Jonathan L. Slone v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 31 2015, 9:36 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jonathan L. Slone Gregory F. Zoeller
Wolcottville, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathan L. Slone, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
57A04-1503-CR-123
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable G. David Laur,
Appellee-Plaintiff Judge
Trial Court Cause No.
57D01-0208-FA-26
Mathias, Judge.
[1] Jonathan Slone (“Slone”), a convicted sex offender, appeals the Noble Superior
Court’s denial of his petition to remove his sexually violent predator (“SVP”)
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designation. Slone argues that his designation as a sexually violent predator and
the requirement that he register as sex offender for his lifetime violate his due
process rights and the ex post facto provision of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History
[3] On August 14, 2002, the State charged Slone with Class A felony child
molesting. Slone was convicted after a jury trial, and on October 15, 2003,
Slone was sentenced to thirty years in the Department of Correction with five
years suspended to probation. Slone appealed his conviction and sentence, and
this court remanded to the trial court for re-sentencing in 2004. Slone v. State,
No. 57A04-0312-CR-666 (Ind. Ct. App. Aug. 18, 2004). The trial court did not
substantively change Slone’s sentence, and he then appealed the second
sentencing order. On May 20, 2005, this court issued a memorandum decision
affirming the trial court’s sentencing decision. Slone v. State, No. 57A03-0412-
CR-559 (Ind. Ct. App. May 20, 2005). Shortly thereafter, Slone filed a petition
for post-conviction relief, which he later withdrew.
[4] In 2007, under Indiana Code section 35-38-1-7.5 (b)(C), Slone was classified as
a sexually violent predator by operation of law. He then filed several motions
for modification of sentence and another petition for post-conviction relief,
which the trial court denied. Again in 2013 and 2014, Slone filed several more
motions for modification of sentence, which the court also denied.
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[5] On January 14, 2015, Slone was released from the Indiana Department of
Correction, and he subsequently filed a pro se petition to remove his sexually
violent predator status on January 22, 2015. He also submitted a request for
dismissal from sex offender counseling classes and permission for family
visitation, which the trial court denied. Slone then filed a motion to correct
error, which the trial court denied. Slone now appeals.
Due Process
[6] First, Slone argues that under Indiana Code section 35-38-1-7.5, the trial court
did not designate him as a sexually violent predator at his sentencing hearing
and that doing so later violated his due process rights. Slone cites to Indiana
Code section 35-38-1-7.5 (d) which provides that, “[a]t the sentencing hearing,
the court shall indicate on the record whether the person has been convicted of
an offense that makes the person a sexually violent predator under subsection
(b).”
[7] However, effective May 10, 2007, the statute was amended and now mandates
that an individual is a sexually violent predator “by operation of law” if the
person committed a section 35-38-1-7.5(b) offense and he was released from
incarceration, secure detention, or probation for the offense after June 30, 1994.
Although Slone committed the child molesting offense in 2002 before the
Amendment was effective, child molesting is classified as a section 35-38-1-
7.5(b) offense, and he was released from the Department of Correction on
January 14, 2015.
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[8] Slone is a sexually violent predator by operation of law due to his 2003 Class A
felony child molesting conviction and is required to register for life. Lemmon v.
Harris, 949 N.E.2d 803, 806 (Ind. 2011). Slone’s argument that he is improperly
designated a sexually violent predator because the trial court did not designate
him as such at his sentencing hearing has no merit. See Lemmon, 949 N.E.2d at
808-09 (stating “under the 2007 Amendment, the Legislature had changed the
Act from requiring the court to determine SVP status at the sentencing hearing
to the ‘automatic designation of SVP status.’” “At the time Harris was released
from prison in December 2007, the sentencing court was no longer required to
have ‘determined’ a person’s SVP status”). Therefore, Slone’s due process rights
were not violated.
Ex Post Facto
[9] Slone also contends that his designation as a sexually violent predator and the
requirement that he register as a sex offender for his lifetime violate the ex post
facto clause of the Indiana Constitution. Specifically, Slone argues that the
application of INSORA’s 2007 Amendment requiring sexually violent
predators to register for life is a retroactive punishment. 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
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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)).
[10] When we consider ex post facto claims, we assess the alleged violation using
the factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and
adopted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009).
