Gourley v. State
| Citation | 121 N.E.3d 138 (Table) |
| Decision Date | 18 January 2019 |
| Docket Number | Court of Appeals Case No. 18A-MI-572 |
| Parties | Jeffery GOURLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Appellant PRO SE: Jeffery Gourley, New Castle, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Aaron T. Craft, Deputy Attorney General, Indianapolis, Indiana
[1] Jeffery Gourley appeals the trial court's dismissal of his motion to remove his sexually violent predator ("SVP") status. We affirm.
[2] Gourley raises two issues on appeal, which we restate as follows:
[3] In October 1997, Gourley sexually molested a child. On December 17, 1997, Gourley and the State entered a plea agreement under which Gourley pleaded guilty to child molesting, a Class B felony. On January 23, 1998, the trial court accepted the plea agreement and sentenced Gourley to twenty years in the Department of Correction ("DOC"), with three years suspended to probation. Pursuant to the plea agreement, Gourley agreed to be subject to various sex offender stipulations, including a requirement that Gourley would register as a sex offender for a ten-year period following his release from prison.
[4] The Indiana Sex Offender Registration Act ("the Act") is codified at Indiana Code Section 35-38-1-7.5. In 1998, our General Assembly amended the Act to create the SVP status. In 2007, the General Assembly again amended the Act ("2007 Amendment") to provide that a person is an SVP, by operation of law, if the person has committed a qualifying offense1 and if the person was released from incarceration, detention, or probation after June 30, 1994. Indiana Code § 35-38-1-7.5(b) (2007). As to the underlying child molesting conviction, Gourley was released from incarceration well after June 30, 1994.
[5] On the effective date of the 2007 Amendment, by operation of law, Gourley became an SVP, subject to a lifetime sex offender registration requirement. On December 30, 2011, Gourley moved to remove his SVP status in Cause Number 3302-1112-MI-104 ("MI-104"). Gourley argued that the 2007 Amendment was unconstitutional as applied to him. Specifically, Gourley alleged that classifying him as an SVP violated the ex post facto clauses of the Indiana Constitution and the U.S. Constitution as well as the separation of powers clause of the Indiana Constitution. After a hearing on April 16, 2012, the Henry County circuit court denied Gourley's motion to remove SVP status in MI-104. Gourley did not appeal.
[6] On September 20, 2017, Gourley moved to remove SVP status on the same grounds as asserted in MI-104. On December 29, 2017, the State filed a motion to dismiss, asked the trial court to take judicial notice of court records from MI-104, and argued that Gourley's claim was barred by the doctrine of res judicata. On February 27, 2018, the trial court found that "[Gourley]'s claim was ruled upon by this Court in 2012, under cause [MI-104]" and granted the State's motion to dismiss on res judicata grounds. App. Vol. II p. 9. Gourley now appeals.
[7] In Lemmon v. Harris , 949 N.E.2d 803 (Ind. 2011) ("Harris "), our supreme court summarized the various amendments of the Act, and most relevantly, the 2007 Amendment, as follows:
Harris , 949 N.E.2d at 807 (citations and footnotes omitted). "An SVP is required to register for an indefinite period unless and until a court, assisted by a board of experts, finds that the offender is no longer an SVP." Id. at 806.
[8] Gourley argues that the trial court erred in dismissing his claim on res judicata grounds. Although Gourley acknowledges that he "[d]oes mention ex post facto [laws]" in MI-104, he contends that MI-104 involved a "due process argument," whereas the instant claim involves an ex post facto argument. Appellant's Br. p. 26.
[9] "Res judicata is a legal doctrine intended ‘to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies.’ " Ind. State Ethics Comm'n v. Sanchez , 18 N.E.3d 988, 993 (Ind. 2014) (quoting Becker v. State , 992 N.E.2d 697, 700 (Ind. 2013) ). "It applies ‘where there has been a final adjudication on the merits of the same issue between the same parties.’ " Id. (quoting Gayheart v. Newnam Foundry Co., Inc. , 271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979) ). Our supreme court has held:
State v. Stidham , 110 N.E.3d 410 (Ind. Ct. App. 2018) (quoting Chemco Transp., Inc. v. Conn , 527 N.E.2d 179, 181 (Ind. 1988) ). If any element is absent, res judicata does not apply. Id. Of these factors, only the third is in dispute here.
[10] In MI-104, Gourley argued that, although, he was never declared an SVP by a court, by application of an unconstitutional ex post facto law, he was belatedly classified as an SVP by the DOC. Here, Gourley argues "that retroactive application of the ‘by operation of law’ amendment of I.C. § 35-38-1-75, violates his right to be free from ex post facto laws." App. Vol. II pp. 16; see id. at 19. In each scenario, Gourley seeks removal of his SVP status because the statutory scheme that created SVP status was not in effect at the time of his sentencing. Gourley's arguments in MI-104 and the instant case are identical.
[11] Finding no meaningful distinction between Gourley's claims in MI-104 and the instant case, we conclude that the controversy adjudicated in MI-104 in 2012 determined the instant issue. Thus, the doctrine of res judicata precludes Gourley's claim. See Stidham , 110 N.E.3d at 420 ; see Love v. State, 22 N.E.3d 663, 664 (Ind. Ct. App. 2014) (). The trial court did not err in granting the State's motion to dismiss on grounds of res judicata.
[12] Next, Gourley argues2 that:
retroactive application of the ‘by application of law ’ amendment of Ind. Code § 35-38-1-7.5, as to [Gourley], violates the ex post clause[s] of the Indiana and United States Constitution[s], because the "by operation of law " amendment [and] any amendments concerning the term "Sexually Violent Predator" had not c[o]me into effect at the time of the commission, conviction, and ultimately sentencing for [Gourley]'s ‘qualifying offense.’
Appellant's Br. p. 14 (emphasis in original).
[13] The ex post facto clause of the Indiana Constitution forbids laws that impose punishment for an act that was not otherwise punishable when it was committed. Ind. Const. art. 1 § 24 ; Harris , 949 N.E.2d at 809. The aim of the ex post facto clause is to ensure that people are "give[n] fair warning of the conduct that will give rise to criminal penalties." Harris , 949 N.E.2d at 809. The ex post facto clause also forbids laws (1) that impose punishment for an act that was not otherwise punishable when it was committed or (2) that impose additional punishment for an act then-proscribed. Id.
[14] Our supreme court has held that "[a] law is ex post facto if it ‘substantially disadvantage[s] [a] defendant because it increase[s] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] defendant of some defense or lesser punishment that was available at the time of the crime.’ " Id. (quoting Stroud v. State, 809 N.E.2d 274, 288 (Ind. 2004) ).
In evaluating ex post facto claims under the Indiana Constitution, we apply the familiar "intent-effects" test .... Under this test, we first determine whether the Legislature meant the Act to establish civil proceedings. If instead its intention was to impose punishment, then the inquiry ends. However, if the Legislature intended a nonpunitive regulatory scheme, then we must examine the Act's effects to determine whether they are in fact so punitive as to transform the regulatory scheme into a criminal penalty; if so, then retroactive application of the law violates the Ex Post Facto Clause.
Harris, 949 N.E.2d at 810 (citations omitted).
[15] In applying the intent-effects test in Harris , our supreme court initially presumed the 2007 amendment was civil and regulatory. See id. at 810 ; see also Jensen v. State, 905 N.E.2d 384, 390-91 (Ind. 2009) (...
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