                                                                               FILED
                                                                         Dec 13 2016, 9:37 am

                                                                               CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                        Matthew D. Anglemeyer
Attorney General of Indiana                               Marion County Public Defender
                                                          Indianapolis, Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         December 13, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1606-CR-1222
        v.                                                Appeal from the Marion Superior
                                                          Court
Douglas Woods Johnston,                                   The Honorable Kurt Eisgruber,
Appellee-Petitioner.                                      Judge
                                                          The Honorable Steven J. Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G01-0508-FC-147277



Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016                      Page 1 of 9
                                           Case Summary
[1]   The State of Indiana (“the State”) appeals the denial of a motion to correct

      error, which challenged an order granting the petition of Douglas Woods

      Johnston (“Johnston”) to relieve him of registration requirements under the

      Indiana Sex Offenders Registry Act, Indiana Code Section 11-8-8-1, et seq.,

      (“SORA”). The State presents the sole issue of whether Johnston was granted

      relief in contravention of statutory authority. We reverse.



                            Facts and Procedural History
[2]   On October 13, 2015, Johnston filed a “Request for Removal from Sex

      Offender Registry” pursuant to Indiana Code Section 11-8-8-22. (App. at 14.)

      Johnston, who has two convictions for Child Molesting, as Class C felonies,

      referenced only his 2006 conviction in his petition. He stated that he had been

      found guilty but mentally ill in 2006, and claimed that he was eligible for relief

      due to his age (fifty-nine years) and willingness to get continued treatment for

      his mental illness.


[3]   On January 26, 2016, the trial court conducted a hearing. At the outset,

      Johnston’s counsel advised the trial court that Johnston also had a Child

      Molesting conviction in 1997. Counsel further advised that Johnson had been

      arrested in 2013, but the charge was dismissed. Johnston then testified

      regarding his mental health treatment and the hardships of compliance with

      SORA requirements.


      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016   Page 2 of 9
[4]   At the conclusion of the hearing, the State objected that the petition was

      inadequate to permit the trial court to reach the issue of Johnston’s removal

      from the sex offender registry. Additionally, the State argued that Johnston had

      not met his burden of proof. Johnston’s counsel responded that Johnston was

      fifty-nine years old, living on disability, and “absolutely limited by his

      requirement to register.” (Tr. at 13.) Counsel urged that Johnston’s 2006

      conviction should be distinguished because he had been found guilty but

      mentally ill (“GBMI”). The trial court took the matter under advisement.


[5]   On February 10, 2016, the trial court entered an order that Johnston be required

      to register as a sex offender only up until July 28, 2016, ten years after his 2006

      conviction. The Indiana Department of Correction (“the DOC”) filed a motion

      to intervene, which was granted. The DOC filed a motion to correct error and

      the trial court set a hearing date. However, the DOC did not appear at the

      hearing and the trial court summarily denied the motion to correct error. This

      appeal ensued.1




      1
       Indiana Code Section 11-8-8-22(l) provides: “The attorney general may initiate an appeal from any order
      granting an offender relief under this section.”

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016                   Page 3 of 9
                                 Discussion and Decision
                                        Standard of Review
[6]   Generally, we review a trial court’s ruling on a motion to correct error for an

      abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.

      App. 2010), trans. denied. However, to the extent the issues raised on appeal are

      purely questions of law, our review is de novo. Id.


                                                  Analysis
[7]   The facts underlying Johnston’s convictions were not developed in testimony or

      evidentiary exhibits in the proceedings below. However, it has been alleged

      that Johnston’s most recent victim was six years old. If so, Johnston would

      have been subject to life-time registration requirements pursuant to Indiana

      Code Section 11-8-8-19(c) (requiring, as was required in 2006, that an offender

      who was at least age 18 who molested a child under age 12 must register as a

      sex offender for life). Also, as was true in 2006, “A sex or violent offender who

      is convicted of at least two (2) unrelated offenses under section 5(a) of this

      chapter is required to register for life.” Ind. Code § 11-8-8-19(e). Finally, an

      offender who commits a sex offense while having had a previous unrelated

      conviction for a sex offense requiring registration is classified as a sexually

      violent predator (“SVP”) and an SVP is subject to a life-time reporting

      requirement. I.C. §§ 35-38-1-7.5(b)(2), 11-8-8-19(b). Thus, by all indications,

      Johnston was subject to life-time reporting requirements when he petitioned for

      relief.

