William R. Dixon v. Indiana Department of Correction , 2016 Ind. App. LEXIS 194 ( 2016 )

FILED
Jun 16 2016, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
William R. Dixon Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William R. Dixon, June 16, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A04-1505-PL-484
v. Appeal from the Marion Superior
Court
Indiana Department of The Honorable Cynthia J. Ayers,
Correction, Judge
Appellee-Defendant.
The Honorable Anne M.
Flannelly, Magistrate
Trial Court Cause No.
49D04-1209-PL-35754
Brown, Judge.
Court of Appeals of Indiana | Opinion 49A04-1505-PL-484 | June 16, 2016 Page 1 of 11
[1] William R. Dixon appeals the trial court’s grant of summary judgment in favor of
the Indiana Department of Correction (“DOC”). He raises four issues which we
consolidate and restate as whether the trial court properly granted summary
judgment to the DOC. We affirm.
Facts and Procedural History
[2] The facts underlying Dixon’s convictions stem from an August 8, 2003 incident in
Starke County and are as follows:
Dixon robbed a grocery store in one Indiana county and then
fled to an adjacent county where he entered the victims’ home to
hide from the police. He then ordered the victim/mother to
drive her car while Dixon, armed with a gun, rode in the trunk
with the victim/son. Once the car was safely through the police
roadblock, the victim/mother stopped the vehicle, and Dixon
and the victim/son emerged from the trunk. Dixon left in the
vehicle, and the victims walked until they found help. Dixon
was eventually captured and pleaded guilty to two counts of
kidnapping, one count of robbery, and one count of resisting law
enforcement.
Dixon v. State, 825 N.E.2d 1269, 1270-1271 (Ind. Ct. App. 2005), trans. denied.
The “victim/son” referenced in this Court’s previous opinion was under twelve
years old at the time. Id. at 1272. In 2004, Dixon pled guilty and was convicted
of two counts of kidnapping as class A felonies, one count of robbery as a class
B felony, and one count of resisting law enforcement as a class D felony. He is
currently incarcerated at the Indiana State Prison where he is serving a sentence
of seventy-six and one-half years for his convictions.
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[3] Dixon was convicted of kidnapping under Ind. Code § 35-42-3-2 (Supp. 2003)
where the victim was under eighteen years old, and conviction for that offense 1
made him eligible for inclusion, pursuant to the Indiana Sex Offender Registry Act
(the “Act”) on the Indiana Sex Offender Registry, upon his release from
incarceration. His earliest possible release date is November 5, 2041. Pursuant to
the Act, Dixon was classified as a sex offender on the DOC’s internal classification
system. Individuals classified as sex offenders participate in treatment through the
Sex Offender Management and Monitoring Program (“SOMM”) three years prior
to release from incarceration.2
[4] In 2008, Dixon filed an appeal of his classification, which was denied, and he
remains classified as a sex offender on the DOC’s internal classification system. In
December 2011, Dixon requested a “packet review” of his offender information
packet, and Dan Bodlovich, head of classification, wrote in response that
kidnapping a minor “is a registerable sex offense” under the Act and also that the
1
At the time of Dixon’s offense, Ind. Code § 5-2-12-4(a)(11) (Supp. 2003) provided, in part, that “[a]s used in
this chapter, ‘offender’ means a person convicted of any of the following sex and violent offenses: . . . (11)
Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age.” Indiana Code § 5-2-12-4 was
subsequently amended by Pub. L. No. 51-2005, § 1 and was repealed by Pub. L. No 140-2006, § 41, and Pub.
L. No. 173-2006, § 55). The relevant provision is now found at Ind. Code § 11-8-8-4.5 and was added by
Pub. L. No. 216-2007, § 12 and has been subsequently amended by Pub. L. No. 1-2012, § 2 (eff. Jan. 30,
2012); Pub. L. No. 72-2012, § 1; Pub. L. No. 13-2013, § 41 (eff. April 1, 2013); Pub. L. No. 214-2013, § 4 (eff.
