Dickie D. Bridges v. State of Indiana , 109 N.E.3d 453 ( 2018 )

FILED
Aug 22 2018, 9:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michelle F. Kraus Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dickie D. Bridges, August 22, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-373
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1708-F5-214
Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 1 of 7
[1] Dickie Bridges is charged with Level 5 Felony Failure to Register as a Sex
Offender.1 Bridges moved to dismiss that charge and to remove him from the
sex offender registry. He brings this interlocutory appeal from the trial court’s
denial of his motion, arguing that the tolling of his registration period violated
the ex post facto clause of the Indiana Constitution. Finding no error, we
affirm.
Facts
[2] On October 7, 2002, Bridges was convicted of two counts of Class C felony
child molesting. As a result, Bridges was required to register with the sex
offender registry for ten years pursuant to Indiana’s Sex Offender Registration
Act.2 On May 16, 2006, Bridges was released from prison, and his ten-year
registration requirement began. On that day, his registration requirement was
scheduled to end on May 16, 2016.3
[3] The General Assembly amended Indiana Code section 11-8-8-19, effective July
1, 2008, to toll the registration requirements for offenders who commit
additional offenses that result in incarceration. Specifically, the amendments
required that, if the offender is convicted of a subsequent offense, the
1
Ind. Code § 11-8-8-17(a)(1).
2
Ind. Code § 11-8-8-1 et seq.
3
Pursuant to legislative amendments to the Act, around the time of his release, Bridges’s registration
requirement was changed to a lifetime requirement; then, pursuant to Gonzalez v. State, 980 N.E.2d 312 (Ind.
2013), it reverted to the ten-year period at issue in this case.
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 2 of 7
registration period must be tolled during any period that the offender is
incarcerated for that subsequent offense. The amendments did not mandate
that the ten-year period restart if the offender is convicted and incarcerated for a
subsequent offense.
[4] After 2008, Bridges was convicted of the following offenses:
• On April 28, 2010, Bridges was charged with felony4 operating while
intoxicated, an offense alleged to have occurred in March 2010. On
August 2, 2010, Bridges was convicted of this offense and received a
suspended sentence that was later revoked.
• On March 7, 2011, Bridges was convicted of Class D felony failure to
register as a sex offender and sentenced to two executed years.
• On August 2, 2013, Bridges was convicted of Class C felony failure to
register as a sex offender and sentenced to four executed years.
[5] When Bridges was released from prison on January 29, 2017, the State advised
him that he was required to register as a sex offender. The State applied the
2008 amendments’ tolling provision to Bridges’s 2010, 2011, and 2013
convictions, and as a result, the State required Bridges to register as a sex
offender until January 4, 2020. Bridges did not register during the period of
June 29 to July 17, 2017.
[6] On August 3, 2017, the State charged Bridges with Level 5 felony failure to
register as a sex offender. On October 23, 2017, Bridges filed a motion to
dismiss and to remove himself from the sex offender registry, challenging the
4
The class of felony is not available in the record.
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 3 of 7
State’s application of the 2008 amendments to the tolling of his registration
requirement. On October 27, 2017, an evidentiary hearing took place, and on
January 25, 2018, the trial court denied Bridges’s motion. Bridges now brings
this interlocutory appeal.
Discussion and Decision
[7] Bridges’s sole argument on appeal is that the trial court erred by denying his
motion to dismiss and to remove him from the sex offender registry. 5
Specifically, Bridges argues that the application of the 2008 amendments, which
became effective after his initial offense, violates Indiana’s constitutional
prohibition against ex post facto laws.
[8] Bridges’s argument on appeal is a question of law, which we consider de novo.
Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). When a party challenges a statute
as an alleged violation of the Indiana Constitution, that party bears the burden
of proof and all doubts are resolved against that party. Jensen v. State, 905
N.E.2d 384, 390 (Ind. 2009). “If two reasonable interpretations of a statute are
available, one of which is constitutional and the other not, we will choose that
path which permits upholding the statute because we will not presume that the
legislature violated the constitution unless the unambiguous language of the
5
Bridges also briefly mentions that there is a question as to whether the amount of time to toll his registration
period was properly calculated, but then states that this issue is not currently on appeal. Therefore, we
decline to address this issue.
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 4 of 7
statute requires that conclusion.” Id. (internal quotation marks and citation
omitted).
[9] The Indiana Constitution prohibits laws that impose punishment beyond what
was prescribed at the time the act was committed. Tyson, 51 N.E.3d at 92. The
principle fundamental to this prohibition is that people have a right to fair
warning of the criminal penalties that may result from their conduct. Id.
Specifically, our Constitution provides that “[n]o ex post facto law . . . shall
ever be passed.” Ind. Const. Art. 1, § 24. Article 1, Section 24 “forbids laws
imposing punishment for an act that was not otherwise punishable at the time it
was committed or imposing additional punishment for an act then proscribed.”
Lemon v. Harris, 949 N.E.2d 803, 809 (Ind. 2011). “The critical question in
evaluating an ex post facto claim ‘is whether the law changes the legal
consequences of acts completed before its effective date.’” Sewell v. State, 973
N.E.2d 96, 102 (Ind. Ct. App. 2012) (quoting Weaver v. Graham, 450 U.S. 24, 31
(1981)) (italics omitted).
[10] Since it was amended in 2008, Indiana Code section 11-8-8-19 states that the
sex offender registration requirement applies until the expiration of ten years
after the date the offender is either released from a penal facility; placed in a
community transition program; placed in a community corrections program;
placed on parole; or placed on probation for the sex offense requiring
registration, whichever occurs last. The statute also states that “[t]he
registration period is tolled during any period that the sex or violent offender is
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 5 of 7
incarcerated. The registration period does not restart if the offender is
convicted of a subsequent offense.” I.C. § 11-8-8-19.
[11] Bridges contends that the 2008 amendments’ tolling provision was applied to
him retroactively and therefore violated our state’s prohibition against ex post
facto laws. But Bridges committed his subsequent offenses in 2010, 2011, and
2013, years after the 2008 amendments became effective. Thus, no retroactive
application took place, and without retroactive application, there can be no ex
post facto violation. Indeed, this statute does not necessarily apply to all people
who have already committed sex offenses—rather, the statute’s plain language
makes clear that it applies only to people who, after having committed a sex
offense, subsequently commit an additional offense that leads to a new sentence
of incarceration. Bridges’s registration was tolled not because of his 2002 child
molestation conviction, but because, after his release in 2006 and after the 2008
amendments became effective, he committed and was convicted of and
sentenced for new offenses. And because Bridges committed his subsequent
offenses years after the 2008 amendments became effective, he had fair notice
and warning that he would be subjected to the tolling provision for his
registration if he became incarcerated after 2008.
[12] Bridges contends that extending his registration to 2020 does not take into
account the nearly four years that he was on the registry during his
incarceration. It is true that Bridges’s profile remained on the registry—and its
public website—while he was incarcerated; his profile showed that he was
incarcerated during that time. That Bridges spent four years on the registry
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 6 of 7
without receiving credit for that time is a point well taken. However, that is a
policy argument to take to the General Assembly, not an argument for this
Court, which “may not interpret a statute that is clear and unambiguous on its
face.” Denney v. State, 773 N.E.2d 300, 301 (Ind. Ct. App. 2002). Because the
statute that contains the tolling provision is clear and unambiguous on its face,
we are compelled to find that tolling Bridges’s registration did not change the
legal consequences of the acts that he completed before the 2008 amendments
became effective.
[13] In sum, tolling Bridges’s registration on the sex offender registry did not violate
our state’s prohibition against ex post facto laws.
[14] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Opinion 18A-CR-373 | August 22, 2018 Page 7 of 7