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016   Page 4 of 9
[8]   Johnson petitioned for, and was granted, relief from registration requirements

      pursuant to Indiana Code Section 11-8-8-22. This statute provides a

      mechanism whereby a sex offender may petition to remove a designation or

      register under less restrictive conditions. Subsection (k) requires that the

      petition must be submitted under the penalties of perjury and list each criminal

      conviction with specifications including the corresponding state, court, and

      date. After receiving the petition, the trial court may summarily dismiss it or

      may set the matter for hearing. In the latter event, the trial court is to give

      notice at least sixty days in advance of the hearing to the DOC, the Attorney

      General, one or more prosecuting attorneys 2 and the Sheriff in the offender’s

      county of residence.


[9]   According to subsection (h): “The petitioner has the burden of proof in a

      hearing under this section.” Subsection (j) permits an offender to base a

      petition “on a claim that the application or registration requirements constitute

      ex post facto punishment.” Also, subsection (g) provides that a court may grant

      a petition if, following a hearing, the court makes the following findings:

               (1) The law requiring the petitioner to register as an offender has
                   changed since the date on which the petitioner was initially
                   required to register.




      2
        Those entitled to notice include prosecutors in the county where the petition was filed, in the county where
      the most recent relevant conviction took place, and the county where the offender resides.

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016                       Page 5 of 9
               (2) If the petitioner who was required to register as an offender
                   before the change in law engaged in the same conduct after
                   the change in law occurred, the petitioner would:


                   (A) not be required to register as an offender; or


                   (B) be required to register as an offender, but under less
                       restrictive conditions.


               (3) If the petitioner seeks relief under this section because a
                   change in law makes a previously unavailable defense
                   available to the petitioner, that the petitioner has proved the
                   defense.


[10]   Here, the petition did not comply with the requirements of subsection (k). It

       was not submitted under penalties of perjury and one of Johnston’s convictions

       was omitted. The chronological case summary does not reflect the provision of

       requisite notice to the DOC and the Attorney General. In his petition and at

       the hearing, Johnston made no claim that he was subject to ex post facto

       punishment. Nor did Johnston argue at the hearing that he had satisfied his

       statutory burden of proof with respect to subsection (g). Rather, counsel urged:

       “The most significant thing to me seem[s] to be his last conviction in 2006,

       where he was convicted and found guilty but mentally ill, and I think that kind

       of sums up the whole thing.” (Tr. at 13.) Counsel then argued that “the most

       important thing” was facilitating Johnston’s relationships with his mental

       health treatment providers “in some hope for a better quality of life.” (Tr. at

       13.) In culmination, the trial court did not make particular findings relative to a



       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016   Page 6 of 9
       change in the law as described in subsection (g) nor did the trial court address

       ex post facto punishment.


[11]   On appeal, the State argues that Johnston did not establish his entitlement to

       relief from life-time registration requirements, and likely cannot do so. As a

       threshold matter, however, the State argues that the deficient petition should

       have been dismissed with prejudice, consistent with In re Ohio Conviction against

       Gambler, 939 N.E. 2d 1128 (Ind. Ct. App. 2011). Johnston concedes that he

       cannot establish grounds for relief relative to a change in the law as described

       by Indiana Code Section 11-8-8-22(g)(2), but argues that the trial court

       “implicitly” found that he had been subjected to an ex post facto punishment.

       Appellee’s Br. at 19.3


[12]   Notwithstanding his expansive view of the trial court’s order, Johnson did not

       present and develop an ex post facto punishment argument in the court below.

