Opinion
Court of Appeals Case No. 21A-CR-2493
08-23-2022
Robert Eugene SMITH, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
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
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 offender and Level 6 felony failure to register as a sex or violent offender. The parties raise three issues on appeal, which we revise and restate as:
Ind. Code § 11-8-8-17(b) (2020).
Ind. Code § 11-8-8-17(a) (2020).
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 battery and Class A felony domestic battery 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 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).
Ind. Code § 35-42-4-8 (1998).
Ind. Code § 35-42-2-1.3 (2003).
[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, 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. 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.
Ind. Code § 11-8-8-17 (2007).
Ind. Code § 11-8-8-17(b) (2014).
[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: (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. 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 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.
Given Smith is pursuing an interlocutory appeal following the denial of a motion to dismiss and not an appeal following a criminal trial, the factual record before us is limited, and thus, we are unsure whether Smith was informed of this change in his registration status, and if so, the time and manner of the notification. It is also not clear from the record before us whether Smith registered as a sex offender after his reclassification, and if so, when and where he registered.
[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 enhancement 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:
Ind. Code § 35-50-2-8 (2017).
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.[ ]
Indiana Code section 35-34-1-6 provides:
An indictment or information is defective when:
(1) it does not substantially conform to the requirements of section 2(a) of this chapter;
(2) the allegations demonstrate the court does not have jurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutional or otherwise invalid.
* * * * *
(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 ground specified in subdivision (a)(6), (a)(7), (a)(8), (a)(9), (a)(10), or (a)(11) of this section may be made or renewed at any time before or during trial. A motion to dismiss based upon lack of jurisdiction over the subject matter may be made at any time.
[9] The State contends Smith's motion was required to be made no later than twenty days before the omnibus date because it challenges the charging information as defective, and therefore, the motion filed on August 11, 2021, was untimely. Smith, on the other hand, argues his motion was timely because the basis for his motion was not limited to subdivision (a)(1), and the primary basis for his motion was that dismissal was warranted as a matter of law. We agree that the question of whether Smith had a duty to register as a sex offender in September 2020 is a question of law, and therefore, his motion to dismiss was not untimely because it was made before trial pursuant to subdivision (a)(11). See Tyson v. State , 51 N.E.3d 88, 90 (Ind. 2016) (noting in case revolving around the constitutionality of applying Indiana's registry requirements to the defendant that "the arguments presented are questions of law").
The omnibus date was set as November 19, 2020.
2. Smith's Sex Offender Registration Requirement
2.1 Lifetime Obligation
[10] Smith asserts the trial court erred in denying his motion to dismiss because he was not under an obligation to register at the time of the alleged offenses. Generally, "[w]e review a ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances" before it. State v. Katz , 179 N.E.3d 431, 440 (Ind. 2022) (internal quotation marks omitted). "A trial court also abuses its discretion when it misinterprets the law." Gutenstein v. State , 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans. denied. "However, when, as here, the denial rests on the trial court's interpretation of a statute, we review the judgment de novo as a question of law." B.S. v. State , 966 N.E.2d 619, 625 (Ind. Ct. App. 2012), trans. denied , overruled on other grounds by Fry v. State , 990 N.E.2d 429, 451 (Ind. 2013).
[11] To determine a sex offender's registration obligation, we start by looking to the law in place at the time of the offense. See Dixon v. Ind. Dept. of Correction , 56 N.E.3d 47, 52 (Ind. Ct. App. 2016) (holding inmate was properly classified as a sex offender by the DOC because the law in effect at the time he committed the offense of kidnapping a minor required the offender to register as a sex offender). At the time of Smith's offense, sexual battery was listed as one of the "sex and violent offenses" requiring registration, Ind. Code § 5-2-12-4(a)(10) (2003), and the Indiana Code provided:
An offender who is convicted of at least one (1) sex and violent offense in which the offender:
*****
(2) used force or the threat of force against the victim or a member of the victim's family;
*****
is required to register for life.
Ind. Code § 5-2-12-13 (2003). Thus, the law at the time Smith committed the offense of sexual battery put the public on notice that those convicted of sexual battery were required to register as sex offenders for life if the offense included the use of force. Nonetheless, Smith still chose to commit sexual battery using force, and as a result, he incurred a lifetime registration obligation. See Dixon , 56 N.E.3d at 52 ("the relevant statutes in effect at the time of Dixon's offense provided notice of the consequences of a conviction for kidnapping when the victim is less than eighteen years old").
[12] Effective July 1, 2007, the General Assembly passed significant legislation overhauling the sex offender registration statutes. In the process, the General Assembly amended Indiana Code section 11-8-8-19 to provide:
A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter in which the sex offender:
*****
(2) used force or the threat of force against the victim or a member of the victim's family, unless the offense is sexual battery as a Class D felony ;
*****
is required to register for life.
(emphasis added). Therefore, a person who committed the same crime as Smith after July 1, 2007, was required to register as a sex offender for only ten years.
[13] "The general rule in Indiana is that ‘[s]tatutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.’ " Johnson v. State , 36 N.E.3d 1130, 1134 (Ind. Ct. App. 2015) (quoting State v. Pelley , 828 N.E.2d 915, 919 (Ind. 2005) ), trans. denied. An exception to this general rule applies when the statutes are remedial or procedural in nature. Id. "One line of remedial statutes [is] those enacted to cure a defect or mischief in the prior law," N.G. v. State , 148 N.E.3d 971, 973 (Ind. 2020), and Smith maintains the 2007 amendment excluding persons convicted of Class D felony sexual battery from a lifetime registration obligation was intended to correct "what can only likely be described as a drafting oversight on the part of the Legislature." (App. Vol. II at 80.)
