Allenn Peterson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 30 2018, 8:50 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Allenn Peterson Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Allenn Peterson, November 30, 2018
Appellant-Defendant, Court of Appeals Case No.
33A01-1708-MI-1773
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C02-1702-MI-17
Pyle, Judge.
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Statement of the Case
[1] Allenn Peterson, pro se, appeals the trial court’s order granting the State’s Trial
Rule 12(B)(6) motion to dismiss Peterson’s petition, filed pursuant to the
Indiana Sex Offender Registration Act (“SORA”), in which he requested the
trial court to remove his designation as a sex offender. Peterson, however, had
previously filed a petition under SORA and had been granted relief by the trial
court when it had ordered that Peterson was not required to be designated as a
sex offender under SORA or to register on the online sex offender registry.
Concluding that Peterson’s petition failed to state a claim upon which relief
could be granted, we affirm the trial court’s order.
[2] We affirm.
Issue
Whether the trial court abused its discretion by granting the State’s
motion to dismiss Peterson’s petition to remove his designation as a
sex offender.
Facts1
[3] We previously set out the facts of Peterson’s crimes and subsequent procedural
history in a recent memorandum decision as follows:
On March 11, 1981, Peterson murdered Robert Watkins and
then raped and robbed Watkins’s mother when she arrived home
1
Contrary to Appellate Rule 50, Peterson has included in his Appellant’s Appendix some documents that
where not part of the record below in this cause of action.
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later that evening. Peterson was subsequently convicted of
murder, class A felony rape, and class B felony robbery. He was
sentenced to forty-five years for murder, thirty-five years for rape,
and thirty years for robbery. The sentences for murder and rape
were ordered to be served consecutively. His convictions were
upheld on direct appeal and post-conviction relief. See Peterson v.
State, 453 N.E.2d 196 (Ind. 1983); Peterson v. State, 650 N.E.2d
339 (Ind. Ct. App. 1995).
Peterson v. State, No. 45A03-1408-CR-304, *1 (Ind. Ct. App. Mar. 18, 2015).
Peterson is currently incarcerated and serving his sentence on his rape
conviction. His earliest projected release date is April 8, 2020.
[4] In 1994, the legislature passed the SORA, which required defendants convicted
of certain sex crimes to register as “sex offender[s].” Wallace v. State, 905
N.E.2d 371, 375 (Ind. 2009) (internal quotation marks and citation omitted)
reh’g denied. SORA included registration and notification provisions and
initially applied to eight crimes. Id. Since that time, SORA has been amended
several times and “has expanded in both breadth and scope.” Id.
[5] Generally, SORA now requires that defendants who are convicted of certain
enumerated offenses, including rape and murder, to register as a “sex or violent
offender” and for their identity to appear on the Indiana Sex and Violent
Offender Registry (“the sex offender registry”), which is accessible to the public
via the Internet. See IND. CODE §§ 11-8-8-4.5, 11-8-8-5. Pursuant to INDIANA
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CODE § 11-8-2-12.4(a), the Indiana Department of Correction (“DOC”) is
charged with maintaining the online sex offender registry.2
[6] In 2007, the legislature added INDIANA CODE § 11-8-8-22 to SORA. This
subsection set forth a general procedure for a person, who was required to
register as a sex or violent offender, to petition the trial court to either remove
the person’s designation as an offender or to allow the person to register under
less restrictive conditions. See P.L. 216-2007, § 30 (effective July 1, 2007); I.C. §
11-8-8-22(c).
[7] In 2009, in Wallace, our supreme court held that SORA—as applied to the
defendant who had committed his offense before SORA had been enacted—
violated the ex post facto provision of the Indiana Constitution “because it
impose[d] burdens that ha[d] the effect of adding punishment beyond that
which could have been imposed when his crime was committed.” Wallace, 905
N.E.2d at 384. Thereafter, in 2010, the legislature amended INDIANA CODE §
11-8-8-22, adding further provisions setting forth the appropriate procedure for
an offender to use when filing a petition to remove his SORA offender
designation. See P.L. 103-2010, § 2 (effective March 24, 2010). The
amendment also included an explicit provision that an offender could base his
petition on a claim that the registration requirements of SORA constituted ex
post facto punishment. See I.C. § 11-8-8-22(j).
2
The sex offender registry website was established, pursuant to INDIANA CODE § 36-2-13-5-5, in 2003.