       Rather, Johnston essentially made an appeal for compassionate relief. Based




       3
         Johnston directed our attention to Flanders v. State, 955 N.E.2d 732 (Ind. Ct. App. 2011), trans. denied.
       There, in post-conviction proceedings, an offender who was classified as a SVP after amendments to SORA
       challenged his designation on ex post facto grounds. Indiana Code Section 35-38-1-7.5 had been amended to
       clarify that certain convictions qualify an offender as a SVP by operation of law. It was also amended to
       disallow a person with two unrelated convictions for sex offenses to petition for removal of the SVP
       designation. The Flanders Court concluded “that a 2007 amendment that eliminated [Flanders’] eligibility to
       petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied
       to Flanders.” Id. at 735. The violation was to be remedied “by reinstating his eligibility to petition for a
       change in status after his initial ten-year requirement to register has passed.” Id. Accordingly, even if
       Johnston had made and succeeded upon a challenge like that in Flanders, the proper remedy would not have
       been the order for termination of registration at the ten-year mark as obtained by Johnston. Rather, Johnston
       would be afforded the opportunity to seek review of his future dangerousness or rehabilitation yearly after
       registering for ten years. See id. at 752-53. It is noteworthy, however, that neither of Flanders’ offenses,
       individually, would qualify him as an SVP as a matter of law. Id. at 747.

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016                        Page 7 of 9
       upon the limited record before us, we agree with the position taken by the State

       at the hearing, that is, the petition was inadequate to afford the trial court an

       opportunity to provide Johnston relief.


[13]   In Gambler, an offender seeking removal from the Indiana sex offender registry

       sent a letter to the trial court and the trial court treated the letter as a motion for

       removal. 939 N.E.2d at 1129. The letter was not submitted under the penalties

       of perjury, did not list the required details for each conviction, and did not

       explicitly state in which jurisdictions he was required to register as a sex

       offender. Id. at 1131. Gambler obtained relief and the DOC appealed. A panel

       of this Court reversed the order granting relief:

               Gambler’s letter was insufficient to raise the issue of whether the
               trial court would remove him from the sex offender registry. On
               the face of it, the trial court erred in determining Gambler’s letter
               provided sufficient information to proceed in this matter.


               Further, even if Gambler’s letter was sufficient to constitute a
               petition under this statute, the trial court must either summarily
               dismiss it or give notice to several government actors and set the
               matter for a hearing before proceeding. Ind. Code § 11-8-8-22(e).
               Prior to granting a petition, the trial court must hold a hearing
               and make several particular findings. See Ind. Code § 11-8-8-
               22(g). Here, the record does not indicate the trial court provided
               notice to the necessary government actors or held a hearing on
               the matter. Therefore, on the face of the record, DOC has
               demonstrated prima facie error in granting Gambler’s petition.


       Gambler, 939 N.E.2d at 1131-32.



       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016    Page 8 of 9
[14]   The infirmities in the instant petition and process are not exactly the same as

       those in Gambler, and Johnston advances an argument that is essentially one of

       substantial compliance. Here, notwithstanding an apparent deficiency in

       notice, an attorney appeared on behalf of the State at the hearing. Critically,

       however, the unsworn petition did not identify a statutory basis upon which

       relief could properly be granted and none was developed at the hearing. The

       focus of the limited testimony and argument was upon Johnston’s mental

       illness treatment and hardships, and the fact that his last conviction had been a

       GBMI conviction. Even so, there was no revelation of a statutory distinction

       between a conviction and a GBMI conviction under SORA. In these

       circumstances, the trial court did not – and could not properly – enter the

       requisite statutory findings. Lacking a proper statutory-based petition for relief,

       the trial court should have granted the State’s request for dismissal of

       Johnston’s petition.



                                               Conclusion
[15]   Because Johnston’s inadequate petition should have been dismissed, the denial

       of the motion to correct error was an abuse of the trial court’s discretion.


[16]   Reversed and remanded with instructions that the trial court dismiss the matter

       without prejudice subject to further proceedings in the event Johnston files a

       sufficient petition.


       Najam, J., and May, J., concur.

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016   Page 9 of 9
