                                                                    Sep 22 2015, 8:59 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David W. Stone IV                                          Gregory F. Zoeller
Stone Law Office & Legal Research                          Attorney General of Indiana
Anderson, Indiana
                                                           Tyler G. Banks
Allen R. Stout                                             Deputy Attorney General
Stout Law Group, P.C.                                      Indianapolis, Indiana
Angola, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kile Richard Stockert,                                     September 22, 2015
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           76A04-1504-CR-144
        v.                                                 Appeal from the Steuben Circuit
                                                           Court
State of Indiana,                                          The Honorable Allen N. Wheat,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           76C01-1312-FB-1093



Brown, Judge.




Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015               Page 1 of 11
[1]   Kile Richard Stockert (“Stockert”) appeals the trial court’s denial of his petition

      for declaratory judgment seeking to overturn the Department of Correction

      (“DOC”) designation that he is a sexually violent predator and offender against

      children (“SVP”). He raises one issue which we revise and restate as whether

      the court erred in denying his petition for declaratory judgment. We affirm.


                                           Facts and Procedural History

[2]   On December 9, 2013, the State charged Stockert with Count I, rape as a class

      B felony; Counts II-IV, criminal deviate conduct as class B felonies; Counts V-

      VI, criminal confinement as class D felonies; and Count VII, strangulation as a

      class D felony. On March 26, 2014, Stockert entered a plea of guilty to Count

      IV, criminal deviate conduct as a class B felony, and the six remaining charges

      were dismissed.1 On June 16, 2014, the trial court held a sentencing hearing, at

      which it entered a judgment of conviction on Count IV, criminal deviate

      conduct as a class B felony, and sentenced Stockert to six years in the DOC

      with three years executed and three years suspended with two years of

      probation. The court noted that Stockert “pled guilty . . . to the offense of

      criminal deviate conduct,” and stated that it was required to “order and direct

      that you register and be on the sex offender registry for ten (10) years, Sir,

      because of the nature of this offense. The court has, I’m not implying I




      1
          The record does not contain a copy of the guilty plea transcript.


      Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 2 of 11
      wouldn’t put you on it anyway, the court doesn’t have any discretion in that

      regard.” Transcript at 14-16.


[3]   The trial court’s Judgment of Conviction, Sentence and Commitment Order did

      not mention any reporting requirements applicable to Stockert following the

      completion of his sentence. The presentence investigation report (“PSI”) noted

      that Stockert was not an offender against children, was not a credit restricted

      felon, and would be required to register as a sex offender or violent offender for

      ten years following his release from incarceration. On the day of sentencing,

      the probation department provided Stockert with a form titled “Special

      Conditions for Adult Sex Offenders.” Appellant’s Appendix at 28. The form

      contained conditions classifying sex offenders as sexually violent predators, not

      sexually violent predators, and offenders against children. Condition 2, which

      “[a]pplies to sex offenders who are NOT sexually violent predators,” was

      checked on the form. Id. Condition 1, which “[a]pplies only to sexually violent

      predators,” was not checked. Id.


[4]   On December 10, 2014, the DOC sent Stockert a “Notice of Intent to Provide

      Information to Sex and Violent Offender Registry and Right to Appeal,” which

      notified him that he was an SVP and would be placed on the Sex and Violent

      Offender Registry (“Registry”) for life. Stockert appealed his SVP status, and,

      on January 16, 2015, the DOC denied his appeal.


[5]   On February 24, 2015, Stockert filed a petition for declaratory judgment

      challenging his classification as an SVP and requesting that the court “sustain[]


      Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 3 of 11
      its original judgment of conviction . . . and direct[] the [DOC] to remove

      designations against [Stockert] as a sexually violent predator, as an offender

      against children, and the requirement to register as a sex offender for life.” Id.

      at 20.


[6]   On March 12, 2015, the court held a hearing on Stockert’s petition for

      declaratory judgment, and, on March 16, 2015, it denied the petition. The

      order states in part:


                   6. Once at the IDOC, Stockert by virtue of the crime to
                      which he had plead guilty, was advised that he was a
                      sexually violent predator, and, upon being released from
                      incarceration would be required to register as a sex
                      offender for life rather than for ten (10) years.


                   7. At all times relevant hereto Stockert was, in fact, a
                      sexually violent predator pursuant to Ind. Code 35-38-1-
                      7.5(b)(1)(B).


                   8. Stockert contends that the case Becker v.State, 992 N.E.2d
                      697 (Ind. 2013) is controlling in his request for relief from
                      this Court.


                                                     *****


                   18. Stockert contends that the IDOC cannot now classify him
                       as a sexually violent predator because the probation order
                       approved by the Court designated him as a non-sexually
                       violent predator. Stockert continues with his argument
                       that since the State failed to appeal this erroneous
                       classification by the trial court, under the doctrine of res


      Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015    Page 4 of 11
                 judicata, the IDOC is now without lawful authority to
                 correct this error sua sponte.


