Stephen W. Peele v. State of Indiana ( 2020 )


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  •                                                                              FILED
    Jan 24 2020, 8:32 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Lisa M. Johnson                                            Curtis T. Hill, Jr.
    Brownsburg, Indiana                                        Attorney General of Indiana
    Jesse R. Drum
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Stephen W. Peele,                                        January 24, 2020
    Appellant-Defendant,                                     Court of Appeals Case No.
    19A-CR-1775
    v.                                                 Appeal from the Marion Superior
    Court
    State of Indiana,                                          The Honorable James K. Snyder,
    Appellee-Plaintiff.                                        Master Commissioner
    Trial Court Cause No.
    49G02-0205-PC-123251
    Tavitas, Judge.
    Case Summary
    [1]   Stephan Peele appeals the dismissal of his verified petition for removal from the
    Indiana Sex Offender Registry (the “Registry”). We reverse and remand.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                     Page 1 of 13
    Issue
    [2]   Peele raises two issues on appeal. We find one to be dispositive: whether the
    trial court abused its discretion when it dismissed Peele’s verified petition for
    removal from the sex offender registry for lack of subject matter jurisdiction. 1
    Facts 2
    [3]   On a date that is unclear from the record, Peele was convicted in Shelby
    County for two counts of child molesting, as Class B felonies, and three counts
    of child molesting, as Class C felonies; he was subsequently sentenced on April
    17, 1989, to an aggregate twelve-year term in the Department of Correction
    (“DOC”). 3 On March 20, 2003, Peele pleaded guilty in Marion County to
    sexual misconduct with a minor, a Class C felony; he was sentenced to eight
    years in the DOC, with five years executed and three years suspended to
    probation.
    [4]   It is unclear from the record precisely when Peele was notified that he was
    required to register as a sex offender for a ten-year period. Peele’s name was
    reportedly added to the Registry on June 10, 2005. In 2007, according to Peele,
    1
    We do not reach Peele’s claim that the registration requirement, as applied to him, violates Indiana’s
    prohibition against ex post facto laws.
    2
    The State’s brief does not contain a Statement of Facts. Appellate Rule 46(B) permits the omission of a
    Statement of Facts from an appellee’s brief “if the appellee agrees with statements in the appellant’s brief”
    and so states. Key facts are missing from the record on appeal, including the date of Peele’s conviction in
    Shelby County. A conforming Statement of Facts from the State, or an affirmative statement that the State
    adopts Peele’s Statement of Facts, would have aided our review.
    3
    Peele’s date of conviction for the Shelby County offense is unknown.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                               Page 2 of 13
    Peele was notified in a letter from the DOC, dated July 23, 2007, that he was
    considered a “sex and violent offender” and required to register for the
    remainder of his life. Appellant’s App. Vol. II p. 38.
    [5]   On February 7, 2019, Peele filed, pursuant to Indiana Code Section 11-8-8-
    22(c), a verified petition for removal from the Registry in the Marion Superior
    Court under the cause number associated with his Marion County conviction.
    At the time, Peele resided in Marion County. Peele alleged that the registration
    requirement, as applied to him, violated Indiana’s prohibition on ex post facto
    laws. On April 22, 2019, the DOC, by senior deputy attorney general counsel,
    entered an appearance. The following day, the DOC filed a motion to dismiss
    Peele’s petition for lack of jurisdiction. After a hearing on May 10, 2019, the
    trial court dismissed Peele’s petition for lack of jurisdiction; its order provided:
    1. One may not file a civil complaint in a criminal case. “All
    prosecutions of crimes shall be brought in the name of the state of
    Indiana,”’ Ind. Code § 35-34-1- 1(a), and a declaratory judgment
    may not be granted against the State. State v. LaRue’s, Inc., 
    239 Ind. 56
    , 64-65, 
    154 N.E.2d 708
    , 712 (1958); Harp v. Indiana
    Department Highways, 
    585 N.E.2d 652
    , 660-61 (Ind. Ct. App.
    1992). See also, e.g. Ind. Crim. Rule 2.1 (governing appearance
    for the state and for the defendant but with nothing about
    appearance for other persons in the criminal case).
