MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Jan 18 2019, 7:35 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
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
Jeffery Gourley                                          Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Gourley,                                         January 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-MI-572
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Kit C. Dean Crane,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C02-1707-MI-66



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019                   Page 1 of 16
                                             Case Summary
[1]   Jeffery Gourley appeals the trial court’s dismissal of his motion to remove his

      sexually violent predator (“SVP”) status. We affirm.


                                                     Issues
[2]   Gourley raises two issues on appeal, which we restate as follows:


              I.       Whether the trial court erred in dismissing Gourley’s
                       motion to remove SVP status as barred by the doctrine of
                       res judicata.


              II.      Whether the statutory scheme that classified Gourley as
                       SVP by operation of law is unconstitutional.


                                                     Facts
[3]   In October 1997, Gourley sexually molested a child. On December 17, 1997,

      Gourley and the State entered a plea agreement under which Gourley pleaded

      guilty to child molesting, a Class B felony. On January 23, 1998, the trial court

      accepted the plea agreement and sentenced Gourley to twenty years in the

      Department of Correction (“DOC”), with three years suspended to probation.

      Pursuant to the plea agreement, Gourley agreed to be subject to various sex

      offender stipulations, including a requirement that Gourley would register as a

      sex offender for a ten-year period following his release from prison.


[4]   The Indiana Sex Offender Registration Act (“the Act”) is codified at Indiana

      Code Section 35-38-1-7.5. In 1998, our General Assembly amended the Act to

      create the SVP status. In 2007, the General Assembly again amended the Act
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 2 of 16
      (“2007 Amendment”) to provide that a person is an SVP, by operation of law, if

      the person has committed a qualifying offense 1 and if the person was released

      from incarceration, detention, or probation after June 30, 1994. Indiana Code §

      35-38-1-7.5(b) (2007). As to the underlying child molesting conviction, Gourley

      was released from incarceration well after June 30, 1994.


[5]   On the effective date of the 2007 Amendment, by operation of law, Gourley

      became an SVP, subject to a lifetime sex offender registration requirement. On

      December 30, 2011, Gourley moved to remove his SVP status in Cause

      Number 3302-1112-MI-104 (“MI-104”). Gourley argued that the 2007

      Amendment was unconstitutional as applied to him. Specifically, Gourley

      alleged that classifying him as an SVP violated the ex post facto clauses of the

      Indiana Constitution and the U.S. Constitution as well as the separation of

      powers clause of the Indiana Constitution. After a hearing on April 16, 2012,

      the Henry County circuit court denied Gourley’s motion to remove SVP status

      in MI-104. Gourley did not appeal.


[6]   On September 20, 2017, Gourley moved to remove SVP status on the same

      grounds as asserted in MI-104. On December 29, 2017, the State filed a motion

      to dismiss, asked the trial court to take judicial notice of court records from MI-

      104, and argued that Gourley’s claim was barred by the doctrine of res judicata.

      On February 27, 2018, the trial court found that “[Gourley]’s claim was ruled




      1
          Child molesting is a qualifying offense under the Act.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 3 of 16
      upon by this Court in 2012, under cause [MI-104]” and granted the State’s

      motion to dismiss on res judicata grounds. App. Vol. II p. 9. Gourley now

      appeals.


                                                     Analysis
                                                I.      Background

[7]   In Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011) (“Harris”), our supreme court

      summarized the various amendments of the Act, and most relevantly, the 2007

      Amendment, as follows:


              [ ] As amended in 2007 (“2007 Amendment”):


                       a. Subsection (b) amended—a person is an SVP “by
                       operation of law if an offense committed by the person [is a
                       qualifying offense] and the person was released from
                       incarceration, secure detention, or probation for the offense
                       after June 30, 1994.” Ind. Code § 35-38-1-7.5(b) (Supp.
                       2007) (emphasis added).


                       b. The court is required at the sentencing hearing 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).” I.C. § 35-38-1-
                       7.5(d) (emphasis added).


                       c. The court no longer “determines” SVP status at the
                       sentencing hearing unless a person is not an SVP under
                       subsection (b) and the prosecuting attorney requests a
                       hearing to determine whether the person is an SVP under
                       subsection (a). I.C. § 35-38-1-7.5(e). If the court grants the
                       request, it must conduct the hearing and consider the

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 4 of 16
                       testimony of two experts before determining whether the
                       person is an SVP under subsection (a). Id.


