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Tuesday, June 28, 2011
Ind. Decisions - Supreme Court posts second opinion today
In Bruce Lemmon, et al. v. Michael L. Harris, an 18-page, 4-1 opinion, Justice Sullivan writes:
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. * * *
Harris‘s status is an SVP by operation of law, and that classification does not violate the Indiana Constitution‘s Ex Post Facto Clause or separation of powers provision. The judgment of the trial court is reversed.
Shepard, C.J., and Rucker and David, JJ., concur.
Dickson, J., dissents with separate opinion: I respectfully dissent. In accord with the dissent in Jensen v. State, 905 N.E.2d 384, 396–98 (Ind. 2009) (Boehm, J., dissenting), I believe that the defendant's reclassification and the resulting enhanced requirements under the 2007 Amendment constitute additional punishments that violate the Ex Post Facto Clause of the Indiana Constitution when applied to this defendant, who was sentenced in 1999.
ILB: See IV, beginning on p. 14, for an interesting separation of powers argument:
Harris, supported by a helpful amicus brief from the Indiana Office of the Public Defender, also raises another constitutional argument with respect to the 2007 Amendment, one that we have yet to consider in our previous cases dealing with the Act. Relying on the Supreme Court of Ohio‘s recent decision in State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, he contends that the Act violates the constitutional principle of separation of powers. Specifically, Harris maintains that the automatic designation of offenders as SVPs "by operation of law" has the effect of permitting the DOC, an executive branch of state government, to reopen final judgments and thereby exercise a function reserved to the judiciary by the Indiana Constitution. * * *
But unlike the Ohio Supreme Court, we do not think that the "by operation of law" clause works to reopen a final judgment in the present case. * * *
In other words, the "by operation of law" clause did not change a judicial determination that Harris was not an SVP to him being an SVP.
Nor do we think that the "by operation of law" clause removes the judiciary‘s discretionary function in sentencing and place it with the DOC. The statute does not grant the DOC any authority to classify or reclassify. SVP status under Indiana Code section 35-38-1-7.5(b) is determined by the statute itself. * * *
Unlike the statute at issue in the Ohio case, Indiana‘s Act preserves the judiciary‘s role in determining the status of offenders and their likelihood to reoffend.
Posted by Marcia Oddi on June 28, 2011 02:04 PM
Posted to Ind. Sup.Ct. Decisions