Joshua L. Waller v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 03 2020, 8:53 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua L. Waller, April 3, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2615
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Mary Wertz, Judge
Appellee-Plaintiff. Trial Court Cause No.
07C01-1611-F4-477
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 1 of 5
Case Summary
[1] On April 20, 2019, Joshua Waller pled guilty to Level 5 felony attempted child
solicitation and Level 6 felony dissemination of matter harmful to minors. At
sentencing, the trial court accepted Waller’s guilty plea and sentenced him in
accordance with its terms. The trial court also found that given Waller’s prior
unrelated conviction for Level 4 child molesting, Waller was a sexually violent
predator (“SVP”). Waller challenges the SVP classification on appeal. We
reverse and remand for further proceedings consistent with this decision.
Facts and Procedural History
[2] On May 1, 2016, Waller engaged in a social-media communication with
eleven-year-old K.H. During this communication, Waller, believing that K.H.
was a child under the age of eighteen, sent K.H. a picture of his penis. On May
13, 2016, Waller communicated online with a person who he believed to be a
thirteen-year-old girl. During this communication, Waller expressed that he
“wanted to engage in sexual intercourse” with the girl. Tr. p. 19. Although the
person with whom he was communicating turned out to be an adult police
officer, Waller believed that he was asking a thirteen-year-old girl to engage in
sexual intercourse.
[3] On November 2, 2016, the State charged Waller with Level 5 felony attempted
child solicitation, Level 6 felony dissemination of matter harmful to minors,
and two counts of Class A misdemeanor inappropriate communication with a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 2 of 5
child. While awaiting trial in the instant case, on May 15, 2017, Waller was
convicted of Level 4 felony child molesting in Henry County (“the Henry
County conviction”). In that case, Waller was sentenced to a term of ten years
with two years suspended to probation. He was also ordered to register with
the State’s sex offender registry for a period of ten years upon his release from
incarceration.
[4] In April of 2019, Waller entered into a plea agreement under the terms of which
he agreed to plead guilty to the Level 5 felony attempted child solicitation and
Level 6 felony dissemination of matter harmful to minors. In exchange, the
State agreed to dismiss the remaining charges, that the sentences for the
convictions should run concurrently, and that the executed portion of his
sentence should be capped at three years. On October 16, 2019, the trial court
accepted Waller’s guilty plea and sentenced him to an aggregate three-year
term. Noting the Henry County conviction, the trial court also found that
Waller was an SVP.
Discussion and Decision
[5] Waller contends that the trial court erred in finding him to be an SVP. In
challenging his classification as an SVP, Waller claims that “[a]t the time of the
commission of the offenses in this case, he did not have a previous unrelated
conviction for a sex offense for which he was required to register as a sex or
violent offender.” Appellant’s Br. p. 6. Specifically, he argues that although he
had committed the acts leading to the Henry County conviction prior to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 3 of 5
committing the underlying offenses, he had not yet been convicted of child
molesting in Henry County when he committed the underlying offenses.
Waller therefore claims that the trial court erred by finding him to be an SVP.
[6] Indiana Code section 35-38-1-7.5(b)(2) provides: “(b) A person who … (2)
commits a sex offense (as defined in IC 11-8-8-5.2) while having a previous
unrelated conviction for a sex offense for which the person is required to register
as a sex or violent offender under IC 11-8-8 … is a sexually violent predator.”
(Emphasis added). The statutory sequence included in this statute is that an
individual commits a sex offense while having a previous unrelated conviction
for a sex offense. Thus, a plain reading of the statute indicates that proper
sequencing requires that the individual must have been convicted of the
unrelated sex offense prior to committing the acts at issue in the instant case.
[7] This reading is consistent with the Indiana Supreme Court’s prior decision
regarding proper sequencing in habitual-offender determinations. In Flint v.
State, 750 N.E.2d 340, 341 (Ind. 2001), the Indiana Supreme Court provided
that failure to prove the proper sequencing requires that the habitual offender
determination be vacated. The Court also outlined the proper sequencing for
habitual offender determinations as requiring the commission of the second
felony to be subsequent to the sentencing for the first, and the sentencing for the
second felony to have preceded the commission of the felony for which the
enhanced sentence is being sought. Id.
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[8] Reading the SVP statute in a manner consistent with the Indiana Supreme
Court’s decision in Flint, we are convinced that Waller could only be found to
be an SVP under Indiana Code section 35-38-1-7.5(b)(2) if he committed the sex
offense at issue after being convicted of an unrelated sex offense. Because
Waller committed the sex offense at issue in the instant case before he was
convicted of a sex offense in the Henry County case, we therefore conclude that
the trial court erred in finding Waller to be an SVP under Indiana Code section
35-38-1-7.5(b)(2).
[9] However, while the trial court erred in finding Waller to be an SVP under
Indiana Code section 35-38-1-7.5(b)(2), we note that in its Appellee’s Brief, the
State has argued that one remedy would be to remand the matter to the trial
court for resentencing, specifically for the trial court to consider whether Waller
could be found to be an SVP under another subsection of Indiana Code section
35-38-1-7.5. Under these circumstances, we remand the matter to the trial court
with instructions to conduct a hearing during which the trial court should
resentence Waller, considering whether he qualifies as an SVP under any other
subsection of Indiana Code section 35-38-1-7.5.
[10] The judgment of the trial court is reversed and remanded for further
proceedings consistent with this decision.
Baker, J., and Pyle, J., concur.
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