      Harris, 949 N.E.2d at 807 (citations and footnotes omitted). “An SVP is

      required to register for an indefinite period unless and until a court, assisted by

      a board of experts, finds that the offender is no longer an SVP.” Id. at 806.


                                               II.      Res Judicata

[8]   Gourley argues that the trial court erred in dismissing his claim on res judicata

      grounds. Although Gourley acknowledges that he “[d]oes mention ex post

      facto [laws]” in MI-104, he contends that MI-104 involved a “due process

      argument,” whereas the instant claim involves an ex post facto argument.

      Appellant’s Br. p. 26.


[9]   “Res judicata is a legal doctrine intended ‘to prevent repetitious litigation of

      disputes that are essentially the same, by holding a prior final judgment binding

      against both the original parties and their privies.’” Ind. State Ethics Comm’n v.

      Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (quoting Becker v. State, 992 N.E.2d

      697, 700 (Ind. 2013)). “It applies ‘where there has been a final adjudication on

      the merits of the same issue between the same parties.’” Id. (quoting Gayheart v.

      Newnam Foundry Co., Inc., 271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979)). Our

      supreme court has held:


                       1. [T]he former judgment must have been rendered by a
                       court of competent jurisdiction;




      Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 5 of 16
                        2. the former judgment must have been rendered on the
                        merits;


                        3. the matter now in issue was or might have been
                        determined in the former suit; and


                        4. the controversy adjudicated in the former suit must have
                        been between the parties to the present action or their
                        privies.


       State v. Stidham, 110 N.E.3d 410 (Ind. Ct. App. 2018) (quoting Chemco Transp.,

       Inc. v. Conn, 527 N.E.2d 179, 181 (Ind. 1988)). If any element is absent, res

       judicata does not apply. Id. Of these factors, only the third is in dispute here.


[10]   In MI-104, Gourley argued that, although, he was never declared an SVP by a

       court, by application of an unconstitutional ex post facto law, he was belatedly

       classified as an SVP by the DOC. Here, Gourley argues “that retroactive

       application of the ‘by operation of law’ amendment of I.C. § 35-38-1-75,

       violates his right to be free from ex post facto laws.” App. Vol. II pp. 16; see id.

       at 19. In each scenario, Gourley seeks removal of his SVP status because the

       statutory scheme that created SVP status was not in effect at the time of his

       sentencing. Gourley’s arguments in MI-104 and the instant case are identical.


[11]   Finding no meaningful distinction between Gourley’s claims in MI-104 and the

       instant case, we conclude that the controversy adjudicated in MI-104 in 2012

       determined the instant issue. Thus, the doctrine of res judicata precludes

       Gourley’s claim. See Stidham, 110 N.E.3d at 420; see Love v. State, 22 N.E.3d

       663, 664 (Ind. Ct. App. 2014) (declining to “reach the merits of Love’s claim as
       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 6 of 16
       the issue has been resolved against him numerous times”). The trial court did

       not err in granting the State’s motion to dismiss on grounds of res judicata.


                                                III.     Constitutionality

                                               A. Ex Post Facto Clause

[12]   Next, Gourley argues 2 that:


                retroactive application of the ‘by application of law’ amendment of
                Ind. Code § 35-38-1-7.5, as to [Gourley], violates the ex post
                clause[s] of the Indiana and United States Constitution[s],
                because the “by operation of law” amendment [and] any
                amendments concerning the term “Sexually Violent Predator”
                had not c[o]me into effect at the time of the commission,
                conviction, and ultimately sentencing for [Gourley]’s ‘qualifying
                offense.’


       Appellant’s Br. p. 14 (emphasis in original).


[13]   The ex post facto clause of the Indiana Constitution forbids laws that impose

       punishment for an act that was not otherwise punishable when it was

       committed. Ind. Const. art. 1 § 24; Harris, 949 N.E.2d at 809. The aim of the

       ex post facto clause is to ensure that people are “give[n] fair warning of the

       conduct that will give rise to criminal penalties.” Harris, 949 N.E.2d at 809.

