                                                                      FILED
                                                                 Jun 16 2016, 9:13 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
William R. Dixon                                           Gregory F. Zoeller
Michigan City, Indiana                                     Attorney General of Indiana

                                                           Aaron T. Craft
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William R. Dixon,                                          June 16, 2016
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A04-1505-PL-484
        v.                                                 Appeal from the Marion Superior
                                                           Court
Indiana Department of                                      The Honorable Cynthia J. Ayers,
Correction,                                                Judge
Appellee-Defendant.
                                                           The Honorable Anne M.
                                                           Flannelly, Magistrate
                                                           Trial Court Cause No.
                                                           49D04-1209-PL-35754




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                   Page 1 of 11
[1]   William R. Dixon appeals the trial court’s grant of summary judgment in favor of

      the Indiana Department of Correction (“DOC”). He raises four issues which we

      consolidate and restate as whether the trial court properly granted summary

      judgment to the DOC. We affirm.


                                          Facts and Procedural History

[2]   The facts underlying Dixon’s convictions stem from an August 8, 2003 incident in

      Starke County and are as follows:


                 Dixon robbed a grocery store in one Indiana county and then
                 fled to an adjacent county where he entered the victims’ home to
                 hide from the police. He then ordered the victim/mother to
                 drive her car while Dixon, armed with a gun, rode in the trunk
                 with the victim/son. Once the car was safely through the police
                 roadblock, the victim/mother stopped the vehicle, and Dixon
                 and the victim/son emerged from the trunk. Dixon left in the
                 vehicle, and the victims walked until they found help. Dixon
                 was eventually captured and pleaded guilty to two counts of
                 kidnapping, one count of robbery, and one count of resisting law
                 enforcement.


         Dixon v. State, 825 N.E.2d 1269, 1270-1271 (Ind. Ct. App. 2005), trans. denied.

         The “victim/son” referenced in this Court’s previous opinion was under twelve

         years old at the time. Id. at 1272. In 2004, Dixon pled guilty and was convicted

         of two counts of kidnapping as class A felonies, one count of robbery as a class

         B felony, and one count of resisting law enforcement as a class D felony. He is

         currently incarcerated at the Indiana State Prison where he is serving a sentence

         of seventy-six and one-half years for his convictions.



         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016   Page 2 of 11
[3]   Dixon was convicted of kidnapping under Ind. Code § 35-42-3-2 (Supp. 2003)

      where the victim was under eighteen years old, and conviction for that offense 1

      made him eligible for inclusion, pursuant to the Indiana Sex Offender Registry Act

      (the “Act”) on the Indiana Sex Offender Registry, upon his release from

      incarceration. His earliest possible release date is November 5, 2041. Pursuant to

      the Act, Dixon was classified as a sex offender on the DOC’s internal classification

      system. Individuals classified as sex offenders participate in treatment through the

      Sex Offender Management and Monitoring Program (“SOMM”) three years prior

      to release from incarceration.2


[4]   In 2008, Dixon filed an appeal of his classification, which was denied, and he

      remains classified as a sex offender on the DOC’s internal classification system. In

      December 2011, Dixon requested a “packet review” of his offender information

      packet, and Dan Bodlovich, head of classification, wrote in response that

      kidnapping a minor “is a registerable sex offense” under the Act and also that the




         1
           At the time of Dixon’s offense, Ind. Code § 5-2-12-4(a)(11) (Supp. 2003) provided, in part, that “[a]s used in
         this chapter, ‘offender’ means a person convicted of any of the following sex and violent offenses: . . . (11)
         Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age.” Indiana Code § 5-2-12-4 was
         subsequently amended by Pub. L. No. 51-2005, § 1 and was repealed by Pub. L. No 140-2006, § 41, and Pub.
         L. No. 173-2006, § 55). The relevant provision is now found at Ind. Code § 11-8-8-4.5 and was added by
         Pub. L. No. 216-2007, § 12 and has been subsequently amended by Pub. L. No. 1-2012, § 2 (eff. Jan. 30,
         2012); Pub. L. No. 72-2012, § 1; Pub. L. No. 13-2013, § 41 (eff. April 1, 2013); Pub. L. No. 214-2013, § 4 (eff.
         July 1, 2013); Pub. L. No. 158-2013, § 171 (eff. July 1, 2014); Pub. L. No. 168-2014, § 20 (eff. July 1, 2014)
         and Pub. L. No. 185-2014, § 2 (eff. July 1, 2014).
         2
          See Bleeke v. Lemmon, 6 N.E.3d 907, 923 (Ind. 2014) (discussing details of Indiana’s SOMM program, which
         has been in existence since 1999).

