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Friday, October 26, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

COA holds that that imposition of a lifetime registration requirement for sexually violent predators runs afoul of ex post facto considerations. In Anthony Thompson v. State of Indiana , a 12-page opinion, Senior Judge Sullivan writes:

Anthony Thompson (Thompson) challenges the sentencing procedures followed by the sentencing court in imposing his aggregate sentence of sixty-three years for multiple sexual offenses perpetrated upon the fifteen-year-old victim. He also challenges the sentences themselves. * * *

IV. Thompson challenges the trial court’s finding that Thompson is a sexually violent predator.

The instant offenses were committed February 2, 2005, but Thompson was not sentenced until September 25, 2006. During the interim, the General Assembly, effective July 1, 2006, amended the statute concerning a determination that a person is a sexually violent predator. At the time these offenses were committed, the statute then in effect (I.C. 5-2-12-4.5), as does the amended statute (I.C. 35-38-1-7.5), defined a sexually violent predator as a person “who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any. . . . offenses [enumerated in I.C. 11-8-8-5]. * * *

Thompson argues that the lifetime registration impact by reason of the trial court’s determination is violative of ex post facto principles. We disagree.

Insofar as the actual determination made that Thompson is a sexually violent predator, we discern no difference between the prior statutory scheme and the scheme allegedly employed by the sentencing court. Accordingly, we do not conclude that ex post facto considerations are implicated in that determination.

Quite a different question is presented by Thompson’s challenge to the lifetime registration aspect of the trial court’s order. The statute formerly in place, Ind. Code § 5-2-12-13, provided that the duty of a sex and violent offender to register terminated after ten years unless the individual had been determined to be a sexually violent predator, in which case the registration requirement was for an “indefinite period.” This proviso was subject to an exception if a court “assisted by a board of experts finds that the sex and violent offender is no longer a sexually violent predator. . . .”

The amended statute currently in place, Ind. Code § 11-8-8-19, contains a change. It provides for a ten-year registration period for a sex or violent offender unless that person has been determined to be a sexually violent predator, in which case he must register “for life.” The change from a registration requirement for “an indefinite period subject to termination if the individual was found to be no longer a sexually violent predator” to an unequivocal and absolute requirement of registration for life is not an inconsequential change. This conclusion leads us to a consideration of Thompson’s claim of an ex post facto violation.

We first observe that although the statutory provision for determination that a person is a sexually violent predator (Ind. Code § 35-38-1-7.5) is placed within the criminal code, the provision for registration and the duration of the registration period is within the statutory code provisions dealing with the Department of Correction. This factor of placement within the Indiana Code does not provide us with a vehicle for stating with certitude that the provision is clearly not penal in nature but rather is purely regulatory. The lifetime registration impact of the trial court’s sexually violent predator determination most assuredly has penal implications. See Goldsberry v. State, 821 N.E.2d 447 (Ind. Ct. App. 2005); but see Spencer v. O’Connor, 707 N.E.2d 1039 (Ind. Ct. App. 1999), trans. denied.

In keeping with the tenor of the Goldsberry decision, we hold that imposition of a lifetime registration requirement runs afoul of ex post facto considerations. Accordingly, we affirm the convictions and the sentences imposed but reverse the sexually violent predator determination insofar as it requires Thompson to register for life. We remand with instructions to amend the registration requirement to be for an indefinite period subject to the right of Thompson to seek a determination at some time in the future that he is no longer a sexually violent predator.

Affirmed in part and reversed in part and remanded.

In State of Indiana v. Rex David Delph , an 11-page opinion, Judge Bradford writes:
Appellant-Plaintiff the State of Indiana appeals from the trial court’s discharge of Rex David Delph, who had been charged with two counts of murder, one count of Class A felony arson, and two counts of felony murder, pursuant to Indiana Rule of Criminal Procedure 4(C). * * *

We conclude that the trial court correctly charged the State with a delay of 221 days from the date Delph was charged to the original trial setting, as the State conceded below that it should have been charged 221 days. The 147-day delay at issue, however, should have been charged to Delph, as he acquiesced in it. As for the delay caused by the final trial setting, we conclude that it was properly charged to the State but that sixteen additional days (and not sixty-three) should have been charged to the State. Finally, we decline to dismiss this appeal on the basis that the State failed to file a timely Brief of Appellant. We reverse and remand with instructions that the State will have a total of 128 days4 to bring Delph to trial following certification of this opinion.

Carla M. Browell v. Rick W. Bagby, II - "Carla (Bagby) Browell (“Mother”) appeals the trial court’s grant of Rick Bagby’s (“Father”) petition to modify custody after Mother filed a notice of intent to move to Nashville, Tennessee. Because we find that the trial court acted within its discretion in granting the petition, we affirm. * * * For the foregoing reasons, we conclude that the trial court did not abuse its discretion in granting Father’s petition to modify custody."

NFP civil opinions today (1):

In the Matter of the Merrillville Conservancy District (NFP) - "Independence Hill Conservancy District (“IHCD”) appeals the trial court’s order granting Merrillville Conservancy District’s (“MCD”) petition to annex certain real estate owned by GCC Merrillville Ventures, LLC (“GCC”), to MCD’s sanitary sewer service territory. We affirm."

NFP criminal opinions today (1):

Jaconiah I. Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on October 26, 2007 01:01 PM
Posted to Ind. App.Ct. Decisions