       The ex post facto clause also forbids laws (1) that impose punishment for an act




       2
        Even if the trial court had not properly dismissed Gourley’s claim as barred by res judicata, as discussed
       above, we would find no ex post facto violation.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019                   Page 7 of 16
       that was not otherwise punishable when it was committed or (2) that impose

       additional punishment for an act then-proscribed. Id.


[14]   Our supreme court has held that “[a] law is ex post facto if it ‘substantially

       disadvantage[s] [a] defendant because it increase[s] his punishment, change[s]

       the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a]

       defendant of some defense or lesser punishment that was available at the time

       of the crime.’” Id. (quoting Stroud v. State, 809 N.E.2d 274, 288 (Ind. 2004)).


               In evaluating ex post facto claims under the Indiana
               Constitution, we apply the familiar “intent-effects” test . . . .
               Under this test, we first determine whether the Legislature meant
               the Act to establish civil proceedings. If instead its intention was
               to impose punishment, then the inquiry ends. However, if the
               Legislature intended a nonpunitive regulatory scheme, then we
               must examine the Act’s effects to determine whether they are in
               fact so punitive as to transform the regulatory scheme into a
               criminal penalty; if so, then retroactive application of the law
               violates the Ex Post Facto Clause.


       Harris, 949 N.E.2d at 810 (citations omitted).


[15]   In applying the intent-effects test in Harris, our supreme court initially presumed

       the 2007 amendment was civil and regulatory. See id. at 810; see also Jensen v.

       State, 905 N.E.2d 384, 390-91 (Ind. 2009) (noting that “every statute [is] clothed

       with the presumption of constitutionality until that presumption is clearly

       overcome by a contrary showing”). On the second question of whether the

       2007 Amendment had a punitive effect as to Harris, our supreme court

       considered the following seven factors:

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 8 of 16
               [1] Whether the sanction involves an affirmative disability or
               restraint, [2] whether it has historically been regarded as
               punishment, [3] whether it comes into play only on a finding of
               scienter, [4] whether its operation will promote the traditional
               aims of punishment—retribution and deterrence, [5] whether the
               behavior to which it applies is already a crime, [6] whether an
               alternative purpose to which it may rationally be connected is
               assignable for it, and [7] whether it appears excessive in relation
               to the alternative purpose assigned.


       Id. (quoting Wallace v. State, 905 N.E.2d 371 (Ind. 2009)).


[16]   Harris, like Gourley, committed his child molesting offense before the SVP

       designation existed and specifically challenged the 2007 amendment. As to the

       first factor of the intent effects test – whether the sanction involves an

       affirmative disability or restraint – our supreme court found that additional

       restraints imposed on Harris as an SVP “lean[ed] in favor” of treating the 2007

       amendment as punitive. The court also deemed the second factor – whether the

       2007 amendment imposes sanctions that have historically been regarded as

       punishment – as punitive. See id. at 811 (finding that “the Act has the effect of

       increasing shame on an offender”).


[17]   In weighing the third factor – whether the sanction comes into play only on a

       finding of scienter – our supreme court concluded that the 2007 amendment was

       not punitive as to Harris because there is no scienter requirement for the offense

       of child molesting involving sexual intercourse with a child under age fourteen.

       Next, regarding whether operation of the 2007 amendment promotes the

       traditional aims of punishment, the court found that Harris was “in no different

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 9 of 16
       position than before the 2007 Amendment,” given general similarities between

       an offender being required to register for ten years versus being required to

       register for life; thus, on this factor, the court concluded that the 2007

       amendment was nonpunitive as to Harris. Id. at 812.


[18]   As to the fifth factor – whether the behavior to which it applies is already a

       crime – the court concluded that the 2007 Amendment was nonpunitive as to

       Harris because child molesting was a registration-triggering offense when Harris

       committed his crimes. Regarding the sixth factor – whether an alternative

       purpose to which the 2007 Amendment may rationally be connected is

       assignable for it – the court stated:


               the Act undoubtedly advances a legitimate, regulatory purpose in
               that it promotes public safety. To be sure, we have recognized
               that “registration systems are a legitimate way to protect the
               public from repeat offenders.” This factor clearly favors treating
               the effects of the Act as nonpunitive.


       Id. at 812 (citation omitted).