             19. The Court concludes that the facts in Becker are
                 distinguishable from the facts in the case at bar. In Becker,
                 the trial court in a contested post-judgment hearing
                 conducted in 2008 found that the statutory amendments to
                 Ind. Code 35-38-1-7.5 represented an unconstitutional ex
                 post facto law as applied to Mr. Becker. The State did not
                 appeal this ruling. Therefore, the doctrine of res judicata
                 prevented the State from re-litigating this very issue on
                 appeal following a second hearing conducted in 2011.


             20. Unlike Becker, in the case at bar, there has been no post-
                 judgment/sentencing hearing from which the State failed
                 to appeal an adverse ruling. Stockert’s status as a sexually
                 violent predator was determined by “operation of law” the
                 second that the Court accepted his guilty plea to the crime
                 of criminal deviate conduct, and entered judgment in
                 accordance therewith on June 16, 2014. This Court was
                 without lawful authority to classify, or not classify,
                 Stockert as a sexually violent predator. Incorrectly
                 marking a box on a probation order does not alter this fact.
                 As observed by the Court in the case Flanders v. State, 955
                 N.E.2d 732 (Ind. [Ct.] App. 2011)[, reh’g denied, trans.
                 denied], in discussing the recent Supreme Court decision of
                 Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011), the Court
                 observed at page 747:


                          “… At some point after the 2007 amendment to
                          Indiana Code Section 35-38-1-7.5, the DOC
                          informed Harris that he was an SVP and had to
                          register for life. Harris filed a complaint arguing
                          that the DOC lacked authority to make an SVP
                          determination and that he should be required to

Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015    Page 5 of 11
                                register for only ten years. The trial court granted
                                declaratory and injunction [sic] relief for Harris, and
                                the DOC appealed. We affirmed, but the supreme
                                court granted transfer and reversed.


                                The court noted that previous versions of the statute
                                required the trial court to make an SVP
                                determination at sentencing, but since 2007, the
                                classification occurs by operation of law if the
                                person has committed an enumerated offence
                                [sic]… The statute does not grant the DOC any
                                authority to classify or reclassify. SVP status under
                                Indiana Code Section 35-38-1-7.5(b) is determined
                                by the statute itself…” (Citations omitted;
                                Quotation marks omitted)


      Appellant’s Appendix at 7, 9-11.


                                                    Discussion

[7]   The issue is whether the court erred in denying Stockert’s petition for

      declaratory judgment. At the time of the hearing, Ind. Code § 35-38-1-7.5(b)(1)

      provided in relevant part:

              (b) A person who:


                       (1) being at least eighteen (18) years of age, commits an
                       offense described in:


                                (B) IC 35-42-4-2 (before its repeal on July 1, 2014);


                                                     *****



      Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015      Page 6 of 11
        is a sexually violent predator. Except as provided in subsection
        (g) or (h), a person is a sexually violent predator by operation of
        law if an offense committed by the person satisfies the conditions
        set forth in subdivision (1) or (2) and the person was released
        from incarceration, secure detention, probation, or parole for the
        offense after June 30, 1994.


                                               *****


        (d) At the sentencing hearing, the court shall indicate on the
        record whether the person has been convicted of an offense that
        makes the person a sexually violent predator under subsection
        (b).


                                               *****


        (f) If a person is a sexually violent predator:


                 (1) the person is required to register with the local law
                 enforcement authority as provided in IC 11-8-8; and


                 (2) the court shall send notice to the department of
                 correction.


        (g) A person who is a sexually violent predator may petition the
        court to consider whether the person should no longer be
        considered a sexually violent predator. The person may file a
        petition under this subsection not earlier than ten (10) years after:


                 (1) the sentencing court or juvenile court makes its
                 determination under subsection (e); or




Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 7 of 11
                       (2) the person is released from incarceration or secure
                       detention.[2]


      Ind. Code § 11-8-8-19(b) provided that “[a] sex or violent offender who is a

      sexually violent predator is required to register for life.”3


[8]   Stockert argues that the State’s failure to object to the statements in his PSI and

      special probation conditions, which indicated that he was a sex offender rather

      than an SVP, amounts to invited error. He contends that the invited error

      doctrine should “prevent the [S]tate, through the DOC, from altering the

      punishment imposed” on him. Appellant’s Brief at 7. He also contends that res

      judicata should bind the DOC to “the determinations made by the trial court

      that Stockert was not a sexually violent predator . . . since any error was invited

      by the prosecutor in not objecting to such determination at the sentencing

      hearing.” Id. at 8. He states that Ind. Code 35-38-1-7.5(d) requires a trial court,

      at sentencing, to “indicate on the record whether the person has been convicted

      of an offense that makes the person a sexually violent predator under subsection

      (b),” and that the trial court made no such finding at the sentencing hearing. Id.

      at 9 (quoting Ind. Code § 35-38-1-7.5(d)). Stockert maintains that the “necessity




      2
       Subsequently amended by Pub. L. No. 158-2013, § 394 (eff. July 1, 2014); Pub. L. No. 168-2014, § 57 (eff.
      July 1, 2014).
      3
       Subsequently amended by Pub. L. No. 158-2013, § 176 (eff. July 1, 2014); Pub. L. No. 168-2014, § 23 (eff.
      July 1, 2014); Pub. L. No. 5-2015, § 33 (eff. April 15, 2015).

      Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015                    Page 8 of 11
       for the trial judge to determine that a defendant is a sexually violent predator

       trumps [subsection (b)].” Id.


[9]    The State’s position is that Stockert is an SVP by operation of law and that

       “neither the trial judge, nor the probation department has the authority to make

       an SVP determination.” Appellee’s Brief at 6. It contends that, even if the trial

       court prescribed a ten-year registration requirement, the sentence would have to

       be vacated due to its illegality, that the sentencing order’s silence regarding

       Stockert’s registration did not provide it with an adverse ruling from which it

       could object, and that the State was not a party to Stockert’s probation, which

       shows that the invited error doctrine does not apply.


[10]   We find instructive Nichols v. State, 947 N.E.2d 1011 (Ind. Ct. App. 2011), reh’g

       denied. In that case, Nichols pleaded guilty, pursuant to a plea agreement, to

       three counts of child molesting as class C felonies. Nichols, 947 N.E.2d at 1014.

       The plea agreement recited each of the statutory requirements for sex offender

       registration for a ten-year period or for life. Id. The trial court accepted the

       plea, sentenced Nichols, and issued an order stating that Nichols would be

       required to register as a sex offender for ten years. Id. The DOC later notified

       the trial court that its order providing for the ten-year registration period

       appeared to be in error and it had determined that Nichols would be required to

       register for life. Id. Nichols filed a Motion for Correction of Sex Offender

       Registry, pointing to the terms of the plea agreement and sentencing order and

       requesting that the trial court order the DOC to revise his status on the Registry

       to a ten-year period. Id. The trial court denied Nichols’s motion. Id. On

       Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 9 of 11
       appeal, Nichols argued that he must be required to register as a sex offender for

       ten years because the DOC, not the trial court, imposed the lifetime registration

       requirement upon him, and this was contrary to the court’s sentencing order.

       Id. at 1016. We held that “placement on the Registry is mandatory, and the

       [Sex Offender Registration Act (the “Act”)] affords neither the trial court nor

       the DOC any discretion in the matter of the registration requirements.” Id. at

       1017. We also held that plea agreements have no effect on operation of the

       Act, that the length of the applicable reporting period is determined by the Act

       itself and not by any plea agreement, the trial court, or the DOC, and that the

       trial court did not abuse its discretion in denying Nichols’s motion. Id. at 1017.


[11]   By virtue of his 2014 conviction for criminal deviate conduct as a class B felony,

       Stockert is an SVP by operation of law under Ind. Code 35-38-1-7.5(b) and is

       required to register for life. See Ind. Code § 11-8-8-19(b) (“[a] sex or violent

       offender who is a sexually violent predator is required to register for life”). The

       length of Stockert’s required reporting period is determined by the applicable

       statutes and not by the trial court or the DOC.


[12]   Based on the record and Ind. Code § 35-38-1-7.5(b) and § 11-8-8-19(b), we

       conclude that the trial court did not err in denying Stockert’s petition for

       declaratory judgment. See Nichols, 947 N.E.2d at 1017 (holding that the

       applicable reporting period is determined by the statutes and not by the trial

       court or the DOC); see also Lemmon v. Harris, 949 N.E.2d 803, 808 (Ind. 2011)

       (stating “under the 2007 Amendment, the Legislature had changed the Act

       from requiring the court to determine SVP status at the sentencing hearing to

       Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 10 of 11
       the ‘automatic designation of SVP status,’” and that “[a]t the time Harris was

       released from prison in December 2007, the sentencing court was no longer

       required to have ‘determined’ a person’s SVP status”); Vickery v. State, 932

       N.E.2d 678, 683 (Ind. Ct. App. 2010) (explaining that a conviction for an

       enumerated crime under the statute establishes a defendant’s status as an SVP

       “by operation of law”); Marlett v. State, 878 N.E.2d 860, 870 (Ind. Ct. App.

       2007) (noting that convictions for certain crimes mandate an automatic sexually

       violent predator finding), trans. denied.


                                                    Conclusion

[13]   For the foregoing reasons, we affirm the trial court’s denial of Stockert’s

       petition for declaratory judgment.


[14]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 76A04-1504-CR-144 | September 22, 2015   Page 11 of 11