July 1, 2013); Pub. L. No. 158-2013, § 171 (eff. July 1, 2014); Pub. L. No. 168-2014, § 20 (eff. July 1, 2014)
and Pub. L. No. 185-2014, § 2 (eff. July 1, 2014).
2
See Bleeke v. Lemmon, 6 N.E.3d 907, 923 (Ind. 2014) (discussing details of Indiana’s SOMM program, which
has been in existence since 1999).
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Act’s registerable violent offenses are murder and voluntary manslaughter. 3
Appellant’s Appendix at 86-87.
[5] On September 12, 2012, Dixon, pro se, filed a verified complaint for injunctive and
declaratory relief against the DOC in the Marion Superior Court. The complaint
requested that the trial court declare the DOC’s classification of him as a sex
offender in violation of the Federal and State ex post facto clauses and a violation of
his right to due process under the Federal and State Constitutions, as well as a
permanent injunction requiring the DOC to remove him from “the operation of the
Policy” labeling him a sex offender. Id. at 149. On December 13, 2012, the DOC
filed a motion to dismiss along with a memorandum of law. The court denied the
DOC’s motion to dismiss on June 18, 2013, and on August 7, 2013, the DOC filed
an answer to Dixon’s complaint.4 On May 16, 2014, Dixon filed a motion for
default judgment, which the court denied on August 26, 2014. The court
scheduled a pre-trial conference for October 21, 2014 and a bench trial for October
28, 2014. An entry in the trial court’s chronological case summary (“CCS”) on
October 22, 2014, shows that the bench trial previously scheduled for October 28,
2014, was cancelled by reason of “[j]udicial [a]ction.” 5 Id. at 44. Another entry in
3
Attempted murder and attempted voluntary manslaughter are also violent offenses for purposes of the Act.
See Ind. Code § 11-8-8-5(a)(21) (Supp. 2012); see also Gibson v. Ind. Dep’t of Correction, 899 N.E.2d 40, 44 (Ind.
Ct. App. 2008), trans. denied.
4
The DOC’s answer is not in the record.
5
The record does not explain the meaning of the phrase, “judicial action.” Appellant’s Appendix at 44.
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the CCS, dated October 23, 2014, states: “Jacket Entry: Defendant to file motion
for summary judgment. Bench trial vacated.” Id.[6] On December 18, 2014, the DOC filed a motion for summary judgment,
designation of evidence, and a memorandum of law. On January 15, 2015, Dixon
filed his response to the DOC’s motion and a designation of evidence. Following a
hearing on April 29, 2015, at which Dixon appeared telephonically and the DOC
appeared by counsel, the court granted the DOC’s motion for summary judgment
that same date. The order provides in part:
The Court FINDS that the Plaintiff was convicted May 11, 2004
in Starke County, Indiana, in cause 75C01-0308-FA008 of
Kidnapping, a Class A Felony; Kidnapping (of a Minor), a Class
A Felony; Robbery, a Class B Felony; and Resisting Law
Enforcement, a Class D Felony. Plaintiff’s total sentence was 76
½ (seventy six and one-half) years in the Indiana Department of
Correction, with an earliest projected release date of November
5, 2041. The Department of Correction classified the Plaintiff as
a sex offender under the Indiana sex offender statute because he
kidnapped a child. Under current law, the Plaintiff would be
required to attend the Indiana Sex Offender Management and
Monitoring Program (“SOMM”) three years before his release
date; that is, the Plaintiff would not have to participate in the
program until approximately 2037. The Plaintiff’s claims are not
ripe for adjudication, because his participation in the SOMM
program and requirement to register as a sex offender will not
occur for at least another 26 years. I.C. 11-8-8-4.5 is not an ex-
post facto law as applied to the Plaintiff. When the Plaintiff
committed Kidnapping (of a minor) in 2003, Indiana Code 5-2-4-
2-4 listed a person who kidnapped a victim less than eighteen
(18) years of age as one definition of an offender under the sex
offender statute. The Indiana Department of Correction is not
applying any law that was not in place when the Plaintiff
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committed his crime. The Plaintiff’s challenge to participate in
the SOMM program is not ripe for adjudication. The Plaintiff’s
challenge to any obligation he may have to register as a sex
offender is also not ripe for adjudication.
