Douglas v. State

• Decision Date: 28 December 2007
• Docket Number: No. 48A02-0701-CR-33.,48A02-0701-CR-33.
• Citation: 878 N.E.2d 873
• Parties: Jeffrey DOUGLAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

878 N.E.2d 873

Jeffrey DOUGLAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-0701-CR-33.

Court of Appeals of Indiana.

December 28, 2007.

Bruce A. Stuard, Elwood, IN, Jason A. Childers, Hulse, Lacey, Hardacre, Austin & Shine, P.C., Anderson, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Jeffrey Douglas ("Douglas") appeals his conviction and sentence of thirty months after pleading guilty to Failing to Register as a Sex Offender, a Class D felony.¹ We affirm the conviction and revise the sentence.

Issues

Douglas raises four issues on appeal, of which we address two²:

I. Whether the sex offender registry statute is an ex post facto law as applied to Douglas; and

II. Whether his sentence is inappropriate.

Facts and Procedural History³

On November 8, 2001, Douglas was released from prison after serving his sentence for three counts of sexual misconduct with a minor, as Class C felonies. Pursuant to the then-existing version of the sex offender statute, Douglas was required to register as a sex offender for the following ten years, which involved registering annually with the local law enforcement. If an offender moved, he was required to provide his new address to the authorities in the community where he last registered and register in his new community. Douglas did register with the Madison County Sheriff's Department on June 3, 2003, but failed to return the following summer for his annual registration. On May 27, 2004, the Madison County Sheriff's Department mailed a letter to Douglas's reported address, reminding him to complete his annual registration. The letter was returned unopened and marked by the postal service as "return to sender moved left no forwarding address." Appendix at 65.

On June 23, 2004, the State charged Douglas with failing to register as a sex offender due to his failure to notify Madison County upon moving. On September 6, 2006, Douglas filed a motion to dismiss, arguing that the amendment to the sex offender registry statute in 2001 violated the federal and Indiana constitutional provisions prohibiting ex post facto laws by imposing additional punishments that were not in effect at the time of conviction. When Douglas was convicted for his sex offense in 1997, the existing version of the sex offender registry statute did not require individuals convicted of sexual misconduct with a minor, as a Class C felony, to register. See I.C. 5-2-12-4(1)(H) (Burns Supp. Ed.1997). However, the statute was modified in 2001 to include such individuals. See I.C. 5-2-12-4(a)(8) (Burns Ed.2001). The State filed its response to the motion on September 25, and that same day the trial court denied the same. On October 23, 2006, Douglas pled guilty to the charge without the benefit of a plea agreement. On November 20, 2006, the trial court sentenced Douglas to the Indiana Department of Correction for thirty months with fifteen months suspended to probation. Douglas now appeals.

Discussion and Decision

I. Ex Post Facto

On appeal, Douglas first argues that the amendment to the sex offender registry statute is an ex post facto law as applied to him because the statute did not apply to him when he was convicted for sexual misconduct with a minor. Before reaching this argument, we must first determine whether Douglas waived this argument for appeal by pleading guilty without the benefit of a plea agreement.

A. Waiver

On appeal, Douglas contends that he did not waive the issue of ex post facto by pleading guilty, because such a constitutional violation is fundamental error and this issue is not being raised for the first time on appeal. However, the cases to which Douglas cites to support this argument either involve a direct appeal from a trial rather than a guilty plea or are no longer good authority. See Brown v. State, 848 N.E.2d 699, 704 (Ind.Ct.App. 2006) vacated on other grounds, 868 N.E.2d 464 (Ind.2007); Odom v. State, 647 N.E.2d 377 (Ind.Ct.App.1995), trans. denied.⁴

The cases cited by the State concluding that most constitutional issues, including double jeopardy challenges, are waived when the defendant pleads guilty are founded upon the circumstance that the defendant's guilty plea was based upon a plea agreement from which he derived a benefit. See Games v. State, 743 N.E.2d 1132, 1135 (Ind.2001) ("Defendants who plead guilty to achieve favorable outcomes in the process of bargaining give up a plethora of substantive claims and procedural rights. Games has waived his claim of double jeopardy."); Tumulty v. State, 666 N.E.2d 394, 395 (Ind.1996); Mapp v. State, 770 N.E.2d 332, 335 (Ind.2002); Mays v. State, 790 N.E.2d 1019, 1022 (Ind. Ct.App.2003).

