Willie L. Montgomery v. State of Indiana , 14 N.E.3d 76 ( 2014 )

Jul 23 2014, 10:15 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIE L. MONTGOMERY, )
)
Appellant-Defendant, )
)
vs.
) No. 82A05-1401-CR-34
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
INTERLOCUTORY APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Senior Judge
The Honorable Kelli Fink, Magistrate
Cause No. 82C01-1207-FD-916
July 23, 2014
OPINION–FOR PUBLICATION
BAKER, Judge
In this interlocutory appeal, appellant-defendant Willie Montgomery challenges
the trial court’s denial of his motion to dismiss the charge of Failure to Register as a Sex
or Violent Offender1 in Vanderburgh County. Montgomery argues that the trial court
erred in dismissing his motion because he had already been prosecuted for failing to
register as a sex offender in Pike County. More particularly, Montgomery contends that
prosecuting him for failing to register in both counties is barred under Indiana Code
section 35-34-1-4(a)(7) and violates double jeopardy principles. We find that the charge
in question is not barred under Indiana Code section 35-34-1-4(a)(7) and does not violate
double jeopardy principles. We remand to the trial court for trial.
FACTS
On November 5, 2010, Montgomery was convicted of sexual battery. As a result
of this conviction, Montgomery was required to register as a sex offender. On November
8, 2011, he registered as a sex offender with the Pike County Sheriff’s Office.
On July 6, 2012, Indiana State Police Sergeant Detectives Marty Metzger and Tim
Keller drove to Montgomery’s registered address to ensure compliance. However, when
they arrived, Montgomery’s parents informed the officers that Montgomery had moved
out of the home. They told the officers that Montgomery had moved in with his
girlfriend, Gabrielle Evans, who lived in Vanderburgh County.
1
Ind. Code § 11-8-8-17(a).
2
The officers then went to Evans’s residence, where they verified that Montgomery
was living with Evans. Montgomery admitted that he had failed to register as a sex
offender in Vanderburgh County and that he had not changed his principal address in
Pike County.
On July 18, 2012, Montgomery was charged with failure to register in Pike
County. The following day, July 19, 2012, Montgomery was charged with failure to
register in Vanderburgh County. Montgomery pleaded guilty to failing to register in Pike
County on October 3, 2012. On March 6, 2013, he filed a motion to dismiss the charge
of failing to register in Vanderburgh County, arguing that the prosecution in Vanderburgh
County was barred by a previous prosecution pursuant to Indiana Code 35-34-1-4(a)(7)
and the Fifth Amendment to the Constitution. On April 16, 2013, the trial court denied
Montgomery’s motion after holding a hearing on the matter.
On April 19, 2013, Montgomery filed a motion to certify for interlocutory appeal
in the trial court, and the trial court granted the motion that same day.2 On January 19,
2014, Montgomery renewed his motion to dismiss and motion to certify for interlocutory
appeal in the trial court; the trial court denied the motion to dismiss and granted the
motion to certify for interlocutory appeal that same day. This Court accepted jurisdiction
over the interlocutory appeal on February 24, 2014.
2
Montgomery’s first interlocutory appeal was dismissed by this Court because he failed to seek the
interlocutory appeal as a discretionary appeal under Appellate Rule 14(B). See Montgomery v. State, No.
82A-1305-CR-246, memo op. (Ind. Ct. App. Dec 9, 2013).
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DISCUSSION AND DECISION
I. Standard of Review
We review a ruling on a motion to dismiss for an abuse of discretion. Ingram v.
State, 760 N.E.2d 615, 618 (Ind. Ct. App. 2001). An abuse of discretion occurs when the
trial court’s decision is against the logic and effect of the facts and circumstances before
it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct. App. 2005).
However, as Montgomery’s arguments require interpretation of the failure to
register statute, our review of this question of law is de novo. Houston v. State, 898
N.E.2d 358, 361 (Ind. Ct. App. 2008). When reviewing a matter de novo, we owe no
deference to the trial court’s legal conclusions. Kibbev v. State, 733 N.E.2d 991, 995
(Ind. Ct. App. 2000).
II. Montgomery’s Claim
Montgomery argues that the trial court erred when it denied his motion to dismiss
because a plain reading of Indiana Code section 11-8-8-11(a) in conjunction with Indiana
Code section 11-8-8-17 creates a single duty for a sex offender to register with the
appropriate law enforcement officials when moving between counties in Indiana.
Therefore, Montgomery contends he can only be guilty of one offense.