The Court FINDS that there is no genuine issue of material fact
pursuant to Indiana Rule of Trial Procedure 56 and the
Defendant is entitled to judgment in its favor as matter of law on
the issues raised in the Defendant’s Motion for Summary
Judgment.
Appellant’s Appendix at 53-54.
Discussion
[7] The issue is whether the trial court erred in granting the DOC’s motion for
summary judgment.6 We note that Dixon is proceeding pro se, and that such
litigants are held to the same standard as trained counsel. Evans v. State, 809
N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. To the extent he fails to
develop a cogent argument or cite to the record, we conclude such arguments are
waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002)
6
Dixon also asserts that the trial court violated his due process right to be heard when it cancelled a
previously scheduled bench trial to hear the DOC’s motion for summary judgment. Indiana Trial Rule 56(B)
provides that a defending party “may, at any time, move with or without supporting affidavits for a summary
judgment in his favor as to all or any part thereof.” Due process generally includes the right to be heard, see
Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008), and Dixon had the opportunity to be heard at the
summary judgment hearing, where, in addition to his response to the DOC’s motion for summary judgment
and designation of evidence, he also presented argument in support of his position at the hearing. We cannot
say that the cancellation of the bench trial to hold a hearing on the DOC’s motion for summary judgment
resulted in any due process violation.
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(holding argument waived for failure to cite authority or provide cogent argument),
reh’g denied, trans. denied.
[8] We review an order for summary judgment de novo, applying the same standard as
the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving
party bears the initial burden of making a prima facie showing that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law.
Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary judgment is improper
if the moving party fails to carry its burden, but if it succeeds, then the nonmoving
party must come forward with evidence establishing the existence of a genuine
issue of material fact. Id. We construe all factual inferences in favor of the
nonmoving party and resolve all doubts as to the existence of a material issue
against the moving party. Id.[9] Dixon argues that his classification as a sex offender is ex post facto punishment
which he states alters his “punishment phase, restrictions, and registration
requirements, which includes length of time, SOMM program, where one could
live and work” and that he will experience “a new social stigma which will weight
[sic] heavier on Dixon’s mental anguish than it would as being seen by society or
his peers as an ex-violent offender, rather than being seen as SO/ZSO.”
Appellant’s Brief at 9. He asserts that his claim is ripe for review in that he is
“being harmed presently by mental anguish, defamation of character, and a
possible physical harm within a prison setting.” Id. at 16.
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[10] The State maintains that Dixon’s classification as a sex offender does not violate
the ex post facto clause because “no law is being applied retroactively to classify him
as a sex offender.” Appellee’s Brief at 26. It further argues that Dixon’s challenge
to any obligation he may have to participate in the SOMM program and to register
as a sex offender upon his release from incarceration is not ripe for review.
[11] 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 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), cert. denied, 549 U.S. 996,
127 S. Ct. 513 (2006)), reh’g denied.
[12] In this case, the version of the Act in effect at the time Dixon filed his complaint
leaves him in the same position he was in when he committed the offense of
kidnapping a minor. At the time of the complaint, Ind. Code § 11-8-8-4.5(a)(11)
(Supp. 2012)7 provided, in part, that
7
The excerpted language from this subsection that was in effect at the time of the April 29, 2015 summary
judgment hearing contains identical language.
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Except as provided in section 22 of this chapter, as used in this
chapter, ‘sex offender’ means a person convicted of any of the
following offenses:
*****
(11) Kidnapping (IC 35-42-3-2), if the victim is less than
eighteen (18) years of age, and the person who kidnapped
the victim is not the victim’s parent or guardian.