See also Gonzales v. State, 980 N.E.2d 312, 317 (Ind. 2013) (stating “[i]n
evaluating an ex post facto claim under the Indiana Constitution we apply what
is commonly known as the ‘intent-effects test’”). The intent-effects test directs
us to determine whether the Legislature intended the Act to be a regulatory
scheme that is civil and non-punitive. Wallace, 905 N.E.2d at 379. The factors
include:
[1] [w]hether the sanction involves an affirmative disability or
restraint, [2] whether it has historically been regarded as
punishment, [3] whether it comes into play only on a finding of
scienter, [4] whether its operation will promote the traditional
aims of punishment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6] whether an
alternative purpose to which it may rationally be connected is
assignable for it, and [7] whether it appears excessive in relation
to the alternative purpose assigned.
Id.
[11] When we apply the intent-effects test here, we look to Lemmon v. Harris, 949
N.E.2d 803 (Ind. 2011), for guidance. In that case, Harris was convicted of
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several counts of child molesting in 1999 before lifetime registration was
required under INSORA. However, on the date Harris committed his offenses,
sex offenders were required to register for ten years. Id. at 807. Prior to his
releases in 2007 and 2008, the Department of Correction informed Harris that
he was required to register as a sexually violent predator. Id. at 805. Like Slone,
Harris argued that the sexually violent predator classification was a violation of
the ex post facto clause. Id. After weighing the seven factors, our supreme court
concluded:
1. [T]he Act imposes significant affirmative obligations
because Harris must register, re-register, disclose public
and private information, and keep that information
updated.
2. The registration requirements of the Act have a
dissemination component that resembles shaming as
punishment for the act.
3. Harris’s qualifying offense is one of the few included in the
Act for which there is no scienter requirement.
4. The Act deters criminal conduct and promotes community
condemnation of offenders which are traditional aims of
punishment but these effects apply the same to an offender
who is required to register for ten years as to one who is
required to register for life. Harris is not in a different
position than before the 2007 Amendment, so this factor
should lean toward treating the effects of the acts as non-
punitive when applied to Harris.
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5. The Act applies only to criminal behavior, which suggests
that its effects are punitive. However, Harris was already
required to register because his behavior was criminal
before the 2007 Amendment.
6. [T]he Act advances a legitimate regulatory purpose
because it promotes public safety by protecting the public
from repeat sex offenders.
7. The Act’s requirements are not excessive in relation to its
legitimate, regulatory purpose because Harris was already
subject to the registration requirements based on when he
was convicted and the 2007 Amendment also provides a
process by which Harris may ask to no longer be
considered a SVP.
Id. at 811-13.
[12] Although the first three factors leaned toward treating the Act as punitive, the
remaining four factors leaned in favor of treating the Act as non-punitive when
applied to Harris. Id. at 813. See also Jensen v. State, 905 N.E.2d 384, 394 (Ind.
2009) (concluding that the effects of the act were non-punitive when applied to
Jensen because the “broad and sweeping” disclosure requirements were in place
and applied to Jensen at the time of his guilty plea in 2000; therefore, requiring
him to register under the 2006 Amendment to the Act does not violate
Indiana’s constitutional prohibition against ex post facto laws).
[13] Here, several of the intent-effects test factors weigh in favor of treating
INSORA as non-punitive when applied to Slone. When Slone committed child
molesting in 2002 he was required to register as a sex offender for ten years.
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Therefore, he was required to register prior to the 2007 INSORA Amendment.
See Lemmon, 949 N.E.2d at 812-813. Our courts have consistently held that
INSORA advances a legitimate regulatory purpose to protect the public from
repeat sex offenders. And importantly, like the 2006 amendment, the 2007
amendment provides that in ten years from the date of Slone’s release from
prison, the time frame he was originally required to register, he may petition the
court to consider whether he should no longer be considered a sexually violent
predator. Ind. Code § 35-38-1-7.5(g) (Supp. 2007). We therefore conclude that
Slone’s designation as a sexually violent predator and the accompanying
registration requirements do not violate Indiana’s constitutional ex post facto
prohibition.
Conclusion
[14] For all of these reasons, we affirm the trial court’s denial of Slone’s petition to
remove the designation of his status as a sexually violent predator.
[15] Affirmed.
Baker, J., and Bailey, J., concur.
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