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[8] In 2011, Peterson filed, pursuant to INDIANA CODE § 11-8-8-22 and Wallace, a
petition (“First SORA Petition) requesting the trial court to remove any
designation as a sex offender and to relieve him of the requirement to register as
a sex offender for his 1981 convictions. On August 12, 2011, the trial court
issued an order (“August 2011 Order”) granting Peterson’s request for relief on
his First SORA Petition. The trial court ordered that Peterson was not required
to register as a sex offender under SORA for his crimes committed prior to
1994. The trial court, however, specified that its order did not relieve Peterson
of any future obligation to register under requirements of the Indiana Parole
Board or under federal law.
[9] In 2013, the legislature again amended INDIANA CODE § 11-8-8-22. In relevant
part, it amended subsection (c)(1), which had previously provided that “[a]
person to whom this section applies may petition a court to . . . remove the
person’s designation as an offender[.]” The amendment provided that when an
offender petitioned the trial court to remove his designation as an offender, the
offender could also seek to have the trial court “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[.]”
See P.L. 214-2013, § 13 (effective July 1, 2013); I.C. § 11-8-8-22(c)(1).
[10] In March 2017, Peterson, pro se, filed with the trial court another petition to
remove the designation of sex offender (“Second SORA Petition). He
specifically stated that he was filing the petition pursuant to INDIANA CODE §
11-8-8-22(c)(1). Peterson had apparently learned that, due to his rape
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conviction, he remained designated as a sex offender within the DOC for
purposes of its internal programs, such as the Sex Offender Management and
Monitoring (“SOMM”) program.3 In his petition, Peterson argued that the
DOC was violating the trial court’s August 2011 Order by continuing to
designate him as a sex offender, and he asserted that the trial court should find
this noncompliance to be a contempt of court. He referenced INDIANA CODE §
11-8-8-22(j) and Wallace in support of his argument that he could raise a claim
that the registration requirement constituted an ex post facto punishment in
violation of Article 1, § 24 of the Indiana Constitution, and he requested the
trial court to remove his designation as a sex offender.
[11] Thereafter, the State filed a motion to dismiss, arguing that, under Trial Rule
12(B)(6), Peterson had failed to state a claim upon which relief could be
granted. The State pointed out, and asked the trial court to take judicial notice,
that Peterson was not listed on the online sex offender registry. The State
asserted that Peterson’s request that his sex offender designation be removed
was a request that could not be granted because he had already been granted
relief in his First SORA Petition.
3
In Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014), our Indiana Supreme Court discussed the
SOMM Program, explained that it “is a valuable tool aimed at the legitimate purpose of rehabilitating sex
offenders before they are fully released from State control,” and held that “its requirements do not violate the
Fifth Amendment’s privilege against self-incrimination.”
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[12] In Peterson’s response, he somewhat changed the focus of his argument away
from registration under the sex offender registry to potential future implications
involving his designation as a sex offender within the DOC. He argued that his
designation as a sex offender “would” subject him to the “threat of future
prosecution and punishment” and require him to participate in the DOC’s
SOMM program. (State’s App. Vol. 2 at 17). He asserted that the SOMM
program’s requirements “would violate [his] Fifth Amendment right” and
“would subject [him] to additional punishment if forced to confess to the
offenses not documented or prosecuted.” (State’s App. Vol. 2 at 17).
[13] In July 2017, the trial court issued an order, granting the State’s motion to
dismiss Peterson’s Second SORA Petition. The trial court’s order provided, in
relevant part:
[Peterson] does not appear on the Indiana Sex and Violent
Offender Registry. Therefore, he cannot be granted removal
from the Registry or relief from any registration obligations and
the State of Indiana is not imposing any ex post facto punishment
on him. [Peterson] has failed to state a claim upon which relief
may be granted.
(State’s App. Vol. 2 at 6). Peterson now appeals.
Decision
[14] Peterson appeals the trial court’s order granting the State’s Trial Rule 12(B)(6)
motion to dismiss Peterson’s Second SORA petition to remove his designation
as a sex offender.
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The standard of review for the dismissal of a claim granted
pursuant to Trial Rule 12(B)(6) is de novo, requiring no deference
to the trial court’s decision. A motion to dismiss based on Trial
Rule 12(B)(6) for failure to state a claim upon which relief can be
granted tests the sufficiency of a claim, not the facts supporting
it. Viewing the complaint in the light most favorable to the non-
moving party, we must determine whether the complaint states
any facts upon which the trial court could have granted relief. In
determining whether any facts will support the claim, we may
look only to the complaint and the reasonable inferences to be
drawn therefrom, and we may not rely upon any other evidence
in the record. If a complaint states a set of facts which, even if
true, would not support the relief requested therein, we will
affirm the dismissal. Furthermore, we may affirm the trial
court’s grant of a motion to dismiss if it is sustainable upon any
theory.
