Smith v. State

• Decision Date: 23 August 2022
• Docket Number: Court of Appeals Case No. 21A-CR-2493
• Citation: 194 N.E.3d 118
• Parties: Robert Eugene SMITH, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

194 N.E.3d 118

Robert Eugene SMITH, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-2493

Court of Appeals of Indiana.

FILED August 23, 2022

Attorney for Appellant: Lisa Diane Manning, Plainfield, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

1] Robert Eugene Smith, Jr., pursues an interlocutory appeal following the trial court's denial of his motion to dismiss the charging information alleging he committed two counts each of Level 5 felony failure to register as a sex or violent offender¹ and Level 6 felony failure to register as a sex or violent offender.² The parties raise three issues on appeal, which we revise and restate as:

1. Whether Smith's motion to dismiss was timely filed;

2. Whether Smith was under a legal obligation to register as a sex offender at the time of the alleged offenses; and

3. If Smith was under an obligation to register, whether the obligation was constitutional.

We affirm.

Facts and Procedural History

[2] On April 15, 2004, Smith committed Class D felony sexual battery³ and Class A felony domestic battery⁴ against an adult victim. At the time of those offenses, the Indiana Code imposed a lifetime registration obligation on offenders convicted of sexual battery when the offense included

[194 N.E.3d 122

the use of force or threat of force. See Ind. Code § 5-2-12-4(a)(10) (2003) & Ind. Code § 5-2-12-13 (2003). Effective July 1, 2007, the General Assembly amended the Indiana Code to require offenders convicted of sexual battery as a Class D felony to register for only ten years. See Ind. Code § 11-8-8-19 (2007).

3] Smith began to register as a sex offender following his release from incarceration in September 2007. At some point, Smith failed to comply with his registration obligations. The State charged Smith in Owen County with Class D felony failure to register as a sex or violent offender,⁵ and Smith pled guilty to the offense on June 28, 2017. The trial court imposed a one-year sentence. On March 19, 2018, the State charged Smith in Marion County with two counts of Level 5 felony failure to register as a sex or violent offender.⁶ Smith plead guilty to the charges pursuant to a plea agreement, and the trial court imposed an aggregate three-year sentence on June 21, 2018. The trial court ordered Smith to serve two years of the sentence in community corrections, and the trial court suspended one year of his sentence to probation.

[4] On June 22, 2018, Smith contacted the Johnson County Sheriff's Office to register his address in Johnson County. On June 26, 2018, Sergeant Bill Pfifer of the Johnson County Sheriff's Office composed the following memorandum, informing Smith that his registration obligation was only ten years and notifying him of a change in his registration status:

[194 N.E.3d 123

(App. Vol. II at 100.)

5] On January 28, 2019, the division of the DOC responsible for maintaining the sex and violent offender registry reclassified Smith as a lifetime registrant.⁷ According to the probable cause affidavit, on September 15, 2020, Michelle Bopp, the record keeper for the sex and violent offender registry for the Hendricks County Sheriff's Department, notified Detective

[194 N.E.3d 124

Don Donaldson, also of the Hendricks County Sheriff's Department, that she received information Smith no longer resided at his registered address. Detective Donaldson confirmed Smith vacated his registered address in mid-August, and the trial court issued a warrant for Smith's arrest.

6] The State, acting through the Hendricks County Prosecuting Attorney, filed a criminal information charging Smith with two counts of Level 5 felony failure to register as a sex or violent offender and two counts of Level 6 felony failure to register as a sex or violent offender. The State also filed an information for a habitual offender enhancement⁸ that alleged Smith had accrued four prior felony convictions. At Smith's initial hearing, the trial court set an omnibus date of November 19, 2020. Smith then filed a motion to dismiss the charging information on August 11, 2021. Smith argued it was unconstitutional for the State to continue to require him to register for life when the legislature passed a law after Smith's conviction reducing the registration period for his crime to ten years. Smith submitted as an exhibit in support of his motion to dismiss an email he received on September 29, 2020, from a DOC registration coordinator, which stated:

Based on our records, Mr. Smith was convicted [of] Sexual Battery as a Class D felony in 2005. Both the charging information and probable cause affidavit state that force was used in the offense. Mr. Smith is required to register as a sex offender for life, with the use of force being the lifetime qualifier ( Indiana Code 11-8-8-19 ).

(Id. at 102.)

[7] The State filed a "motion to dismiss defendant's motion to dismiss" on the basis Smith's motion was untimely. (Id. at 108.) The State also argued Smith failed to put forth a compelling reason justifying retroactive application of the 2007 amendment shortening the registration period for those convicted of Class D felony sexual battery. On September 13, 2021, the trial court summarily denied Smith's motion to dismiss without conducting a hearing on the motion. The trial court subsequently certified its ruling for interlocutory appeal, and we accepted jurisdiction.

Discussion and Decision

1. Timeliness

[8] Before entertaining Smith's argument, we first address the State's argument that Smith's motion to dismiss was untimely filed and subject to denial on that basis. The trial court may summarily reject an untimely filed motion to dismiss a criminal information, and an untimely filed motion ordinarily results in waiver of the issue on appeal unless the defendant can demonstrate fundamental error. Chavez v. State , 988 N.E.2d 1226, 1230 (Ind. Ct. App. 2013), trans. denied. Indiana Code section 35-34-1-4, in relevant part, states:

(a) The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds:

(1) The indictment or information, or any count thereof, is defective under section 6 of this chapter.^{[9 ]}

[194 N.E.3d 125

* * * * *

(11) Any other ground that is a basis for dismissal as a matter of law.

(b) Except as otherwise provided, a motion under this section shall be made no later than:

(1) twenty (20) days if the defendant is charged with a felony; or

(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;

prior to the omnibus date. A motion made thereafter may be summarily denied if based upon a ground specified in subdivision (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion to dismiss based upon a

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