    2. Relief is sought against the Indiana Department of Correction
    but the DOC is not a party in this criminal case and is not
    represented by the prosecutor. See Ind. Dept. of Corr. v. Haley, 
    928 N.E.2d 840
    (Ind. Ct. App. 2010) (prosecutor does not represent
    the DOC regarding educational credit, even in the criminal case).
    Accord Payne v. State, 
    531 N.E.2d 216
    (Ind. Ct. App. 1989)
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020        Page 3 of 13
    (prosecutor may not waive State Police prerogative to object to
    expungement). The prosecutor may not bind the DOC as to the
    registration requirement. Stockert v. State, 
    44 N.E.3d 78
    (Ind.
    App. 2015), trans. denied; Nichols v. State, 
    947 N.E.2d 1011
    (Ind.
    App. 2011), reh. denied.
    *****
    8. This court lacks jurisdiction in this case to address the
    collateral consequence of whether the defendant is still required
    to register as a sex or violent offender. Kirby v. State, 
    95 N.E.3d 518
    , 520-21 (Ind. 2018). It is therefore ORDERED,
    ADJUDGED and DECREED by the court that the verified
    petition for removal from sex offender registry is denied,
    dismissed and stricken.[ 4]
    Appellant’s App. Vol. II pp. 64-65. Peele filed a motion to correct error on
    June 3, 2019, which was denied. Peele now appeals from the denial of his
    petition for removal from the Registry.
    Analysis
    [6]   Peele argues that the trial court erred when it dismissed his verified petition for
    removal from the sex offender registry. The State appears to concede that the
    trial court, in fact, had subject matter jurisdiction to consider Peele’s petition;
    however, the State maintains that Peele did not bring the proper form of action
    4
    We presume that the trial court’s notation that Peele’s verified petition is “denied, dismissed and stricken”
    is a scrivener’s error. We will approach this matter as Peele’s appeal from the trial court’s dismissal of his
    verified petition.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                                Page 4 of 13
    under a proper cause. See State’s Br. p. 7. (“‘One may not file a civil complaint
    in a criminal case[.]’ It is true that the court technically had subject matter jurisdiction
    to consider Peele’s petition. . . . . But it is also true that Peele’s was a civil
    complaint ‘that challenges a collateral consequence rather than his conviction
    or sentence.’”).
    [7]   The DOC filed a motion to dismiss Peele’s petition for lack of jurisdiction,
    wherein the DOC relied on cases that analyzed issues pertaining to subject
    matter jurisdiction. The trial court granted the DOC’s motion. A motion to
    dismiss for lack of subject matter jurisdiction “presents a threshold question
    concerning the court’s power to act.” Greer v. Buss, 
    918 N.E.2d 607
    , 613 (Ind.
    Ct. App. 2009). The trial court decides whether the requisite jurisdictional facts
    exist based on its consideration of the complaint, the motion to dismiss, and
    any affidavits or other evidence submitted. 
    Id. Where the
    facts are not in
    dispute, we review the trial court’s decision de novo. 
    Id. [8] “Attorneys
    and judges alike frequently characterize a claim of procedural error
    as one of jurisdictional dimension.” K.S. v. State, 
    849 N.E.2d 538
    , 541 (Ind.
    2006). “The fact that a trial court may have erred along the course of
    adjudicating a dispute does not mean it lacked jurisdiction.” 
    Id. “The question
    of subject matter jurisdiction entails a determination of whether a court has
    jurisdiction over the general class of actions to which a particular case belongs.”
    
    Id. at 542.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020                 Page 5 of 13
    [9]   Indiana Code Section 11-8-8-22, which governs petitions to remove sex
    offender designation and petitions to register under less restrictive conditions,
    provides, in pertinent part, as follows:
    (c) A person to whom this section applies may petition a court to:
    (1) remove the person’s designation as an offender and
    order the department to remove all information regarding
    the person from the public portal of the sex and violent
    offender registry Internet web site established under IC 36-
    2-13-5.5; or
    (2) require the person to register under less restrictive
    conditions.
    (d) A petition under this section shall be filed in the circuit or
    superior court of the county in which the offender resides. . . . .