         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                            Page 3 of 11
      Act’s registerable violent offenses are murder and voluntary manslaughter. 3

      Appellant’s Appendix at 86-87.


[5]   On September 12, 2012, Dixon, pro se, filed a verified complaint for injunctive and

      declaratory relief against the DOC in the Marion Superior Court. The complaint

      requested that the trial court declare the DOC’s classification of him as a sex

      offender in violation of the Federal and State ex post facto clauses and a violation of

      his right to due process under the Federal and State Constitutions, as well as a

      permanent injunction requiring the DOC to remove him from “the operation of the

      Policy” labeling him a sex offender. Id. at 149. On December 13, 2012, the DOC

      filed a motion to dismiss along with a memorandum of law. The court denied the

      DOC’s motion to dismiss on June 18, 2013, and on August 7, 2013, the DOC filed

      an answer to Dixon’s complaint.4 On May 16, 2014, Dixon filed a motion for

      default judgment, which the court denied on August 26, 2014. The court

      scheduled a pre-trial conference for October 21, 2014 and a bench trial for October

      28, 2014. An entry in the trial court’s chronological case summary (“CCS”) on

      October 22, 2014, shows that the bench trial previously scheduled for October 28,

      2014, was cancelled by reason of “[j]udicial [a]ction.” 5 Id. at 44. Another entry in




         3
          Attempted murder and attempted voluntary manslaughter are also violent offenses for purposes of the Act.
         See Ind. Code § 11-8-8-5(a)(21) (Supp. 2012); see also Gibson v. Ind. Dep’t of Correction, 899 N.E.2d 40, 44 (Ind.
         Ct. App. 2008), trans. denied.
         4
             The DOC’s answer is not in the record.
         5
             The record does not explain the meaning of the phrase, “judicial action.” Appellant’s Appendix at 44.


         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                               Page 4 of 11
      the CCS, dated October 23, 2014, states: “Jacket Entry: Defendant to file motion

      for summary judgment. Bench trial vacated.” Id.


[6]   On December 18, 2014, the DOC filed a motion for summary judgment,

      designation of evidence, and a memorandum of law. On January 15, 2015, Dixon

      filed his response to the DOC’s motion and a designation of evidence. Following a

      hearing on April 29, 2015, at which Dixon appeared telephonically and the DOC

      appeared by counsel, the court granted the DOC’s motion for summary judgment

      that same date. The order provides in part:


                 The Court FINDS that the Plaintiff was convicted May 11, 2004
                 in Starke County, Indiana, in cause 75C01-0308-FA008 of
                 Kidnapping, a Class A Felony; Kidnapping (of a Minor), a Class
                 A Felony; Robbery, a Class B Felony; and Resisting Law
                 Enforcement, a Class D Felony. Plaintiff’s total sentence was 76
                 ½ (seventy six and one-half) years in the Indiana Department of
                 Correction, with an earliest projected release date of November
                 5, 2041. The Department of Correction classified the Plaintiff as
                 a sex offender under the Indiana sex offender statute because he
                 kidnapped a child. Under current law, the Plaintiff would be
                 required to attend the Indiana Sex Offender Management and
                 Monitoring Program (“SOMM”) three years before his release
                 date; that is, the Plaintiff would not have to participate in the
                 program until approximately 2037. The Plaintiff’s claims are not
                 ripe for adjudication, because his participation in the SOMM
                 program and requirement to register as a sex offender will not
                 occur for at least another 26 years. I.C. 11-8-8-4.5 is not an ex-
                 post facto law as applied to the Plaintiff. When the Plaintiff
                 committed Kidnapping (of a minor) in 2003, Indiana Code 5-2-4-
                 2-4 listed a person who kidnapped a victim less than eighteen
                 (18) years of age as one definition of an offender under the sex
                 offender statute. The Indiana Department of Correction is not
                 applying any law that was not in place when the Plaintiff

         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016   Page 5 of 11
                  committed his crime. The Plaintiff’s challenge to participate in
                  the SOMM program is not ripe for adjudication. The Plaintiff’s
                  challenge to any obligation he may have to register as a sex
                  offender is also not ripe for adjudication.