Montgomery, as a sex or violent offender, was required to register pursuant to
Indiana Code section 11-8-8-7. When he moved to Vanderburgh County, Indiana Code
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section 11-8-8-11(a)3 required him to report to officials in Pike County and in
Vanderburgh County. That section provides:
(a) If a sex or violent offender who is required to register under this chapter
changes:
(1) principal residence address; or
(2) if section 7(a)(2) or 7(a)(3) of this chapter applies, the place
where the sex or violent offender stays in Indiana;
the sex or violent offender shall report in person to the local law
enforcement authority having jurisdiction over the sex or violent offender’s
current principal address or location and, if the offender moves to a new
county in Indiana, to the local law enforcement authority having
jurisdiction over the sex or violent offender’s new principal address or
location not more than seventy-two (72) hours after the address change.
I.C. § 11-8-8-11(a).
When Montgomery failed to register as required, he was charged under
Indiana Code section 11-8-8-17(a), which states:
(a) A sex or violent offender who knowingly or intentionally:
(1) fails to register when required to register under this chapter;
(2) fails to register in every location where the sex or violent
offender is required to register under this chapter;
(3) makes a material misstatement or omission while registering as a
sex or violent offender under this chapter;
(4) fails to register in person as required under this chapter; or
(5) does not reside at the sex or violent offender’s registered address
or location;
commits a Class D felony.
3
Indiana Code section 11-8-8-11 was amended in 2013, but the statutory language under analysis in this
case was not affected.
5
Montgomery was charged under section 11-8-8-17(a) in Pike County and in Vanderburgh
County.
As noted above, Montgomery argues that there is a single duty for a sex offender
to register with the appropriate law enforcement officials when moving and asserts that
he can be guilty of only one offense.
However, Montgomery’s interpretation does not comport with our reading of
Indiana Code section 11-8-8-17(a). There are two duties here, one for a sex offender to
reside at his registered address in Pike County and one to register as a sex offender in
Vanderburgh County. Montgomery is guilty of two divisible offenses. Therefore, he
could fulfill or omit one duty without fulfilling or omitting the other. As such, we cannot
find that Montgomery was charged twice with the same offense for the same act. Rather,
we conclude that he was properly charged twice for two separate offenses.
Montgomery also argues that the prosecution in Vanderburgh County was barred
by a previous prosecution pursuant to Indiana Code section 35-34-1-4(a)(7). Indiana
Code section 35-34-1-4(a)(7) allows the trial court to dismiss an indictment or
information if “the prosecution is barred by reason of a previous prosecution.” However,
as noted above, Montgomery was properly prosecuted for two separate offenses.
Therefore, prosecution in Vanderburgh County was not barred.
Finally, Montgomery argues that a subsequent prosecution in Vanderburgh County
would violate double jeopardy principles.
6
Article I, section 14 of the Indiana Constitution provides that “[n]o person shall be
put in jeopardy twice for the same offense.” Two or more offenses are the same offense
if, with respect to either the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged offense also establish
the essential elements of another challenged offense. Richardson, 717 N.E.2d at 49. The
first aspect of this analysis is the statutory elements test, which identifies and compares
the essential statutory elements of the challenged crimes to determine if each offense
contains at least one element that is separate and distinct from the other. Id. at 50.
Under the actual evidence test, the defendant must show a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a second
challenged offense. Id. at 53. However, Indiana’s Double Jeopardy Clause “is not
violated when the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a second
offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
First, we conclude that Montgomery’s charge in Vanderburgh County does not
violate double jeopardy principles under the statutory elements test. Montgomery was
charged with two separate violations of Indiana Code section 11-8-8-17(a). In order to
prove the violation in Pike County, the State had to show that Montgomery 1) was a
registered sex or violent offender, 2) who knowingly or intentionally, 3) did not reside at
the sex or violent offender’s registered address or location. I.C. § 11-8-8-17(a)(5);
7
Appellant’s App. p. 33. On the other hand, in order to prove the violation in
Vanderburgh County, the State was required to prove that Montgomery 1) was a
registered sex or violent offender, 2) who knowingly or intentionally, 3) failed to register
when required. I.C. § 11-8-8-17(a)(1); Appellant’s App. p. 16. Under these
circumstances, we cannot say Montgomery’s charge in Vanderburgh County violated the
statutory elements test.
As regards the actual evidence test, as noted above, Montgomery was charged
with two counts of failing to register under Indiana Code section 11-8-8-17(a). However,
different evidence would be required to prove each charge because the charges were the
result of two divisible omissions. More particularly, in Pike County the prosecution
would have been required to prove that Montgomery did not live at his registered
address, and in Vanderburgh County the prosecution would be required to prove that
Montgomery did not register in Vanderburgh County. In light of these circumstances, we
cannot say that there was a double jeopardy violation.
We remand this case to the trial court for trial.
BARNES, J., and CRONE, J., concur.
8