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:

ERIC M. KYNER                                     GREGORY F. ZOELLER
New Castle, Indiana                               Attorney General of Indiana

                                                  GEORGE P. SHERMAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE                                        Jul 16 2013, 9:03 am

                    COURT OF APPEALS OF INDIANA

ERIC M. KYNER,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 49A02-1301-PC-124
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Marc Rothenberg, Judge
                             Cause No. 49G02-0605-PC-086248




                                        July 16, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

          Eric M. Kyner, pro se, appeals the post-conviction court’s denial of his petition

for post-conviction relief. He raises several issues, which we consolidate and restate as

follows:     1) whether the post-conviction court erred in concluding that Kyner was

properly designated as a sexually violent predator, and 2) whether the post-conviction

court erred in concluding that he was properly placed on parole. Finding no error, we

affirm.

                                Facts and Procedural History

          In 2006, Kyner was charged with burglary, a Class A felony; rape, a Class B

felony; criminal confinement, a Class D felony; and battery, a Class A misdemeanor.

Pursuant to a plea agreement, Kyner agreed to plead guilty to the rape and criminal

confinement charges. In exchange, the State agreed to dismiss the burglary and battery

charges, and recommend that Kyner be sentenced to twelve years imprisonment executed

in the Indiana Department of Correction for the rape conviction, to be served

consecutively to three years imprisonment suspended to sex offender probation for the

criminal confinement conviction. The plea agreement also specified that Kyner would

register as a sex offender.     The trial court accepted the agreement and Kyner was

sentenced accordingly.

          Kyner was paroled on May 10, 2010. On August 2, 2011, the trial court ordered

that Kyner be supervised by probation while completing his parole obligation.          On

August 23, 2011, Kyner was given notice of a probation violation. On September 9,

2011, the trial court held a hearing and discharged Kyner from probation. On December


                                              2
20, 2011, the parole board found Kyner guilty of a parole violation and revoked his

parole.

          On January 17, 2012, Kyner filed, pro se, a petition for post-conviction relief,

alleging that he was improperly placed on parole and that he was not informed at the time

of his sentencing that he would be required to register as a sexually violent predator for

the rest of his life. The post-conviction court held a hearing on the petition on July 18,

2012.      After giving the Attorney General’s office an opportunity to respond to the

petition, the court issued findings of fact and conclusions of law denying Kyner’s petition

on January 8, 2013. Kyner now appeals. Additional facts will be provided as necessary.

                                    Discussion and Decision

                                    I. Standard of Review


          Under the rules of post-conviction relief, the petitioner must establish the grounds

for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Johnson

v. State, 832 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied. To succeed on appeal

from the denial of relief, the post-conviction petitioner must show that the evidence is

without conflict and leads unerringly and unmistakably to a conclusion opposite the one

reached by the post-conviction court. Johnson, 832 N.E.2d at 991. The post-conviction

court is the sole judge of the weight of the evidence and the credibility of the witnesses.

Id.

          In addition, the post-conviction court in this case made findings of fact and

conclusions of law pursuant to Indiana Post-Conviction Rule 1, § 6. We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but accord


                                               3
conclusions of law no deference. Johnson, 832 N.E.2d at 992. “A post-conviction

court’s findings and judgment will be reversed only upon a showing of clear error—that

which leaves us with a definite and firm conviction that a mistake has been made.” Id.

(quotation and citation omitted).

                          II. Designation as a Sexually Violent Predator


        The Indiana Sex Offender Registration Act (“the Act”) was amended in 2007 to

define a person who has committed one of a number of qualifying offenses, including

rape, a sexually violent predator by operation of law if the person was released from

incarceration, secure detention, or probation for the offense after June 30, 1994. 1 Ind.

Code § 35-38-1-7.5(b). A sexually violent predator is subject to a lifetime registration

requirement. Ind. Code § 11-8-8-19(b). Kyner was convicted of rape and was released

from incarceration after June 30, 1994, and thus, under the 2007 Amendment, is a

sexually violent predator by operation of law. Kyner appears to argue that applying the

statute to him constitutes a violation of the constitutional prohibition on ex post facto

laws. He claims that his designation as a sexually violent predator is punitive in nature

and is improper in light of the fact that at his sentencing in 2006, the Act only required

him to register as a sex offender for ten years.

