                                                                            FILED
                                                                      Apr 09 2020, 10:47 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Scott A. Norrick                                            Curtis T. Hill, Jr.
Anderson, Indiana                                           Attorney General of Indiana
                                                            David A. Arthur
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Trent Dean McPhearson,                                      April 9, 2020
Appellant-Petitioner,                                       Court of Appeals Case No.
                                                            19A-MI-3035
        v.                                                  Appeal from the Madison Circuit
                                                            Court
State of Indiana,                                           The Honorable Angela Warner
Appellee-Respondent                                         Sims, Judge
                                                            Trial Court Cause No.
                                                            48C01-1801-MI-51



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                               Page 1 of 11
[1]   In early 2018, Trent McPhearson filed a petition to have his name removed

      from the Indiana Sex Offender Registry, serving notice of this petition only on

      the Madison County Prosecuting Attorney. Following an April 23, 2018,

      hearing on the matter, the trial court granted McPhearson’s petition for

      removal. Shortly thereafter, on May 17, 2018, the Deputy Attorney General

      intervened on behalf of the Department of Correction (DOC) and filed a

      motion to correct error, arguing that the Attorney General’s office had not been

      given notice as required by statute. On June 3, 2018, the trial court granted the

      Deputy Attorney General’s motions, thereby vacating the order for removal.

      Following a subsequent April 9, 2019, removal hearing, the trial court denied

      McPhearson’s petition for removal on December 4, 2019. Now, McPhearson

      appeals, arguing that the trial court erred by (1) granting the Deputy Attorney

      General’s1 motions to intervene and correct error; and (2) denying his petition

      for removal. Finding no error on either front, we affirm.


                                                        Facts
[2]   On March 27, 1998, McPhearson pleaded guilty to gross sexual assault in the

      state of Maine. Following his release from incarceration on January 17, 2003,

      McPhearson was required to register as a sex offender in Maine and in Indiana,

      where McPhearson has since resided. At the time of McPhearson’s release,




      1
       As with most opinions, we traditionally refer to the Attorney General and its attendant officers as “the
      State.” However, in this case, because numerous entities representing the State are present and because the
      question of which entity should have been notified of and involved in these proceedings strikes at the heart of
      McPhearson’s case, we will refer to the individual officers by their official titles throughout this opinion.

      Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                   Page 2 of 11
      Maine required sex offenders to register for life, whereas Indiana required them

      to register only for ten years. In 2006, Indiana amended its sex offender

      registration statutes by requiring certain sexual offenders, depending on the

      nature and circumstances of their crimes, to register for life. McPhearson

      admitted that his crime in Maine consisted of “touching the victim’s vagina

      with [his] hand and with his penis[.]” Tr. Vol. II p. 6. Subsequently,

      McPhearson continued to register as a sex offender in Indiana in compliance

      with these changes.


[3]   However, in 2015, the Maine appellate courts found that the state’s statutory

      sex offender registry requirements as applied to individuals like McPhearson—

      who had been convicted before 1999—were unconstitutional because they

      violated ex post facto principles. Accordingly, McPhearson was removed from

      Maine’s sex offender registry on July 28, 2015.


[4]   On January 18, 2018, McPhearson filed a petition for removal from Indiana’s

      Sex Offender Registry. He served his petition solely on the Madison County

      Prosecuting Attorney. The trial court set the matter for an April 23, 2018,

      hearing, notifying only McPhearson’s counsel and the Madison County

      Prosecutor’s Office. Following the hearing, and without objection from the

      Madison County Prosecuting Attorney, the trial court granted McPhearson’s

      petition for removal and notified the DOC for the first time.


[5]   On May 17, 2018, the Deputy Attorney General appeared on behalf of the

      DOC and filed motions to intervene in the proceedings and to correct error,


      Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020         Page 3 of 11
      both of which the trial court granted on June 3, 2018. Consequently, the trial

      court vacated its order granting McPhearson’s petition for removal. A new

      hearing took place on April 9, 2019. On December 4, 2019, the trial court

      denied McPhearson’s petition for removal.2 McPhearson now appeals.


                                    Discussion and Decision
                     I. Motions to Intervene and Correct Error
[6]   First, McPhearson argues that the trial court erred when it granted the Deputy

      Attorney General’s motions to intervene and correct error. Specifically,

      McPhearson contends that pursuant to Indiana statutory law, he and the trial

      court had to provide notice of his petition only to the local prosecutor’s office

      and not to the Attorney General’s office. This is an issue of statutory

      interpretation, and “[o]ur usual standard of review for the interpretation of

      statutes is de novo.” Cooper v. State, 760 N.E.2d 660, 664 (Ind. Ct. App. 2001).


[7]   Pursuant to Indiana Code section 11-8-8-22(e):


              (e) After receiving a petition [for removal] . . . , the [trial] court
              may:

                       (1) summarily dismiss the petition; or

                       (2) give notice to:

                                (A) the department;



      2
        The record does not indicate why there was such a lengthy delay between the April 9, 2019, hearing and the
      trial court’s December 4, 2019, order.

      Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                Page 4 of 11
                                 (B) the attorney general;

                                 (C) the prosecuting attorney of:

                                           (i) the county where the petition was filed;

                                           (ii) the county where offender was most
                                           recently convicted of an offense listed in
                                           section 5 of this chapter; and

                                           (iii) the county where the offender resides; and

                                 (D) the sheriff of the county where the offender
                                 resides;

                        and set the matter for hearing. The date set for a hearing
                        must not be less than sixty (60) days after the court gives
                        notice under this subsection.


      (Emphasis added).


[8]   We have previously analyzed this statutory section and held that “the trial court

      must either summarily dismiss [the petition] or give notice to several

      government actors and set the matter for a hearing before proceeding.” In re

      State of Ohio Conviction Against Gambler, 939 N.E.2d 1128, 1131-32 (Ind. Ct.

      App. 2011) (emphasis added). Stated another way, it is a requirement—not a

      suggestion—that a trial court ensure that four government officers are notified

      of a petition for removal before a hearing on that petition is held.3




      3
        Despite his best efforts, McPhearson is incorrect in his interpretation of this statute. Here, the word “may”
      does not imply that a trial court can choose whether to give notice to the department, the attorney general,
      the prosecuting attorney, and the county sheriff. Rather, the term “may” allows a trial court to affirmatively


      Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                    Page 5 of 11
[9]    And in this case, the trial court initially failed to do just that. McPhearson

       admitted that when he originally filed his petition for removal, he notified only

       the Madison County Prosecuting Attorney. And even the trial court admitted

       that it did not provide notice to the DOC, the Attorney General’s office, or the

       county sheriff. Those parties were not notified until after the trial court granted

       McPhearson’s petition, and that was done only to have those actors remove

       McPhearson’s name from the registry. As such, when the Deputy Attorney

       General filed its motion to intervene, the trial court took the right step by

       correcting its own error, vacating the removal order, and setting the matter for a

       later hearing so that all notified parties could appear.


[10]   Thus, the trial court did not err when it granted the Deputy Attorney General’s

       motions to intervene and to correct error.4


                                       II. Petition for Removal
[11]   Next, McPhearson argues that the trial court erred by denying his petition for

       removal from Indiana’s Sex Offender Registry. Specifically, McPhearson argues

       that the trial court violated Indiana’s prohibition against ex post facto laws



       do one of two things: summarily dismiss the petition or notify the proper government actors and subsequently
       hold a hearing. After a trial court decides to do one or the other, it has to then abide by all statutory
       requirements.
       4
         McPhearson is correct in pointing out that Indiana Trial Rule 59(A) permits motions to correct error only in
       limited circumstances involving the discovery of pertinent evidence, excessive jury verdicts, etc. However,
       Trial Rule 24(A)(1) allows for any party to intervene upon timely motion if a statute confers on them an
       unconditional right to intervene. And in this case, the Attorney General’s office had a right under the
       removal statute to notice and, consequently, an appearance at McPhearson’s removal hearing. The fact that
       this matter is now being heard on direct appeal further undercuts McPhearson’s argument that the proper
       procedure has not been followed.

       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                 Page 6 of 11
       because the sex offender registry amendment lengthening his registration

       requirement is unconstitutional as applied to him. “[W]here, as here, a

       constitutional violation is alleged, the proper standard of appellate review is de

       novo.” Dycus v. State, 108 N.E.3d 301, 304 (Ind. 2018). Additionally, as a

       reminder, if there is a question regarding statutory interpretation, the standard

       of review is de novo. Quinn v. State, 45 N.E.3d 39, 44 (Ind. Ct. App. 2015). It is

       the petitioner that bears the burden of proving that he is entitled to relief—

       namely, removal from the registry. I.C. § 11-8-8-22(h).


[12]   There are two different kinds of individuals who, if they have been convicted of

       sex crimes in other jurisdictions, must register as sex offenders in the state of

       Indiana: (1) those who are required to register as a sex offender in any other

       jurisdiction; and (2) those who have committed a crime “under the laws of

       another jurisdiction, including a military court, that is substantially equivalent

       to any of the offenses listed in this subsection.” Ind. Code § 11-8-8-4.5(a)(22), -

       4.5(b)(1). The first provision does not apply to McPhearson because Maine

       determined that he would no longer have to register as a sex offender there. As

       such, we will focus solely on the second provision.


[13]   The offenses listed in this statutory subsection include sexual battery. Id. at § 11-

       8-8-4.5(a)(10). A person commits sexual battery in Indiana when he—with the

       intent to arouse or satisfy his own sexual desires or the sexual desires of another

       person—touches another person when that person is compelled to submit to the

       touching by force or the imminent threat of force, or is so mentally disabled or

       deficient that consent to the touching cannot be given. Ind. Code § 35-42-4-8(a).

