      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 Dec 31 2015, 9:36 am
      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
      Jonathan L. Slone                                       Gregory F. Zoeller
      Wolcottville, Indiana                                   Attorney General of Indiana
                                                              Lyubov Gore
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jonathan L. Slone,                                      December 31, 2015
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              57A04-1503-CR-123
              v.                                              Appeal from the Noble Superior
                                                              Court
      State of Indiana,                                       The Honorable G. David Laur,
      Appellee-Plaintiff                                      Judge
                                                              Trial Court Cause No.
                                                              57D01-0208-FA-26



      Mathias, Judge.


[1]   Jonathan Slone (“Slone”), a convicted sex offender, appeals the Noble Superior

      Court’s denial of his petition to remove his sexually violent predator (“SVP”)


      Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015       Page 1 of 8
      designation. Slone argues that his designation as a sexually violent predator and

      the requirement that he register as sex offender for his lifetime violate his due

      process rights and the ex post facto provision of the Indiana Constitution.


[2]   We affirm.

                                     Facts and Procedural History


[3]   On August 14, 2002, the State charged Slone with Class A felony child

      molesting. Slone was convicted after a jury trial, and on October 15, 2003,

      Slone was sentenced to thirty years in the Department of Correction with five

      years suspended to probation. Slone appealed his conviction and sentence, and

      this court remanded to the trial court for re-sentencing in 2004. Slone v. State,

      No. 57A04-0312-CR-666 (Ind. Ct. App. Aug. 18, 2004). The trial court did not

      substantively change Slone’s sentence, and he then appealed the second

      sentencing order. On May 20, 2005, this court issued a memorandum decision

      affirming the trial court’s sentencing decision. Slone v. State, No. 57A03-0412-

      CR-559 (Ind. Ct. App. May 20, 2005). Shortly thereafter, Slone filed a petition

      for post-conviction relief, which he later withdrew.


[4]   In 2007, under Indiana Code section 35-38-1-7.5 (b)(C), Slone was classified as

      a sexually violent predator by operation of law. He then filed several motions

      for modification of sentence and another petition for post-conviction relief,

      which the trial court denied. Again in 2013 and 2014, Slone filed several more

      motions for modification of sentence, which the court also denied.



      Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 2 of 8
[5]   On January 14, 2015, Slone was released from the Indiana Department of

      Correction, and he subsequently filed a pro se petition to remove his sexually

      violent predator status on January 22, 2015. He also submitted a request for

      dismissal from sex offender counseling classes and permission for family

      visitation, which the trial court denied. Slone then filed a motion to correct

      error, which the trial court denied. Slone now appeals.

                                                 Due Process


[6]   First, Slone argues that under Indiana Code section 35-38-1-7.5, the trial court

      did not designate him as a sexually violent predator at his sentencing hearing

      and that doing so later violated his due process rights. Slone cites to Indiana

      Code section 35-38-1-7.5 (d) which provides that, “[a]t 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).”

[7]   However, effective May 10, 2007, the statute was amended and now mandates

      that an individual is a sexually violent predator “by operation of law” if the

      person committed a section 35-38-1-7.5(b) offense and he was released from

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

      Although Slone committed the child molesting offense in 2002 before the

      Amendment was effective, child molesting is classified as a section 35-38-1-

      7.5(b) offense, and he was released from the Department of Correction on

      January 14, 2015.


      Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 3 of 8
[8]   Slone is a sexually violent predator by operation of law due to his 2003 Class A

      felony child molesting conviction and is required to register for life. Lemmon v.

      Harris, 949 N.E.2d 803, 806 (Ind. 2011). Slone’s argument that he is improperly

      designated a sexually violent predator because the trial court did not designate

      him as such at his sentencing hearing has no merit. See Lemmon, 949 N.E.2d at

      808-09 (stating “under the 2007 Amendment, the Legislature had changed the

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

      to the ‘automatic designation of SVP status.’” “At 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”). Therefore, Slone’s due process rights

      were not violated.

                                               Ex Post Facto


[9]   Slone also contends that his designation as a sexually violent predator and the

      requirement that he register as a sex offender for his lifetime violate the ex post

      facto clause of the Indiana Constitution. Specifically, Slone argues that the

      application of INSORA’s 2007 Amendment requiring sexually violent

      predators to register for life is a retroactive punishment. 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

      Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 4 of 8
       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)).

