      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                             Mar 20 2015, 7:37 am
      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.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Daniel J. Vanderpool                                     Gregory Zoeller
      Vanderpool Law Firm, PC                                  Attorney General of Indiana
      Warsaw, Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joel Frazier,                                            March 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               85A05-1408-CR-383
              v.                                               Appeal from the Wabash Circuit
                                                               Court
                                                               The Honorable Robert R. McCallen,
      State of Indiana,                                        III, Judge
      Appellee-Plaintiff.                                      Cause No. 85C01-1402-FC-108




      Bradford, Judge.



                                            Case Summary
[1]   In 2001, Appellant-Defendant Joel Frazier was convicted of Class C Felony

      child molesting. Frazier was released from incarceration in 2003 and,


      Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015           Page 1 of 8
      according to statute, was required to register as a sex offender for ten years.

      Frazier was incarcerated for much of the following ten years and, during these

      periods of incarceration, the ten-year sexual offender registration period was

      suspended. In 2010, Frazier was convicted of Class D felony failure to register

      as a sex offender. In July of 2014, Frazier was again convicted for failing to

      register. His 2014 conviction was enhanced to a Class C felony pursuant to

      statute based on his prior failure to register. The trial court sentenced Frazier to

      eight years for the failure to register conviction and an additional ten years for

      being a habitual offender. On appeal, Frazier argues that (1) the tolling

      provision in the sexual offender registry statute is ambiguous and that he was

      no longer required to register after 2013, and (2) that the trial court improperly

      applied a double enhancement to his sentence. We affirm Frazier’s conviction

      but reverse the trial court’s sentence.



                            Facts and Procedural History
[2]   On December 31, 2001, Frazier pled guilty to Class C felony child molesting

      and was subsequently sentenced to a four-year term to be executed in its

      entirety. On December 4, 2003, Frazier was released from incarceration and

      registered as a sex offender pursuant to Indiana Code chapter 11-8-8. Frazier

      spent the subsequent eleven years in and out of incarceration for various crimes.


[3]   Frazier was arrested on March 8, 2004 for theft, to which he pled guilty and

      spent a total of 351 days incarcerated. Following a February 28, 2007

      conviction for driving while suspended, Frazier served twenty-four days in the

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      Wabash County Jail for violating home detention. On June 21, 2007, Frazier

      violated probation and served forty-nine days. Following two criminal cases in

      2008, Frazier was incarcerated from January 28, 2008, until February 9, 2010.

      On April 21, 2010, Frazier’s sex-offender registration mail was returned, and,

      on June 11, 2010, Frazier was charged with failure to register as a sex offender.

      Frazier pled guilty to the charge and was sentenced to five years with one year

      suspended to probation.


[4]   On January 16, 2014, Frazier was released from incarceration and reported to

      Tammi Monce, the local sex offender registry coordinator. Following his

      release, Frazier was temporarily staying at the Knights Inn while looking for a

      permanent residence. Monce informed Frazier that he was required report to

      her every seven days and that he must inform her when he found a new

      residence in order to update his registration information. Frazier checked out

      of the Knights Inn on January 25, 2014 but did not report the change to Monce,

      nor did he report to Monce on January 27, 2014, as he had been previously

      instructed. Frazier called Monce on January 29, 2014, informed her that he

      would be leaving the Knights Inn, and made an appointment to meet with her

      the following day. Monce was led to believe that Frazier was still residing at

      the Knights Inn but later found out he had checked out on January 25, 2014

      after contacting the hotel. Frazier testified that he was homeless and living

      under a bridge from January 25 to January 29, 2014. Monce informed Frazier

      that he was violating his reporting requirements by failing to provide an address

      for the registry and gave him until 5:00 p.m. on January 30, 2014 to provide her


      Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015   Page 3 of 8
      with updated address information. Frazier never provided an address, made no

      subsequent attempts to contact Monce, and had no further contact with Monce.


[5]   Frazier testified that he spent the following month “hiding out” in Fort Wayne

      until he was arrested on February 23, 2014 for failure to register as a sex

      offender. Tr. p. 116. On July 2, 2014, a jury found Frazier guilty of Class D

      felony failure to register as a sex offender. The conviction was enhanced to a

      Class C felony because Frazier had a prior conviction for failure to register as a

      sex offender. The trial court sentenced Frazier to eight years for the conviction

      and an additional ten years as a habitual offender enhancement.



                                Discussion and Decision
[6]   Frazier raises two issues on appeal: (1) whether the tolling provisions of the

      sexual offender registration statute are ambiguous; and (2) whether the trial

      court’s sentence amounted to an impermissible double enhancement.


                                      I. Standard of Review
[7]   We review matters of statutory interpretation de novo because they present

      questions of law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).

              Our primary goal in interpreting statutes is to determine and give effect
              to the Legislature’s intent. The best evidence of that intent is a
              statute’s text. The first step is therefore to decide whether the
              Legislature has spoken clearly and unambiguously on the point in
              question. When a statute is clear and unambiguous, we must apply
              the plain and ordinary meaning of the language. There is no need to
              resort to any other rules of statutory construction.


      Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015   Page 4 of 8
      Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012) (citations omitted). A statute is

      ambiguous when it is susceptible to more than one reasonable interpretation.

      Id. “Whether a particular double enhancement is permissible…is a matter of

      statutory interpretation.” Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012) aff’d on

      reh’g, 984 N.E.2d 625 (Ind. 2013).