    (e) After receiving a petition under this section, the court may:
    (1) summarily dismiss the petition; or
    (2) give notice to:
    (A) the [D]epartment [of Correction];
    (B) the attorney general;
    (C) the prosecuting attorney of:
    (i) the county where the petition was filed;
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 6 of 13
    (ii) the county where offender was most
    recently convicted of an offense listed in
    section 5 of this chapter; and
    (iii) the county where the offender resides;
    and
    (D) the sheriff of the county where the offender
    resides;
    and set the matter for hearing. The date set for a hearing must
    not be less than sixty (60) days after the court gives notice under
    this subsection.
    (f) If a court sets a matter for a hearing under this section, the
    prosecuting attorney of the county in which the action is pending
    shall appear and respond, unless the prosecuting attorney
    requests the attorney general to appear and respond and the
    attorney general agrees to represent the interests of the state in
    the matter. If the attorney general agrees to appear, the attorney
    general shall give notice to:
    (1) the prosecuting attorney; and
    (2) the court.
    (g) A court may grant a petition under this section 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.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 7 of 13
    (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.
    The court has the discretion to deny a petition under this section, even
    if the court makes the findings under this subsection.
    (h) The petitioner has the burden of proof in a hearing under this
    section.
    (i) If the court grants a petition under this section, the court shall
    notify:
    (1) the victim of the offense, if applicable;
    (2) the department of correction; and
    (3) the local law enforcement authority of every county in
    which the petitioner is currently required to register.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 8 of 13
    (j) An offender may base a petition filed under this section on a
    claim that the application or registration requirements constitute
    ex post facto punishment.
    (k) A petition filed under this section must:
    (1) be submitted under the penalties of perjury;
    (2) list each of the offender’s criminal convictions and state
    for each conviction:
    (A) the date of the judgment of conviction;
    (B) the court that entered the judgment of
    conviction;
    (C) the crime that the offender pled guilty to or was
    convicted of; and
    (D) whether the offender was convicted of the crime
    in a trial or pled guilty to the criminal charges; and
    (3) list each jurisdiction in which the offender is required
    to register as a sex offender or a violent offender.
    (l) The attorney general may initiate an appeal from any order
    granting an offender relief under this section.
    Ind. Code § 11-8-8-22 (emphasis added).
    [10]   The plain language of Indiana Code Section 11-8-8-22(d) clearly confers subject
    matter jurisdiction upon the circuit or superior court in the county in which the
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020              Page 9 of 13
    offender resides to accept filing of, set a hearing on, and consider, grant, or
    deny an offender’s petition for removal from the Registry. See Clampitt v. State,
    
    932 N.E.2d 1256
    , 1258 (Ind. Ct. App. 2010) (reversing the trial court’s dismissal
    of Clampitt’s motion, pursuant to Indiana Code Section 11-8-8-22, to remove
    sexual violent predator status and ordering the trial court to consider the merits
    of the motion). A reading otherwise disregards unambiguous statutory
    language, which we will not do. The State does not suggest, and the record
    does not support a finding, that Peele filed his petition in the wrong court.
    [11]   Although the trial court had subject matter jurisdiction, the State argues: “The
    procedure set out in Indiana Code Section 11-8-8-22 (which is not even in Title
    35, the criminal title of the Indiana Code) says that a petition must be filed in
    the county in which the offender resides but does not specify that it be filed in
    the criminal case that gave rise to the registration obligation being challenged”;
    and “. . .[t]he obligation is to file a new declaratory judgment case and to get a
    new cause number.” See Appellant’s App. Vol. II pp. 58, 60. Thus, we turn to
    the question of the proper form that the filing of a petition for removal from the
    Registry must take. The trial court relied on Kirby to support its dismissal of
    Peele’s petition. See 
    id. at 65.
    [12]   In Kirby v. State, 
    95 N.E.2d 518
    , 520-21 (Ind. 2018), our Supreme Court found
    that Kirby improperly challenged a statutory restriction on Kirby’s entry onto
    school grounds—a collateral consequence of Kirby’s conviction—under post-
    conviction rules, which govern challenges to a conviction or to a sentence. The
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020      Page 10 of 13
    Kirby Court engaged in the following instructive discussion as to the appropriate
    vehicle for challenging the collateral consequences of an offender’s conviction:
    While Kirby cannot raise his ex post facto claim in post-
    conviction proceedings, he may have a vehicle for his claim. The
    legislature created declaratory-judgment actions for the explicit
    purpose “to settle and to afford relief from uncertainty and
    insecurity with respect to rights, status and other legal relations.”
