David S. Healey v. State of Indiana

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APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DAVID S. HEALEY GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID S. HEALEY, )
)
Appellant-Petitioner, )
)
vs. ) No. 02A03-1107-PC-356
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1011-PC-0109
August 2, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
David S. Healey, pro se, appeals the post-conviction court’s denial of his petition
for post-conviction relief and his petition for summary disposition. He contends that a
1995 amendment to the Indiana Sex Offender Registration Act is an impermissible ex
post facto law as applied to him, entitling him to post-conviction relief, and that the post-
conviction court abused its discretion by not holding a hearing on his petition for
summary disposition. We find that the amendment is not an impermissible ex post facto
law and that the post-conviction court did not abuse its discretion by not holding a
hearing on his summary disposition petition. We therefore affirm.
Facts and Procedural History
On July 1, 1994, the Indiana General Assembly enacted the first version of the
Indiana Sex Offender Registration Act (“the Act”). This version of the Act required
individuals convicted of certain offenses to register as sex offenders until they were no
longer on probation or had been discharged from parole. In September 1994, Healey
committed an offense that required his compliance with the Act. On July 1, 1995, the
Indiana General Assembly amended the Act, requiring offenders to register as sex
offenders for ten years after the date that the offender was released from prison, placed on
parole, or placed on probation, whichever occurred last. See Ind. Code § 5-2-12-13(1995) (repealed by P.L. 140-2006, Sec. 41 and recodified under Ind. Code § 11-8-8-19).
On July 7, 1995, Healey pled guilty to Class C felony child molesting and received an
executed sentence of eight years. He was released on parole from the Department of
Correction on September 7, 1999, and was discharged from parole on June 20, 2003.
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On July 21, 2009, the State charged Healey with Class D felony failure to register
as an offender. Healey pled guilty and was sentenced to two years imprisonment. He
later filed a petition for post-conviction relief arguing: (1) the Act violated Indiana’s
constitutional provision against ex post facto laws and (2) ineffective assistance of trial
counsel for not advising him that a defense for his failure to register charge was available
under the claim that the Act constituted an ex post facto law. Appellant’s App. p. 19-21.
The State filed its motion to have the cause submitted on affidavits, which was granted.
Id. at 27. Healey submitted his affidavit, and the State submitted its response to the
affidavit. Id. at 28-59. Healey then filed for a motion for summary disposition, arguing
that he was entitled to post-conviction relief because the 1995 amendment to the Act was
an ex post facto law. Id. at 60-66. The post-conviction court entered its findings of facts
and conclusions of law denying post-conviction relief and later denied Healey’s motion
for summary disposition before the State responded to the motion. Id. at 16.
Healey filed a motion to reconsider both the denial of his motion for summary
disposition and the denial of his post-conviction relief. Id. at 81-90. Both motions were
denied.
Also, on September 22, 2010, Healey was again charged with Class C felony
failure to register as an offender. He was found guilty as charged and later appealed his
conviction, arguing that the Act constituted an ex post facto law as applied to him under
both the United States and Indiana Constitutions and that his sentence was inappropriate.
Both his conviction and his sentence were upheld by this Court. Healey v. State, 969
N.E.2d 607 (Ind. Ct. App. 2012).
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Healey now appeals the post-conviction court’s denial of his motion for summary
disposition and the denial of his post-conviction relief.
Discussion and Decision
Healey raises two issues on appeal: (1) whether the post-conviction court erred in
denying his petition for post-conviction relief and (2) whether the post-conviction court
abused its discretion in denying his motion for summary disposition without holding a
hearing.
I. Petition for Post-Conviction Relief
Post-conviction proceedings provide defendants the opportunity to raise issues not
known or available at the time of the original trial or direct appeal. Stephenson v. State,
864 N.E.2d 1022, 1028 (Ind. 2007), reh’g denied. “In post-conviction proceedings, the
defendant bears the burden of proof by a preponderance of the evidence.” Id. We review
factual findings of a post-conviction court under a “clearly erroneous” standard but do
not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the
credibility of the witnesses and will examine only the probative evidence and reasonable
inferences that support the decision of the post-conviction court. Id. Additionally, the
post-conviction court here entered findings of fact and conclusions thereon, as required
by Indiana Post-Conviction Rule 1(6). We cannot affirm the judgment on any legal basis,
but rather we must determine if the court’s findings are sufficient to support the
judgment. Huddleston v. State, 951 N.E.2d 277, 280 (Ind. Ct. App. 2011), trans. denied.
Healey contends that the Act violates the ex post facto provision of the Indiana
Constitution, so he is entitled to post-conviction relief. However, he raised this issue in
the direct appeal of his conviction stemming from his September 2010 Class C felony
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failure to register as an offender charges, and a panel of this Court found that “Healey has
not carried his burden of demonstrating that as applied to him, the 1995 amendment
violates the Indiana constitutional prohibition against ex post facto laws.” Healey, 969
N.E.2d at 616. We conduct the same analysis in this case, and we reach the same result.