                  The Court FINDS that there is no genuine issue of material fact
                  pursuant to Indiana Rule of Trial Procedure 56 and the
                  Defendant is entitled to judgment in its favor as matter of law on
                  the issues raised in the Defendant’s Motion for Summary
                  Judgment.


      Appellant’s Appendix at 53-54.


                                                         Discussion

[7]   The issue is whether the trial court erred in granting the DOC’s motion for

      summary judgment.6 We note that Dixon is proceeding pro se, and that such

      litigants are held to the same standard as trained counsel. Evans v. State, 809

      N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. To the extent he fails to

      develop a cogent argument or cite to the record, we conclude such arguments are

      waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002)




         6
           Dixon also asserts that the trial court violated his due process right to be heard when it cancelled a
         previously scheduled bench trial to hear the DOC’s motion for summary judgment. Indiana Trial Rule 56(B)
         provides that a defending party “may, at any time, move with or without supporting affidavits for a summary
         judgment in his favor as to all or any part thereof.” Due process generally includes the right to be heard, see
         Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008), and Dixon had the opportunity to be heard at the
         summary judgment hearing, where, in addition to his response to the DOC’s motion for summary judgment
         and designation of evidence, he also presented argument in support of his position at the hearing. We cannot
         say that the cancellation of the bench trial to hold a hearing on the DOC’s motion for summary judgment
         resulted in any due process violation.

         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                           Page 6 of 11
      (holding argument waived for failure to cite authority or provide cogent argument),

      reh’g denied, trans. denied.


[8]   We review an order for summary judgment de novo, applying the same standard as

      the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving

      party bears the initial burden of making a prima facie showing that there are no

      genuine issues of material fact and that it is entitled to judgment as a matter of law.

      Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary judgment is improper

      if the moving party fails to carry its burden, but if it succeeds, then the nonmoving

      party must come forward with evidence establishing the existence of a genuine

      issue of material fact. Id. We construe all factual inferences in favor of the

      nonmoving party and resolve all doubts as to the existence of a material issue

      against the moving party. Id.


[9]   Dixon argues that his classification as a sex offender is ex post facto punishment

      which he states alters his “punishment phase, restrictions, and registration

      requirements, which includes length of time, SOMM program, where one could

      live and work” and that he will experience “a new social stigma which will weight

      [sic] heavier on Dixon’s mental anguish than it would as being seen by society or

      his peers as an ex-violent offender, rather than being seen as SO/ZSO.”

      Appellant’s Brief at 9. He asserts that his claim is ripe for review in that he is

      “being harmed presently by mental anguish, defamation of character, and a

      possible physical harm within a prison setting.” Id. at 16.




         Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016     Page 7 of 11
[10]   The State maintains that Dixon’s classification as a sex offender does not violate

       the ex post facto clause because “no law is being applied retroactively to classify him

       as a sex offender.” Appellee’s Brief at 26. It further argues that Dixon’s challenge

       to any obligation he may have to participate in the SOMM program and to register

       as a sex offender upon his release from incarceration is not ripe for review.


[11]   The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

       passed.” IND. CONST. art. 1, § 24. The ex post facto clause prohibits the Legislature

       from enacting “any law ‘which imposes a punishment for an act which was not

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

       then prescribed.’” Jensen v. State, 905 N.E.2d 384, 389 (Ind. 2009). “The

       underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental

       principle that persons have a right to a fair warning of that conduct which will give

       rise to criminal penalties.” Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009) (citing

       Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006), cert. denied, 549 U.S. 996,

       127 S. Ct. 513 (2006)), reh’g denied.


[12]   In this case, the version of the Act in effect at the time Dixon filed his complaint

       leaves him in the same position he was in when he committed the offense of

       kidnapping a minor. At the time of the complaint, Ind. Code § 11-8-8-4.5(a)(11)

       (Supp. 2012)7 provided, in part, that




          7
            The excerpted language from this subsection that was in effect at the time of the April 29, 2015 summary
          judgment hearing contains identical language.

          Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                          Page 8 of 11
        Except as provided in section 22 of this chapter, as used in this
        chapter, ‘sex offender’ means a person convicted of any of the
        following offenses:


                                                    *****



                 (11) Kidnapping (IC 35-42-3-2), if the victim is less than
                 eighteen (18) years of age, and the person who kidnapped
                 the victim is not the victim’s parent or guardian.


