Lemmon v. Harris

• Decision Date: 28 June 2011
• Docket Number: No. 52S02–1011–CV–642.,52S02–1011–CV–642.
• Citation: 949 N.E.2d 803
• Parties: Bruce LEMMON, in His Official Capacity as Commissioner of the Indiana Department of Correction, Appellant (Respondent below),v.Michael L. HARRIS, Appellee (Petitioner below).
• Court: Indiana Supreme Court

949 N.E.2d 803

Bruce LEMMON, in His Official Capacity as Commissioner of the Indiana Department of Correction, Appellant (Respondent below),

v.Michael L. HARRIS, Appellee (Petitioner below).

No. 52S02–1011–CV–642.

Supreme Court of Indiana.

June 28, 2011.

Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.Cara Schaefer Wieneke, Indianapolis, IN, Attorney for Appellee.Stephen T. Owens, Public Defender of Indiana, Emily J. Witney, Gregory L. Lewis, Deputy Public Defenders, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Office of the Public Defender.

On Petition to Transfer from the Indiana Court of Appeals, No. 52A02–0911–CV–1088.

SULLIVAN, Justice.

A sex offender who committed his crimes before the Legislature created the status of “sexually violent predator” challenges that status being subsequently imposed upon him “by operation of law.” We conclude that his status has in fact changed by operation of law and that this change does not violate Indiana's prohibition on ex post facto laws or doctrine of separation of powers.

Background

In April, 1999, Michael Harris pled guilty in Kosciusko Superior Court to child molesting as a Class B felony. He was sentenced to a prison term of ten years and was required to register on the sex offender list for a period of ten years following his release from incarceration. Harris was released to parole in 2002,¹ 2005, and 2007, but was subsequently reincarcerated each time for parole violations. He was last released on December 1, 2008,² and has completed parole.

Either simultaneously with or prior to his releases in 2007 and 2008, the Department of Correction notified Harris that he was required to register as a sexually violent predator (“SVP”) with local law enforcement for his lifetime. The notification forms included the question “Is the offender a sexually violent predator under IC 35–38–1–7.5?” and a box that was checked “Yes.” Appellant's App. 104–05. The forms also included the question “How long is the offender required to register under IC 11–8–8?” and a box that was checked “Life.” Id. Harris refused to sign the forms on both occasions. He acknowledged that he must register with local law enforcement as a sex offender for ten years but disagreed that he was an SVP and required to register for life.

In September, 2007, while still incarcerated,³ Harris filed a complaint in the Miami Circuit Court for declaratory judgment and injunctive relief against the Commissioner of the Indiana Department of Correction ⁴ (referred to collectively with the Department of Correction as “DOC”). Arguing primarily that the DOC lacked the authority to make an SVP determination, he requested a declaration that his reporting obligation was for ten years following his release from incarceration and further requested that the DOC remove the term “sex predator” and statement “lifetime notification” from his offender detail and type on the Indiana Sheriff's Sex and Violent Offender Registry website.⁵

The trial court denied both parties' motions for summary judgment and, following a bench trial, entered a declaratory judgment and injunctive relief for Harris, thereby removing his SVP status.

The Court of Appeals affirmed the trial court. It held that the DOC was not authorized by statute to determine Harris's status as an SVP and that his status did not change by operation of law under Indiana Code section 35–38–1–7.5(b). Buss v. Harris, 926 N.E.2d 1110, 1117–18 (Ind.Ct.App.2010), reh'g denied. Thus, the Court of Appeals concluded that he was required to report for ten years and not for his lifetime, “as the change to the duration of Harris's reporting obligation would have occurred only by a finding and conclusion that his status had changed.” Id. at 1118.

The DOC sought, and we granted, transfer, Buss v. Harris, –––N.E.2d –––– (Ind.2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

I

The Indiana Sex Offender Registration Act (the “Act”) generally requires persons convicted of certain offenses to register with local law enforcement agencies and to disclose detailed personal information. This Court has been required to interpret the Act in several cases in recent years. See Hevner v. State, 919 N.E.2d 109 (Ind.2010) (considering whether the Act as applied violates Indiana's prohibition on ex post facto laws); State v. Pollard, 908 N.E.2d 1145 (Ind.2009) (same); Jensen v. State, 905 N.E.2d 384 (Ind.2009) (plurality opinion) (same); Wallace v. State, 905 N.E.2d 371 (Ind.2009) (same); Jones v. State, 885 N.E.2d 1286 (Ind.2008) (considering when the Act requires the trial court to make an SVP determination).