The designated evidence shows that when Dixon committed the offense his
crime was among those included as making him eligible to register on the sex
offender registry upon his release from incarceration. See Ind. Code § 5-2-12-
4(a)(11) (Supp. 2003) (defining an “offender” as “a person convicted of any one
of the following sex and violent offenses” and including, among other offenses,
“[k]idnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of
age”); Ind. Code § 5-2-12-5(i) (Supp. 2003) (providing that offenders shall
register with a sheriff or the police of a consolidated city and that “[t]he sheriff
with whom an offender registers under this section shall make and publish a
photograph of an offender on the Indiana sheriffs’ sex offender registry web site
established under IC 36-2-13-5.5) (emphasis added).8 Thus, the relevant statutes
8
Indiana Code § 5-2-12-5 was subsequently amended by Pub. L. No. 64-2005, § 3 and repealed by Pub. L.
No 140-2006, § 41, and Pub. L. No. 173-2006, § 55. The relevant provision is now found at Ind. Code § 11-8-
8-7 and was added by Pub. L. No. 140-2006, § 13, and Pub. L. No. 173-2006, § 13, and has been amended by
Pub. L. No. 2-2007, § 151; Pub. L. No. 216-2007, § 15; Pub. L. No. 119-2008, § 5; Pub. L. No. 114-2012, §
24; and Pub. L. No. 214-2013, § 6, (eff. July 1, 2013).
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in effect at the time of Dixon’s offense provided notice of the consequences of a
conviction for kidnapping when the victim is less than eighteen years old. We
conclude that Dixon is not being punished for conduct that was not punishable at
the time it was committed nor is he being subjected to additional punishment to
that prescribed at the time of the offense. His classification as a sex offender due to
his conviction of kidnapping a minor does not violate the ex post facto clause of the
Indiana Constitution.9
[13] With respect to Dixon’s challenges to his participation in the SOMM program
three years prior to his scheduled release from incarceration and to register as a sex
offender when he is released, we cannot say that those claims are ripe for review.
Ripeness “relates to the degree to which the defined issues in a case are based on
actual facts rather than on abstract possibilities, and are capable of being
adjudicated on an adequately developed record.” Ind. Dep’t of Envtl. Mgmt. v. Chem.
Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The designated evidence
shows that Dixon has been classified as a sex offender in the internal classification
system of the DOC, and there is no indication in the record that he has been court-
ordered to register as a sex offender or that he has been notified by any correctional
authority or registry coordinator that he will be required to do so. Dixon would
not begin participating in the SOMM program until approximately 2037, and his
9
To the extent Dixon argues his classification as a sex offender is a violation of the Federal ex post facto clause
and having determined, as discussed above, that Dixon’s classification as a sex offender does not implicate
the concerns of the ex post facto clause under the Indiana Constitution, we cannot say that he has
demonstrated a violation under the Federal ex post facto clause.
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earliest possible release date is November 5, 2041, which is over twenty-five years
in the future. See Gardner v. State, 923 N.E.2d 959, 959-960 (Ind. Ct. App. 2009)
(explaining that an inmate’s registration on the sex offender registry was
determined to be “a matter of speculation as to what registration requirements, if
any, will impact [defendant] upon his release, a minimum of five years in the
future. Because there is no immediate dispute over whether [defendant] must
register as a violent offender upon his release, there is no issue before us ripe for
appellate review”), trans. denied.
[14] As for Dixon’s assertion that he currently suffers loss of privileges and programs
available to others and a stigma causing him mental anguish, even if we were to
determine such claims are ripe they are based on his alleged erroneous
classification, and we have already determined that he has not been erroneously
classified. Therefore, such claims fail.
[15] Based upon the designated evidence, the trial court did not err in granting
summary judgment in favor of the DOC.
Conclusion
[16] For the foregoing reasons, we affirm the trial court’s grant of summary judgment in
favor of the DOC.
[17] Affirmed.
Baker, J., and May, J., concur.
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