       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020           Page 7 of 11
       Pursuant to Maine Code section 17-2-11-253(1)(A) and -253(2)(C), a person

       commits gross sexual assault when he engages in a sexual act with another

       person and that other person submits as a result of compulsion or the other

       person suffers from a mental disability or otherwise has been rendered

       incapable of giving consent. And from what we know about McPhearson’s

       criminal offense in Maine, it consisted “of touching the victim’s vagina with

       McPhearson’s hand and with his penis[.]” Tr. Vol. II p. 6. Therefore, in looking

       at the record and the similarities between the two criminal statutes, we find that

       McPhearson committed a crime in another jurisdiction substantially equivalent

       to the offense of sexual battery in Indiana.


[14]   In other words, McPhearson is required to register in Indiana not based on his

       previous obligation to register in Maine—which no longer exists—but rather

       because he was convicted of a crime in Maine that is substantially equivalent to

       a sexual offense proscribed under Indiana law. And he was always required to

       register as a sexual offender in Indiana on that basis alone, irrespective of his

       registration status in Maine. As such, McPhearson cannot rely on the Maine

       appellate courts’ decision that removed him from Maine’s sex offender registry

       to say that his requirement to register for life in Indiana automatically violates

       ex post facto principles.5 This will require a separate analysis.




       5
         Thus, despite McPhearson’s contentions, our Supreme Court’s decision in State v. Zerbe, 50 N.E.3d 368
       (Ind. 2016), does not easily parallel with McPhearson’s situation. In Zerbe, the defendant was required to
       register solely based on his conviction from the state of Michigan. Id. at 369. Here, McPhearson was


       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                  Page 8 of 11
[15]   Under Article 1, Section 24 of the Indiana Constitution, “[n]o ex post facto law,

       or law impairing the obligation of contracts, shall ever be passed.” “An ex post

       facto law is one that ‘imposes a punishment for an act which was not

       punishable at the time it was committed; or imposes additional punishment to

       that then prescribed.’” Rogers v. State, 958 N.E.2d 4, 7 (Ind. Ct. App. 2011)

       (quoting Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009)). In this instance, we

       must determine whether, as applied to McPhearson, the Indiana sex offender

       registry amendment that increased the registration requirement from ten years

       to life violates ex post facto principles. We find that it does not.


[16]   Our Supreme Court’s decision in Tyson v. State, 51 N.E.3d 88 (Ind. 2016), is

       instructive for our analysis. In that case, Tyson had been adjudicated delinquent

       in the state of Texas in 2002 for crimes that would be aggravated sexual assault

       and indecency and was required to register as a sex offender in that state for

       twelve years. Id. at 89. Tyson later moved to Indiana in 2009. Id. In 2012, he

       was pulled over for driving with an expired license plate. Id. The police ran a

       search of Tyson’s record and discovered that he had not registered as a sex

       offender in Indiana. Id. After first determining that Tyson did, in fact, fall under

       the definition of a sexual offender in Indiana, our Supreme Court then turned to

       whether requiring him to register here as a sex offender would violate ex post

       facto principles.




       independently required to register because he had pleaded guilty to committing a crime in Maine
       substantially equivalent to that proscribed in Indiana.

       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                                  Page 9 of 11
[17]   The Tyson Court held that “[t]he principle fundamental to this [ex post facto]

       prohibition is that people have a right to fair warning of the criminal penalties

       that may result from their conduct.” Id. at 92. And for those who have already

       had to register as sex offenders before the Indiana amendments were passed and

       even for those who already had to register in other jurisdictions, “the challenged

       amendments merely lengthened that requirement.” Id. at 96. Indeed the Tyson

       Court definitively held that:


               Finding Tyson 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.; see also Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009) (holding that the

       amendment to Indiana’s sex offender registry act lengthening the mandatory

       registration period for offenders from ten years to life did not violate ex post

       facto principles as applied to a criminal defendant who had already been on

       notice about registering and had already been required to register).


[18]   This analysis likewise applies to McPhearson’s case. We have already

       determined that McPhearson is required to register as a sex offender and that he

       must maintain that registration in Indiana by virtue of the nature of the crime to

       which he had pleaded guilty in Maine, not simply because he had to register in

       Maine. Further, we found that McPhearson had committed in Maine what




       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020          Page 10 of 11
       would be sexual battery in Indiana, a serious sexual crime.6 And because he

       was already on notice of his registration requirements by the time he moved to

       Indiana, McPhearson was fully aware of his obligation to register.7 Therefore,

       he would also have been on notice of the sex offender registry amendment,

       which, as we have held before, does not violate ex post facto principles under

       the Indiana Constitution for those who have committed certain egregious sex

       crimes and who have already been subject to these Indiana laws.


[19]   Thus, in evaluating Indiana precedent and the particular circumstances of

       McPhearson’s case, we find that the trial court did not err when it denied his

       petition for removal.


[20]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       6
           See generally I.C. § 11-8-8-19(d).
       7
        In fact, McPhearson continued to register as a sex offender in Indiana beyond 2013, the year in which his
       previously-prescribed ten-year registration period would have terminated. This further undercuts any
       contention by McPhearson that he was blindsided by the 2006 amendments and was never on notice of his
       obligation to register for life.

       Court of Appeals of Indiana | Opinion 19A-MI-3035| April 9, 2020                               Page 11 of 11