The designated evidence shows that when Dixon committed the offense his

crime was among those included as making him eligible to register on the sex

offender registry upon his release from incarceration. See Ind. Code § 5-2-12-

4(a)(11) (Supp. 2003) (defining an “offender” as “a person convicted of any one

of the following sex and violent offenses” and including, among other offenses,

“[k]idnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of

age”); Ind. Code § 5-2-12-5(i) (Supp. 2003) (providing that offenders shall

register with a sheriff or the police of a consolidated city and that “[t]he sheriff

with whom an offender registers under this section shall make and publish a

photograph of an offender on the Indiana sheriffs’ sex offender registry web site

established under IC 36-2-13-5.5) (emphasis added).8 Thus, the relevant statutes




8
 Indiana Code § 5-2-12-5 was subsequently amended by Pub. L. No. 64-2005, § 3 and repealed by Pub. L.
No 140-2006, § 41, and Pub. L. No. 173-2006, § 55. The relevant provision is now found at Ind. Code § 11-8-
8-7 and was added by Pub. L. No. 140-2006, § 13, and Pub. L. No. 173-2006, § 13, and has been amended by
Pub. L. No. 2-2007, § 151; Pub. L. No. 216-2007, § 15; Pub. L. No. 119-2008, § 5; Pub. L. No. 114-2012, §
24; and Pub. L. No. 214-2013, § 6, (eff. July 1, 2013).

Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                        Page 9 of 11
       in effect at the time of Dixon’s offense provided notice of the consequences of a

       conviction for kidnapping when the victim is less than eighteen years old. We

       conclude that Dixon is not being punished for conduct that was not punishable at

       the time it was committed nor is he being subjected to additional punishment to

       that prescribed at the time of the offense. His classification as a sex offender due to

       his conviction of kidnapping a minor does not violate the ex post facto clause of the

       Indiana Constitution.9


[13]   With respect to Dixon’s challenges to his participation in the SOMM program

       three years prior to his scheduled release from incarceration and to register as a sex

       offender when he is released, we cannot say that those claims are ripe for review.

       Ripeness “relates to the degree to which the defined issues in a case are based on

       actual facts rather than on abstract possibilities, and are capable of being

       adjudicated on an adequately developed record.” Ind. Dep’t of Envtl. Mgmt. v. Chem.

       Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The designated evidence

       shows that Dixon has been classified as a sex offender in the internal classification

       system of the DOC, and there is no indication in the record that he has been court-

       ordered to register as a sex offender or that he has been notified by any correctional

       authority or registry coordinator that he will be required to do so. Dixon would

       not begin participating in the SOMM program until approximately 2037, and his




          9
            To the extent Dixon argues his classification as a sex offender is a violation of the Federal ex post facto clause
          and having determined, as discussed above, that Dixon’s classification as a sex offender does not implicate
          the concerns of the ex post facto clause under the Indiana Constitution, we cannot say that he has
          demonstrated a violation under the Federal ex post facto clause.

          Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016                               Page 10 of 11
       earliest possible release date is November 5, 2041, which is over twenty-five years

       in the future. See Gardner v. State, 923 N.E.2d 959, 959-960 (Ind. Ct. App. 2009)

       (explaining that an inmate’s registration on the sex offender registry was

       determined to be “a matter of speculation as to what registration requirements, if

       any, will impact [defendant] upon his release, a minimum of five years in the

       future. Because there is no immediate dispute over whether [defendant] must

       register as a violent offender upon his release, there is no issue before us ripe for

       appellate review”), trans. denied.


[14]   As for Dixon’s assertion that he currently suffers loss of privileges and programs

       available to others and a stigma causing him mental anguish, even if we were to

       determine such claims are ripe they are based on his alleged erroneous

       classification, and we have already determined that he has not been erroneously

       classified. Therefore, such claims fail.


[15]   Based upon the designated evidence, the trial court did not err in granting

       summary judgment in favor of the DOC.


                                                        Conclusion

[16]   For the foregoing reasons, we affirm the trial court’s grant of summary judgment in

       favor of the DOC.


[17]   Affirmed.



       Baker, J., and May, J., concur.



          Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016    Page 11 of 11
