is bound by its terms “insofar as said terms are within the power of the

       trial court to order.” Griffin v. State, 461 N.E.2d 1123, 1124 (Ind. 1984). Here,

       the terms of the plea agreement did not preclude SVP status, nor could the trial

       court have excused Raley from being designated as an SVP pursuant to Indiana

       Code section 35-38-1-7.5. The court did not have the power to ignore a

       statutory mandate.


[11]   Raley cites Badger v. State, 637 N.E.2d 800 (Ind. 1994), in support of his claim,

       but that case is distinguishable. In Badger, the question was whether the trial

       court had the authority to allow the State to withdraw a plea agreement before

       the court approved it. The Indiana Supreme Court concluded the trial court

       had discretion to decide whether to allow the agreement to be withdrawn and

       did not abuse its discretion because Badger was not prejudiced by withdrawal

       and had not detrimentally relied on the agreement. The holding in Badger is

       inapplicable here because the State never sought to withdraw the plea

       agreement with Raley. Raley has failed to demonstrate the trial court erred in

       denying his motion to enforce plea agreement.



       Court of Appeals of Indiana | Opinion 88A04-1705-CR-1039 | October 13, 2017   Page 4 of 5
                                                 Conclusion
[12]   For the reasons stated above, we affirm the judgment of the trial court.


[13]   Affirmed.


       Mathias, J., and Crone, J., concur.




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