    Ind. Code § 34-14-1-12 (2017). Settling his uncertain legal status in
    light of the statutory school-entry restriction is precisely what
    Kirby wants to do. And the declaratory-judgment statutes are
    “liberally construed and administered” to achieve that purpose.
    Declaratory-judgment actions are also broadly available. “Any
    person . . . whose rights, status, or other legal relations are
    affected by a statute” can bring such an action. I.C. § 34-14-1-2.
    That action will determine “any question” of a statute’s validity
    and give “a declaration of rights, status, or other legal relations
    thereunder.” Again, this is exactly what Kirby asks for: a
    determination of whether the school-entry restriction is an invalid
    ex post facto law as applied to him.
    Indeed, Indiana caselaw shows that ex post facto claims like
    Kirby’s are often raised through declaratory-judgment actions.
    E.g., Lemmon v. Harris, 
    949 N.E.2d 803
    , 805 (Ind. 2011); Gardner
    v. State, 
    923 N.E.2d 959
    , 959 (Ind. Ct. App. 2009), trans. denied.
    And our Court of Appeals has held that declaratory-judgment
    actions are appropriate vehicles for ex post facto claims even
    when other statutory remedies are available, given the burdens
    imposed by sex-offender registration requirements. Greer v. Buss,
    
    918 N.E.2d 607
    , 615 (Ind. Ct. App. 2009).
    Kirby, 
    95 N.E.2d 518
    , 520-21 (Ind. 2018) (citations omitted) (emphasis added).
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020       Page 11 of 13
    [13]   Although Indiana Code Section 11-8-8-22 is silent as to whether a declaratory
    judgment filing must be brought in a separate, civil cause or within a criminal
    cause under a qualifying court, Kirby—which our Supreme Court handed down
    in April 2018—supports a finding that an offender may pursue relief in each of
    these ways. In support of the premise that “Indiana caselaw shows that ex post
    facto claims [ ] are often raised through declaratory judgment actions[,]” our
    Supreme Court cited Lemmon, Gardner, and Greer.
    [14]   Lemmon and Greer were declaratory judgment actions brought by offenders
    against commissioners of the DOC in civil actions. In these cases, sex offender-
    appellants sought to challenge collateral consequences of their convictions and
    prevailed on appeal as to, inter alia, their claims that the trial court erred in
    dismissing their civil, declaratory judgment action on jurisdictional grounds.
    [15]   The Kirby Court also, however, signaled the availability of declaratory relief
    under a criminal cause when it cited Gardner. The offender in Gardner
    challenged the “prospective application of the amended registration
    requirements of Indiana Code Section 11-8-8-7” under a criminal cause;
    however, because Gardner challenged the registration requirements as an ex
    post facto law before he was actually ordered to register, the trial court denied
    relief. We affirmed the trial court’s denial of Gardner’s petition as unripe.
    [16]   In the same vein, in Clampitt, a panel of this Court reversed the trial court’s
    finding that the trial court lacked jurisdiction “in [Clampitt’s] criminal case to
    grant his motion” to remove sexual violent predator status. See Clampitt, 932
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020         Page 12 
    of 13 N.E.2d at 1258
    . In reversing the trial court’s judgment, we ordered the trial
    court to consider, on remand, the merits of Clampitt’s motion to remove sexual
    violent predator status, as brought under a criminal cause, pursuant to Indiana
    Code Section 11-8-8-22(e).
    [17]   Based on the foregoing, we find that: (1) no legal impediment exists to the trial
    court’s legal authority to consider the merits of Peele’s petition for relief under
    Indiana Code Section 11-8-8-22; and (2) Peele properly brought his petition for
    removal from the Registry within a criminal cause in a qualifying court. The
    trial court erred in dismissing Peele’s petition.
    Conclusion
    [18]   The trial court erred in dismissing Peele’s petition for removal from the
    Registry; accordingly, we reverse and remand with instructions to the trial court
    to consider the merits of Peele’s petition.
    [19]   Reversed and remanded.
    Najam, J., and Vaidik, J., concur.
    Court of Appeals of Indiana | Opinion 19A-CR-1775 | January 24, 2020      Page 13 of 13