[19]   As to the final factor – whether it appears excessive in relation to the alternative

       purpose assigned – the court stated:


               Finally, and most importantly, as applied to Harris, the Act’s
               requirements are not excessive in relation to its legitimate,
               regulatory purpose. [M]any of the Act’s registration and
               disclosure requirements were in place and applied to Harris at the
               time he committed his offense and at the time he pled guilty to
               child molesting, well before the 2007 Amendment. Further, like
               the 2006 Amendment, the 2007 Amendment provides that in ten

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 10 of 16
               years from the date of his release from prison—the time frame in
               which Harris was originally required to register—he may petition
               the court “to consider whether [he] should no longer be
               considered [an SVP].” Ind. Code § 35-38-1-7.5(g) (Supp. 2007).
               And, under the 2007 Amendment, the court at that point may
               determine if Harris presents a future threat—i.e., “suffers from a
               mental abnormality or personality disorder that makes [him]
               likely to repeatedly commit a sex offense,” I.C. § 35-38-1-7.5(a)—
               after consulting with two psychologists or psychiatrists who have
               expertise in criminal behavioral disorders. I.C. § 35-38-1-7.5(g).
               As we read the 2007 Amendment, if he is not an SVP under this
               standard, then he no longer has to register as one and his
               lifetime-registration requirement terminates. But if he is, then the
               Act requires him to continue to register; he can petition the court
               again to determine his SVP status in another year. Id.


               It is clear to us that this provision of the 2007 Amendment
               advances the Act’s legitimate regulatory purpose of public
               safety—by its terms, only those people who present a future
               threat are required to register for their lifetimes. Because of this
               provision allowing for an individualized determination based on
               his likelihood to reoffend after his original ten-year registration
               requirement is up, the 2007 Amendment seems even less
               punitive[.]


       Id. at 813 (citations and footnotes omitted).


[20]   Our supreme court, therefore, rejected Harris’ ex post facto claim because four

       of the seven factors “lean[ed] in favor of treating [the 2007 Amendment] as

       nonpunitive when applied to Harris.” Id. The same outcome is warranted

       here.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 11 of 16
[21]   Gourley attempts to distinguish the instant case by “provid[ing] evidence of

       punitive intent on the part of the legislature with respect to” the 2007

       Amendment. Appellant’s Br. p. 11. Citing Goldsberry v. State, 821 N.E.2d 447

       (Ind. Ct. App. 2005), Gourley contends that (1) because the 2007 Amendment

       provides that it is an act to amend the Indiana Code concerning criminal law

       and procedure”; and because (2) the 2007 Amendment is found in Title 35 of

       the Indiana Code, the legislature must have intended the 2007 Amendment to

       be a criminal punishment.


[22]   The instant case is much akin to Harris. 3 Harris – decided five years after

       Goldsberry – employed a more detailed intents-effects test than Goldsberry by

       weighing the above-stated seven factors in determining “whether the effects of

       applying the regulatory scheme embodied in the 2007 Amendment [we]re

       punitive” as to the offender. Harris, 949 N.E.2d at 810.


[23]   Applying the seven factors here to determine whether the 2007 Amendment has

       a punitive effect as applied to Gourley, we reach the same conclusion as did the

       Harris court. As to the first factor, we find that SVP status imposes additional

       restraints that warrant treating the 2007 amendment as punitive. Regarding the

       second factor, we find that publicly disseminated and searchable registration

       leans in favor of a punitive finding. The third factor is nonpunitive because,




       3
         Like Harris, Gourley committed a child molesting offense while the 1997 Act was in effect, was a sex
       offender required to register for ten years after his release, and will be released from prison after June 30,
       1994.


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019                      Page 12 of 16
       under the statutory scheme in effect at the time of Gourley’s conviction, no

       scienter requirement existed for the offense of child molesting, a Class B felony,

       involving sexual intercourse with a child under age fourteen. See Ind. Code §

       35-42-4-3(a) (1998).


[24]   The fourth factor is also nonpunitive because, no matter the duration of the

       reporting obligation, sex offenders who are required to register for a prescribed

       period are largely similarly-situated. Likewise, the fifth factor is nonpunitive;

       Gourley was already required to register because his conduct was criminal

       before the 2007 Amendment. Regarding the sixth factor, we readily find that

       registration systems serve a legitimate, regulatory purpose in promoting public

       safety.