In evaluating ex post facto claims under the Indiana Constitution, we apply the
“intent-effects” test to determine if the law punishes an act that was not punishable when
it was committed or imposes an additional punishment to that which was in place at the
time the act was committed. Jensen v. State, 905 N.E.2d 384, 389-90 (Ind. 2009). We
first discern if the legislature intended to impose punishment or create a non-punitive
regulatory scheme. If it intended to impose punishment, the analysis ends. However, if it
intended to create a non-punitive regulatory scheme, we must conduct a further analysis
to determine if the scheme is “so punitive in effect as to negate that intention thereby
transforming what was intended as a civil regulatory scheme into a criminal penalty.” Id.
at 390. In this case, we agree with the reasoning in Healey that the legislative intent here
was to create a non-punitive regulatory scheme – namely to promote public safety.
Healey, 969 N.E.2d at 613. Therefore, our analysis must continue.
Since there is no punitive intent on the part of our legislature, we must now
determine whether applying the 1995 amendment to Healey is punitive. To determine
this, we analyze the following seven factors established by the United States Supreme
Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):
(1) Whether 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 punishment,
(5) whether the behavior to which it applies is already a crime, (6) whether
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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.
Lemmon v. Harris, 949 N.E.2d 803, 810 (Ind. 2011) (quoting Wallace v. State, 905
N.E.2d 371, 379 (Ind. 2009)). In analyzing the seven Mendoza-Martinez factors, we
adopt the reasoning and holding from Healey – only two of the seven factors “lean in
favor of treating the effects of the 1995 amendment as punitive when applied to Healey.”
969 N.E.2d at 616.
We agree that the first factor is not punitive because the amendment does not
involve an affirmative disability or restraint. In Jensen, our Supreme Court found that
extending the registration requirements from ten years to life was only slightly punitive,
905 N.E.2d at 392, so increasing the registration requirement by ten years “does not favor
treating the effects of the 1995 amendment as punitive as applied to Healey.” Healey,
969 N.E.2d at 614. We also agree that the second and third factors favor finding the 1995
amendment to be punitive as applied to Healey. Our Supreme Court has determined that
the Act has historically been regarded as punishment, see, e.g., Wallace, 905 N.E.2d at
380-81, and that the Act “overwhelmingly applies to offenses that require a finding of
scienter for there to be a conviction.” Id. at 381.
However, we find the rest of the factors to favor finding the 1995 amendment non-
punitive as applied to Healey. We adopt the reasoning in Healey that the amendment
does not promote the traditional aims of punishment. 969 N.E.2d at 614. Healey is in the
same position after the Act was amended as before; he is still required to register as an
offender, which is the portion of the Act that promotes punishment. Id. at 615. The only
difference is the time frame during which he must register, which does not have a
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punitive effect. Id. We also agree that “Healey’s behavior was criminal both before and
after the 1995 amendment,” id., so the fifth factor is non-punitive as applied to him. The
sixth factor is non-punitive because the Act advances a legitimate regulatory purpose, as
our Supreme Court unequivocally found in Jensen, 905 N.E.2d at 393, and this Court
found in Healey, 969 N.E.2d at 615. Finally, we agree with the reasoning in Healey that
the seventh factor is also non-punitive because the Act is not excessive in relation to the
alternative purpose assigned. Id. at 616. The Act’s initial requirements were in place
when Healey pled guilty in 1995, and the only change was the length of time for which
Healey must register. Our Supreme Court held in Jensen that this did not render the
amendment punitive, 905 N.E.2d at 394, so the same results here.
Therefore, after analyzing the seven Mendoza-Martinez factors, we agree with the
previous panel of this Court that found that “Healey has not carried his burden of
demonstrating that as applied to him, the 1995 amendment violates the Indiana
constitutional prohibition against ex post facto laws.” Healey, 969 N.E.2d at 616. The
1995 amendment is not punitive as applied to him.
II. Motion for Summary Disposition
Healey also contends that the post-conviction court abused its discretion in
denying his motion for summary disposition without holding a hearing. He argues that
the post-conviction rules dictate that the State be given time to respond to his motion and
that either party be given time to move for a hearing on the motions after the response is
filed. We disagree.
Indiana Post-Conviction Rule 1(4)(g) governs summary dispositions and states:
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The court may grant a motion by either party for summary disposition of
the petition when it appears from the pleadings, depositions, answers to
interrogatories, admissions, stipulations of fact, and any affidavits
submitted, that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. The court may ask for oral
argument on the legal issue raised. If an issue of material fact is raised,
then the court shall hold an evidentiary hearing as soon as reasonably
possible.
(Emphasis added). As the plain language of the rule indicates, the court may ask for oral
argument on the legal issues raised in the motion for summary disposition; it is not
required to conduct a hearing.
We find that the post-conviction court did not abuse its discretion in denying
Healey’s motion for summary disposition without a hearing.
Affirmed.
MATHIAS, J., and BARNES, J., concur.
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