Jeffery Gourley v. State of Indiana (mem. dec.) , 121 N.E.3d 138 ( 2019 )

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