[25]   As to the final and most significant factor, we deem it nonpunitive, given the

       potential to have one’s SVP status removed. Stated differently, if a court, in

       consultation with criminal behavior specialists, determines that Gourley’s SVP

       status should be removed, his lifetime reporting requirement shall terminate.


[26]   Based on the foregoing, four of the seven factors lean in favor of the 2007

       Amendment having a nonpunitive effect as applied to Gourley. We, therefore,

       conclude that the 2007 Amendment is not an unconstitutional ex post facto law

       as applied to Gourley.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 13 of 16
                                               B. Separation of Powers4

[27]   Gourley also argues that his SVP classification “open[s] a final judgment which

       is [Gourley]’s plea agreement” and, thereby, violates the separation of powers

       clause of the Indiana Constitution. 5 Appellant’s Br. p. 22.


                The separation of powers or functions provision of the Indiana
                Constitution divides the functions of the government into three
                departments—the Legislative, the Executive, and the Judicial—
                and provides that “no person, charged with official duties under
                one of these departments, shall exercise any of the functions of
                another, except as in this Constitution expressly provided.” Ind.
                Const. art. III, § 1.


       Harris, 949 N.E.2d at 814 (citations omitted). “In general, this provision

       recognizes ‘that each branch of the government has specific duties and powers

       that may not be usurped or infringed upon by the other branches of

       government.’” Id. “Although the Legislature ‘has the authority to provide

       which acts shall be crimes in our society and to provide [for their] penalties,’ the

       Judiciary possesses the authority to ‘fix the penalty of and sentence a person

       convicted of an offense[.]’” Id. (citation omitted). “It is well-settled under the




       4
         Gourley alleges a separation of powers violation under the U.S. Constitution, but he has not addressed the
       issue in his brief. We deem this claim to be waived.
       5
        Even if the trial court had not properly dismissed Gourley’s claim as barred by res judicata, as discussed
       above, we would find no separation of powers violation.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019                  Page 14 of 16
       doctrine of separation of powers that the Legislature cannot interfere with the

       discharge of judicial duties or set aside a final judgment of a court.” Id.


[28]   Gourley argues that, pursuant to his plea agreement, he was required to register

       as a sex offender for ten years after his release from prison. Gourley argues

       further that, through the belated SVP classification, “the court and the Indiana

       Attorney General, and the Indiana Department of Corrections” effectively

       interfered with the sentencing court’s discharge of its judicial duties and set

       aside the final judgment of the sentencing court. Appellant’s Br. p. 25.


[29]   In Harris, the appellant made a similar claim. Harris alleged “that the

       automatic designation of offenders as SVPs ‘by operation of law’ has the effect

       of permitting the DOC, an executive branch of state government to reopen final

       judgments and thereby exercise a function reserved to the judiciary by the

       Indiana Constitution.” Harris, 949 N.E.2d at 813-14.


[30]   In rejecting Harris’ claim, our supreme court reasoned that the “by operation of

       law” clause of the 2007 Amendment did not change a judicial determination

       because the sentencing court did not find that Harris was not an SVP. Rather, it

       was Harris’ own commission of a qualifying offense that made him an

       “offender” and, thereby, subject to the 2007 Amendment. See id. at 814-15.

       Further, the supreme court held that the “by operation of law” clause actually

       “preserves the judiciary’s role in determining the status of offenders and their

       likelihood to reoffend” by “leav[ing] to the courts . . . the power to determine




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 15 of 16
       [upon the SVP offender’s petition] the status of offenders and their likelihood of

       recidivism.” Id. at 815.


[31]   Guided by Harris, we conclude that the “by operation of law” provision of the

       2007 Amendment does not violate the separation of powers clause of the

       Indiana Constitution.


                                                 Conclusion
[32]   The trial court did not err in granting the State’s motion to dismiss on res

       judicata grounds. The “by operation of law” provision of the 2007 Amendment

       to Indiana Code Section 35-38-1-7.5 does not violate the ex post facto or

       separation of powers clauses of the Indiana Constitution. We affirm.


[33]   Affirmed.


[34]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-572 | January 18, 2019   Page 16 of 16