        Kyner’s arguments were rejected by our supreme court in Lemmon v. Harris, 949

N.E.2d 803 (Ind. 2011). In Lemmon, the court determined that the 2007 amendment of

the Act applied retroactively to the defendant, who was convicted of one of the qualifying

offenses in the statute and was released from incarceration after June 30, 1994. Id. at


        1
           Previous versions of the Act required the court to determine whether a person was a sexually violent
predator at the sentencing hearing.
                                                      4
809. The court further determined that even though the defendant had been sentenced in

1999 and was required at the time to register as a sex offender for ten years, retroactively

applying the 2007 Amendment of the Act to him was not unconstitutional because it was

nonpunitive. Id. at 813. In so doing, the court noted that the Act was in place at the time

of the defendant’s sentencing, id.; cf. Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009)

(holding that applying the Act to the defendant, who was charged, convicted, and served

his sentence prior to the Act being enacted, violated the prohibition on ex post facto

laws), and that the 2007 Amendment advanced the Act’s legitimate regulatory purpose of

public safety, Lemmon, 949 N.E.2d at 813. Moreover, the court noted that under the

2007 Amendment, the defendant could petition the court to consider whether he should

no longer be considered a sexually violent predator ten years from the date of his release

from prison. Lemmon, 949 N.E.2d at 812-13; see also Ind. Code § 35-38-1-7.5(g). Like

the defendant in Lemmon, Kyner may petition the court to consider whether he should no

longer be considered a sexually violent predator ten years from the date of his release.

His current designation as a sexually violent predator, however, is proper, and the post-

conviction court did not err in so finding.

                                                 III. Parole


        In May 2006, at the time Kyner committed the underlying offenses, Indiana Code

section 35-50-6-1(d) stated: “When an offender (as defined in IC 5-2-12-4) completes

the offender’s fixed term of imprisonment, less credit time earned with respect to that

term, the offender shall be placed on parole for not more than ten (10) years.”2 Indiana


        2
           This section of the Indiana Code was later amended to include a lifetime parole requirement for sex
offenders, but that requirement only applies to offenses committed after June 30, 2007.
                                                      5
Code section 5-2-12-43 defined an “offender” as someone who committed any one of a

number of offenses, including rape. Thus, Kyner is subject to this ten year parole

requirement. Kyner argues that he was improperly placed on parole because he was

never informed at his sentencing of the parole consequences of his plea. Our supreme

court has held, however, that a court is “not required to advise the defendant of the parole

consequences of his plea.” Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind. 1988); see also

Jones v. State, 491 N.E.2d 542, 543 (Ind. 1986). Thus, even if Kyner was not informed

at his sentencing that he would be placed on parole after his release from prison,

subjecting him to the statutory requirement of parole was not improper nor was it a

breach of his plea agreement.

       Kyner also appears to contend that when he was released from prison, he was

“turned over” to begin his sentence for his criminal confinement conviction—three years

of sex offender probation. However, as Kyner concedes, he was placed on parole upon

his release from prison in May of 2010. The parole board has the authority to discharge a

person from his parole prior to his fixed term expiring. See Ind. Code § 35-50-6-1(b); see

also Meeker v. Ind. Parole Bd., 794 N.E.2d 1105, 1109 (Ind. Ct. App. 2003) (holding that

by “turning over” the defendant to serve his sentences for a second set of convictions, the

parole board effectively discharged him from the sentences for his first set of

convictions), trans. denied. Here, however, there is no evidence that the parole board

discharged Kyner from his sentence for his rape conviction. See Parker v. State, 822

N.E.2d 285, 288 (Ind. Ct. App. 2005) (holding that the parole board properly reinstated

the balance of the defendant’s sentence when it revoked his parole because there was no

       3
           This section of the Indiana Code has since been repealed.
                                                          6
evidence that it had ever discharged or “turned over” his sentence). Thus, Kyner was

both on parole and on probation at the same time. See Pallett v. State, 901 N.E.2d 611,

615 n.2 (Ind. Ct. App. 2009) (an offender may be on parole for one offense while serving

a consecutive sentence), trans. denied. And when the trial court discharged Kyner from

his probation, this did not serve as a discharge from his parole from the Department of

Correction. Probation and parole, while similar, are distinct. See Harris v. State, 762

N.E.2d 163, 167 (Ind. Ct. App. 2002) (“probation relates to judicial action taken before

the prison door is closed, whereas parole relates to executive action taken after the door

has closed on a convict”) (citation and quotations omitted), trans. denied.       For the

foregoing reasons, the post-conviction court did not err when it found that Kyner was

properly placed on parole.

                                       Conclusion

      Kyner has failed to demonstrate by a preponderance of the evidence that he was

entitled to post-conviction relief. The judgment of the post-conviction court is therefore

affirmed.

      Affirmed.

FRIEDLANDER, J. and CRONE, J., concur.




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