[10]   When we consider ex post facto claims, we assess the alleged violation using

       the factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and

       adopted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009).

       See also Gonzales v. State, 980 N.E.2d 312, 317 (Ind. 2013) (stating “[i]n

       evaluating an ex post facto claim under the Indiana Constitution we apply what

       is commonly known as the ‘intent-effects test’”). The intent-effects test directs

       us to determine whether the Legislature intended the Act to be a regulatory

       scheme that is civil and non-punitive. Wallace, 905 N.E.2d at 379. The factors

       include:


               [1] [w]hether 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.


[11]   When we apply the intent-effects test here, we look to Lemmon v. Harris, 949

       N.E.2d 803 (Ind. 2011), for guidance. In that case, Harris was convicted of
       Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 5 of 8
several counts of child molesting in 1999 before lifetime registration was

required under INSORA. However, on the date Harris committed his offenses,

sex offenders were required to register for ten years. Id. at 807. Prior to his

releases in 2007 and 2008, the Department of Correction informed Harris that

he was required to register as a sexually violent predator. Id. at 805. Like Slone,

Harris argued that the sexually violent predator classification was a violation of

the ex post facto clause. Id. After weighing the seven factors, our supreme court

concluded:


            1. [T]he Act imposes significant affirmative obligations
               because Harris must register, re-register, disclose public
               and private information, and keep that information
               updated.


            2. The registration requirements of the Act have a
               dissemination component that resembles shaming as
               punishment for the act.


            3. Harris’s qualifying offense is one of the few included in the
               Act for which there is no scienter requirement.


            4. The Act deters criminal conduct and promotes community
               condemnation of offenders which are traditional aims of
               punishment but these effects apply the same to an offender
               who is required to register for ten years as to one who is
               required to register for life. Harris is not in a different
               position than before the 2007 Amendment, so this factor
               should lean toward treating the effects of the acts as non-
               punitive when applied to Harris.




Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 6 of 8
                   5. The Act applies only to criminal behavior, which suggests
                      that its effects are punitive. However, Harris was already
                      required to register because his behavior was criminal
                      before the 2007 Amendment.


                   6. [T]he Act advances a legitimate regulatory purpose
                      because it promotes public safety by protecting the public
                      from repeat sex offenders.


                   7. The Act’s requirements are not excessive in relation to its
                      legitimate, regulatory purpose because Harris was already
                      subject to the registration requirements based on when he
                      was convicted and the 2007 Amendment also provides a
                      process by which Harris may ask to no longer be
                      considered a SVP.


       Id. at 811-13.


[12]   Although the first three factors leaned toward treating the Act as punitive, the

       remaining four factors leaned in favor of treating the Act as non-punitive when

       applied to Harris. Id. at 813. See also Jensen v. State, 905 N.E.2d 384, 394 (Ind.

       2009) (concluding that the effects of the act were non-punitive when applied to

       Jensen because the “broad and sweeping” disclosure requirements were in place

       and applied to Jensen at the time of his guilty plea in 2000; therefore, requiring

       him to register under the 2006 Amendment to the Act does not violate

       Indiana’s constitutional prohibition against ex post facto laws).

[13]   Here, several of the intent-effects test factors weigh in favor of treating

       INSORA as non-punitive when applied to Slone. When Slone committed child

       molesting in 2002 he was required to register as a sex offender for ten years.

       Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 7 of 8
       Therefore, he was required to register prior to the 2007 INSORA Amendment.

       See Lemmon, 949 N.E.2d at 812-813. Our courts have consistently held that

       INSORA advances a legitimate regulatory purpose to protect the public from

       repeat sex offenders. And importantly, like the 2006 amendment, the 2007

       amendment provides that in ten years from the date of Slone’s release from

       prison, the time frame he was originally required to register, he may petition the

       court to consider whether he should no longer be considered a sexually violent

       predator. Ind. Code § 35-38-1-7.5(g) (Supp. 2007). We therefore conclude that

       Slone’s designation as a sexually violent predator and the accompanying

       registration requirements do not violate Indiana’s constitutional ex post facto

       prohibition.

                                                  Conclusion


[14]   For all of these reasons, we affirm the trial court’s denial of Slone’s petition to

       remove the designation of his status as a sexually violent predator.

[15]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015   Page 8 of 8
