State of Indiana v. Douglas Woods Johnston , 2016 Ind. App. LEXIS 448 ( 2016 )

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.
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[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.”
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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.
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[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.
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(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
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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.
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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.
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[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.
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