One of the reasons we have had so many cases involving the Act is that it has been amended multiple times since first being enacted in 1994. See Wallace, 905 N.E.2d at 374–77 (outlining the history of the Act and its various amendments); Doe v. O'Connor, 790 N.E.2d 985, 986–87 (Ind.2003) (same). Here is a brief sketch of the Act's evolution (with the key changes from year-to-year emphasized):

1. The Act as amended through 1997 (“1997 Act”):

a. A sex “offender” is defined as a person convicted in Indiana after June 30, 1994, of a qualifying offense listed in Indiana Code section 5–2–12–4(1) (Supp.1997); this list included child molestation. I.C. § 5–2–12–4(1)(C).

b. A sex “offender” is required to register with local law enforcement agencies and to disclose detailed personal information, I.C. §§ 5–2–12–5, –6, for ten years after the latter of his or her release from prison, placement on parole, or placement on probation, I.C. § 5–2–12–13.

The 1997 Act was the version of the statute in effect at the time Harris committed his offenses and applied to his sentencing.⁶

2. As amended in 1998 (“1998 Amendment”):

a. A sexually violent predator (“SVP”) is defined as “an individual who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any of the offenses described in section 4 of this chapter.” Ind.Code § 5–2–12–4.5 (1998); see Pub.L. No. 56–1998, § 7, 1998 Ind. Acts 917, 924 (effective July 1, 1998).

b. The court is required to determine at the sentencing hearing whether a person is an (“SVP”) after consulting with two board certified psychologists or psychiatrists. I.C. § 35–38–1–7.5(c).

c. 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. I.C. § 5–2–12–13(b).

3. As amended in 2003 (“2003 Amendment”):

a. An SVP is required to register for life. Ind.Code § 5–2–12–13(b) (Supp.2003).

4. As amended in 2006 (“2006 Amendment”):

a. A person is an SVP in one of two ways:

i. Subsection (b)—a person is an SVP if he or she, being at least eighteen years of age, commits a qualifying offense, Ind.Code § 35–38–1–7.5(b) (Supp.2006); this list included child molesting as a Class A or Class B felony. I.C. § 35–38–1–7.5(b)(1)(C).

ii. Subsection (a)—a person is an SVP if he or she “ suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any of the offenses described in [Ind.Code section 11–8–8–5].” I.C. § 35–38–1–7.5(a) (emphasis added) (formerly Ind.Code § 5–2–12–4.5).⁷

b. The court is required to determine at the sentencing hearing whether the person is an SVP under subsection (b); if the court does not find the person to be an SVP under subsection (b), the court is required to consult with experts to deter mine if the person is an SVP under subsection (a). I.C. § 35–38–1–7.5(d)–(e).

5. As amended in 2007 (“2007 Amendment”):

a. Subsection (b) amended—a person is an SVP “ by operation of law if an offense committed by the person [is a qualifying offense] and the person was released from incarceration, secure detention, or probation for the offense after June 30, 1994.” ⁸ Ind.Code § 35–38–1–7.5(b) (Supp.2007) (emphasis added).

b. The court is required at the sentencing hearing to “ indicate on the record whether the person has been convicted of an offense that makes the person a sexually violent predator under subsection (b).” I.C. § 35–38–1–7.5(d) (emphasis added).

c. The court no longer “determines” SVP status at the sentencing hearing unless a person is not an SVP under subsection (b) and the prosecuting attorney requests a hearing to determine whether the person is an SVP under subsection (a). I.C. § 35–38–1–7.5(e). If the court grants the request, it must conduct the hearing and consider the testimony of two experts before determining whether the person is an SVP under subsection (a). Id.

II

The enactments outlined above apply to Harris as follows:

1. Because Harris committed his crimes while the 1997 Act was in effect, he was a sex “offender” and was required to register with local law enforcement agencies and to disclose detailed personal information for ten years after release.⁹

2. Harris was not affected by the 1998 Amendment, 2003 Amendment, or 2006 Amendment when they were enacted.

The State takes the position that the 2007 Amendment applies to Harris because he was convicted of one of the qualifying offenses and because he was released from prison after June 30, 1994. As such, the State maintains, he became an SVP by “operation of law” pursuant to the 2007 Amendment and, as an SVP, is subject to the lifetime-registration requirement for SVPs enacted in the 2003 Amendment.

Harris contends that he is not subject to the 2007 Amendment. Specifically, he argues that the DOC is not authorized to change his status to SVP where the trial court at sentencing did not make that determination and further argues that his status did not change by operation of law. Both the trial court and Court of Appeals agreed. We, however, reach a different conclusion.

The Court of Appeals relied heavily on our opinion in Jones v. State, 885...