Weiss v. Indiana Parole Bd., 838 N.E.2d 1048, 1050 (Ind. Ct. App. 2005) (internal
citations omitted), trans. denied.
[15] At the outset, we note that Peterson has chosen to proceed pro se. It is well
settled that pro se litigants are held to the same legal standards as licensed
attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.
denied. Thus, pro se litigants are bound to follow the established rules of
procedure and must be prepared to accept the consequences of their failure to
do so. Id. “We will not become a party’s advocate, nor will we address
arguments that are inappropriate, improperly expressed, or too poorly
developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct.
App. 2005), trans. denied.
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[16] Peterson argues that the trial court erred by dismissing his Second SORA
Petition, in which he sought relief based on INDIANA CODE § 11-8-8-22(c)(1).
This particular subsection provides, in relevant part, that a person may petition
a trial court to “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[.]” I.C. § 11-8-8-22(c)(1).
[17] On appeal, Peterson acknowledges that he has already received the relief set
forth in INDIANA CODE § 11-8-8-22(c)(1) when the trial court issued its August
2011 Order from his First SORA Petition. Specifically, he acknowledges that
he is not required to register as a sex offender on the sex offender registry and
that the DOC had removed all information about him from the online sex
offender registry.
[18] Peterson, however, contends that INDIANA CODE § 11-8-8-22(c)(1) provided a
mechanism for him to petition the trial court to order the DOC to remove its
internal designation of him as a sex offender and to challenge the future
requirements that may be required with his participation in the SOMM
program. He also contends that the DOC’s sex offender designation could
subject him to “a threat of future prosecution and punishment” and that his
required participation in the SOMM program will constitute ex post facto
punishment. (Peterson’s Br. 8).
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[19] Aside from the facts that Peterson’s arguments about the SOMM program are
not contained on the face of his Second SORA Petition and his arguments
about potential future events do not appear ripe for review, 4 Peterson cannot
use the SORA statutory procedure in INDIANA CODE § 11-8-8-22 as a means to
challenge the DOC’s internal designation or the SOMM program. INDIANA
CODE § 11-8-8-22 sets forth the procedure for an offender to challenge his status
under SORA and to seek removal of all information from the online sex
offender registry.5 See Lockhart v. State, 38 N.E.3d 215, 217 (Ind. Ct. App.
2015). See also Gonzalez v. State, 980 N.E.2d 312, 321 (Ind. 2013) (explaining
that “Indiana Code Section 11-8-8-22 may be utilized only when there is an
ameliorative change in federal or state law applicable to an offender’s prior
conduct, Ind. Code § 11-8-8-22(b), (g), or when an offender files an ex post
facto claim, Ind. Code § 11-8-8-22(j)”). INDIANA CODE § 11-8-8-22 does not
provide a means to challenge the DOC’s internal procedures or its programs
utilized as part of a defendant’s future parole.6
4
“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.” Dixon v.
Indiana Dep’t of Correction, 56 N.E.3d 47, 52 (Ind. Ct. App. 2016) (internal quotation marks and citation
omitted).
5
An offender can also use INDIANA CODE § 11-8-8-22 when seeking to “register under less restrictive
conditions.” I.C. § 11-8-8-22(c)(2).
6
Moreover, we have already held that participation in the SOMM program does not violate the ex post facto
clause. See Patrick v. Butts, 12 N.E.3d 270, 271-72 (Ind. Ct. App. 2014) (rejecting a defendant’s contention
that Wallace applied to the defendant’s participation in the SOMM program and explaining that “the Parole
Board’s authority to impose conditions on parole [such as the SOMM program] is not limited by the date on
which the program was created, but rather is limited by the program’s ability to reintegrate the parolee into
society”).
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[20] Here, at the time Peterson filed his Second SORA Petition, in which he sought
relief based on INDIANA CODE § 11-8-8-22(c)(1), he was not required to register
as a sex offender on the sex offender registry and he was not listed on the online
sex offender registry. Because Peterson’s Second SORA petition failed to state
a claim upon which relief could be granted, we affirm the trial court’s order
granting the State’s motion to dismiss Peterson’s petition. See, e.g., Lockhart, 38
N.E.3d at 218 (holding that a defendant—who had filed, pursuant to INDIANA
CODE § 11-8-8-22, a petition to be removed from the sex offender registry and
whose name did not appear on the registry at the time he had filed the
petition—had failed to state a claim for which relief could be granted and
affirming the trial court’s order dismissing the petition under Trial Rule
12(B)(6)).
[21] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
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