                         II. Sex Offender Registration Period
[8]   Indiana Code section 11-8-8-19 provides the time period in which sex offenders

      are required to register in the sex offender registry.

              (a) Except as provided in subsections (b) through (e), a sex or violent
              offender is required to register under this chapter until the expiration of
              ten (10) years after the date the sex or violent offender:
                      (1) is released from a penal facility (as defined in [Indiana Code
                      section] 35-31.5-2-232) or a secure juvenile detention facility of
                      a state or another jurisdiction;
                      (2) is placed in a community transition program;
                      (3) is placed in a community corrections program;
                      (4) is placed on parole; or
                      (5) is placed on probation;
              for the sex or violent offense requiring registration, whichever occurs
              last. The registration period is tolled during any period that the sex or violent
              offender is incarcerated. The registration period does not restart if the
              offender is convicted of a subsequent offense. However, if the
              subsequent offense is a sex or violent offense, a new registration period
              may be imposed in accordance with this chapter.
      Ind. Code § 11-8-8-19 (emphasis added).


[9]   Frazier urges us to find that Section 11-8-8-19 is ambiguous and, therefore, that

      the rule of lenity would apply. Specifically, Frazier argues that the tolling

      Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015        Page 5 of 8
       section is ambiguous because it tolls the registration period during “any period

       that the sex or violent offender is incarcerated.” Ind. Code § 11-8-8-19. He

       argues that this could refer either to “any further periods of incarceration for the

       original offense,” or incarceration for any subsequent offense. Appellant’s Br.

       p. 14. We think there is only one reasonable interpretation of the statute and,

       therefore, that it is unambiguous.


[10]   “To effectuate legislative intent, we read the sections of an act together in order

       that no part is rendered meaningless if it can be harmonized with the remainder

       of the statute. We also examine the statute as a whole.” City of Carmel v. Steele,

       865 N.E.2d 612, 618 (Ind. 2007) (citations omitted). The statute breaks down

       into three distinct sections: (1) when the registration period begins, (2) when the

       period is suspended, and (3) when the period restarts. The first section states

       that the ten-year period begins, essentially, once the offender has been released

       from incarceration, i.e. is living among the public. The intent of the legislature

       is clear: that the public should be on notice of potentially dangerous offenders

       living in their community. Such notice is not necessary while the offender is

       incarcerated.


[11]   The second section of the statute governs periods when the ten-year term is

       suspended. The statute states that the registration period is “tolled” during

       “any period” in which the offender is incarcerated. Ind. Code § 11-8-8-19.

       While this could, on its own, be read to restart the ten-year period upon

       subsequent incarceration, the following section specifies that “[t]he registration

       period does not restart if the offender is convicted of a subsequent offense”

       Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015   Page 6 of 8
       unless the conviction is for a violent or sexual offense. Ind. Code § 11-8-8-19.

       Additionally, the final section is specific to subsequent offenses, while the

       tolling section includes “any period” that the offender is incarcerated. We do

       not think the legislature made this distinction arbitrarily. The only reasonable

       interpretation of the “tolling” section is that, during any period of incarceration

       for any offense, subsequent or related to the underlying offense, the ten-year

       registration period is suspended and will resume once the offender is re-released

       into the community. Frazier’s interpretation of the statute is unreasonable in

       that it reads into the statute language which is neither expressly present nor

       implied by the surrounding text.1


[12]   Under our reading of the statute, Frazier’s ten-year registration period was

       tolled each time he was incarcerated after his initial release from incarceration

       on December 3, 2003. Altogether, Frazier has been incarcerated for

       approximately six years since the registration period began. At the time of his

       2014 arrest, and without any additional convictions, Frazier’s registration

       period would have ended sometime in 2019. Accordingly, Frazier still had a

       duty to register at the time of his arrest. We affirm Frazier’s conviction for

       failure to register as a sex offender.




                1
                  In addition, it is worth noting that Frazier was clearly not mislead by the language of the statute.
       While testifying at trial, Frazier admitted that he was still under an obligation to register as a sex offender at
       the time of his arrest and knowingly breached that duty by absconding to Fort Wayne to “hide out.” Tr. p.
       116.

       Court of Appeals of Indiana | Memorandum Decision 85A05-1408-CR-383 | March 20, 2015                    Page 7 of 8
                                   III. Double Enhancement
[13]   Frazier argues that the trial court violated the rule against double enhancement

       by simultaneously elevating his offense from a Class D to a Class C felony and

       also imposing a ten-year sentence based on the habitual offender statute. The

       State concedes that this was an impermissible double enhancement and we

       agree. The court enhanced the Class D felony offense to a Class C felony

       pursuant to Indiana Code section 11-8-8-17(b), which provides for such an

       enhancement when an offender has a prior unrelated conviction for failure to

       register. Such an enhancement is known as a progressive-penalty statute. Dye,

       972 N.E.2d at 857. “The general rule is that, ‘absent explicit legislative direction, a

       sentence imposed following conviction under a progressive penalty statute may

       not be increased further under [] the general habitual offender statute.’” Id.

       (quoting State v. Downey, 770 N.E.2d 794, 796 (Ind. 2002)) (emphasis in

       original). There is no such explicit legislative direction regarding the relevant

       statutes in this case. Therefore, the trial court’s sentence was an impermissible

       double enhancement. We reverse the trial court’s sentence and remand with

       instructions that the habitual offender enhancement be vacated. The eight-year

       sentence for Class C felony failure to register remains unaffected.


[14]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded.


       Vaidik, C.J., and Kirsch, J., concur.



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