In Tumulty v. State, our supreme court noted the multiple policy grounds for the judicial precedent that a defendant may not challenge his conviction based upon a guilty plea in a direct appeal. Tumulty v. State, 666 N.E.2d 394, 396 (Ind.1996). First, the plea concludes a dispute between parties, and to permit an appeal would make settlements difficult to achieve. Id. Second, to allow a direct appeal on the merits of the conviction after a guilty plea would dramatically multiply the caseload of the appellate courts. Id. Third, such claims often require a factual inquiry which appellate courts are not equipped to administer. Id.

Here, a plea agreement was not used. Without receiving a benefit such as a reduced sentence or the dismissal of other charges, Douglas pled guilty to the charged offense. Additionally, conducting a trial in this case would have been fruitless as Douglas did not contest the facts of his conduct but rather poses a question of law by challenging the constitutionality of the application of the sexual offender registry. Furthermore, the ex post facto issue had been raised prior to the entry of the guilty plea by way of Douglas's Motion to Dismiss. This resulted in fully briefed arguments from both parties as well as providing notice of the issue to the State and a record on which this Court can base its review. Finally, this is such a narrow set of circumstances that it would not open the floodgates of additional cases coming before this Court. Based on this unique set of facts, we conclude that Douglas did not waive the ex post facto issue.

B. Ex Post Facto

Both the United States Constitution and the Indiana Constitution prohibit ex post facto laws. See U.S. Const. art. I, § 10; Ind. Const. art. I, § 24. The analysis for whether a statute violates these constitutional provisions is the same under the federal and state constitutions. Goldsberry v. State, 821 N.E.2d 447, 464 (Ind.Ct. App.2005). An ex post facto law is one that applies retroactively to disadvantage an offender's substantial rights. Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 513, 166 L.Ed.2d 370 (2006). Specifically, the clauses prohibit enacting a law that imposes a punishment for an act that was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. Goldsberry, 821 N.E.2d at 464. The focus is not on whether the legislative change causes a disadvantage, but rather whether the change increases the penalty by which a crime is punishable or alters the definition of criminal conduct. Id. The principle of this prohibition is that persons have a right to fair warning of the conduct that will give rise to criminal penalties. Armstrong, 848 N.E.2d at 1093.

The sex offender registration statute was amended after Douglas was convicted of the triggering crime to include individuals who committed sexual misconduct with a minor, as a Class C felony. This amended version, Indiana Code Section 5-2-12-4 (Burns Ed.2001), was the version that the trial court used to require Douglas to register as a sex offender. Douglas thus contends the statute, as amended, was applied retroactively in his case. Douglas argues that the amendment to the sex offender registration statute, expanding its applicability, created an additional punishment to being convicted of the sex offense because the failure to register results in incarceration. The question that must be answered is whether the registration requirement and the attendant penalty for its violation is punishment that violates the ex post facto clauses.

The analysis utilized to determine whether a sanction is a punishment is a two-step process. Goldsberry, 821 N.E.2d at 465. First, we must determine whether the legislature intended the proceedings to be civil or criminal. As an aid in this process, we may examine the declared purpose of the legislature as well as the structure and design of the statute. Id. If the intent was to impose punishment, then the inquiry ends. If the intent was civil or regulatory, the next question is whether the statutory scheme is so punitive in either purpose or effect as to negate the State's intention to deem it civil. Id. The second part of the analysis requires the party challenging the statute to provide the clearest proof of the punitive purpose or effect of the statute. Id. Thus, the label given to the statute by the legislature is not determinative if the effect of the statute is so punitive that it can no longer be called a civil sanction. Id.

Indiana statutes are not accompanied by recorded legislative history by which we may determine the legislature's intent when it amended the sex offender registration statute. See id. In Spencer v. O'Connor, this Court considered the circumstances that the sex offender registration provisions were located outside the criminal code and the overall design of the provisions in concluding that the legislature intended the proceedings to be civil in nature. Spencer v. O'Connor, 707 N.E.2d 1039, 1043 (Ind.Ct.App.1999), trans. denied ("These provisions evidence an...