[14] However, while "statutes and rules that are procedural or remedial may be applied retroactively, they are not required to be. Even for procedural or remedial statutes, ‘retroactive application is the exception, and such laws are normally to be applied prospectively absent strong and compelling reasons.’ " Johnson , 36 N.E.3d at 1134 (emphases in original) (internal citation omitted) (quoting Hurst v. State , 890 N.E.2d 88, 94 (Ind. Ct. App. 2008), trans. denied ). "Indeed, our job is to construe a remedial statute in a way that effectuates the evident purpose for which it was enacted. And when that purpose is served by retroactivity, strong and compelling reasons exist." N.G. , 148 N.E.3d at 973-74 (internal citation and quotation marks omitted).
[15] "The best evidence" of the General Assembly's intent "is a statute's text." Adams v. State , 960 N.E.2d 793, 798 (Ind. 2012). Our first step in interpreting a statute is "to decide whether the Legislature has spoken clearly and unambiguously on the point in question. When a statute is clear and unambiguous, we must apply the plain and ordinary meaning of the language." Id. (internal citation omitted). The legislature may expressly state that a statute should apply retroactively. For example, the Indiana Trust Code provides that, subject to certain exceptions, "an amendment to the rules of law contained in this article applies to all trusts created prior to the effective date of the applicable amendment[.]" Ind. Code § 30-4-1-4(b) (2012). Yet, the 2007 amendment to Indiana Code section 11-8-8-19 contained no explicit provision that the statute should apply retroactively.
[16] Thus, we must resort to the rules of statutory construction to divine whether the legislature intended for the amendment to be applied retroactively. See Schafer v. Sellersburg Town Council , 714 N.E.2d 212, 216 (Ind. Ct. App. 1999) ("When the meaning of a statute is at issue, we follow several rules of statutory construction."), trans. denied. We presume the legislature intentionally employed the language it used in the statute and "is aware of existing statutes in the same area." Id. at 217. "Moreover, statutes relating to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious result." Id. We also presume the General Assembly does not intend unreasonable or absurd results. Id. at 218. In Chesnut v. Roof , we held a statute that changed the definition of "nonparty" for purposes of assessing fault in an automobile accident applied prospectively only. 665 N.E.2d 7, 10 (Ind. Ct. App. 1996). We reasoned that if we were to apply the amended definition retroactively all other portions of the same chapter enacted at the same time would also have to apply retroactively. Id. That could not have been the General Assembly's intent because to do so would have affected substantive rights and led to absurd results. Id.
[17] Like in Chesnut , retroactive application of the 2007 amendment to Indiana Code section 11-8-8-19 would lead to absurd and unreasonable results when we look at the amendment in context with other statutes dealing with the same subject matter passed by the legislature at the same time. Along with the 2007 amendment to Indiana Code section 11-8-8-19, and effective on the same date as that amendment, the General Assembly enacted a statute that allowed a sex offender to petition for a change in registration status if
due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
(1) would not be required to register under this chapter; or
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
Ind. Code § 11-8-8-22 (2007). The statute then went on to explain that a court could grant the petition, if after a hearing, the court found:
This statute has since been amended twice but the substance of those amendments is not of consequence here. See Ind. Code § 11-8-8-22 (2010) & Ind. Code § 11-8-8-22 (2013).
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
Id. The court, however, still retained discretion to deny a petition even after making the required findings. Id. Thus, the General Assembly provided a mechanism for offenders like Smith to seek removal or modification of their registration obligation—even though Smith chose not to avail himself of this procedure. It seems absurd to us that the General Assembly would intend its 2007 amendment to Indiana Code section 11-8-8-19 to have an automatic retroactive application when, at the same time: (1) the legislature enacted a provision allowing offenders to petition the court for a change in their registration obligation based upon contemporaneous or subsequent changes made in the law, and (2) that provision gave trial courts discretion to deny such petition even if the petitioner established the required factual findings. Therefore, we hold the General Assembly intended its 2007 act exempting those convicted of Class D felony sexual battery from a lifetime registration obligation to be given prospective application only. See Brown v. State , 947 N.E.2d 486, 492 (Ind. Ct. App. 2011) (holding amended credit time statute was not meant to apply retroactively because applying it retroactively would lead to unreasonable and absurd results), trans. denied.
2.2 Constitutional Challenges
[18] Notwithstanding the prospective application of the 2007 amendments, Smith contends requiring him to register for life violates his rights under Article I, Section 23 of the Indiana Constitution, which provides: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." We evaluate whether a statute passes muster under this provision of the Indiana Constitution by employing a two-part test. Minton v. State , 802 N.E.2d 929, 935 (Ind. Ct. App. 2004), trans. denied. "First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics that distinguish the unequally treated classes, and, second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated." Id.
[19] However, Smith is not being unequally treated in comparison with a similarly situated class. To the extent Smith is being treated differently from other sex offenders, it is the direct result of his own choices. In Schaadt v. State , the defendant argued his sentence violated the Indiana Constitution's Privileges and Immunities Clause because the maximum sentence for his crime following the General Assembly's 2014 criminal code revision would be less than the sentence the trial court imposed. 30 N.E.3d 1, 2-3 (Ind. Ct. App. 2015), trans. denied. We nonetheless rejected this argument because the criminal code revisions were not intended to apply retroactively. Id. at 3. We explained:
Our courts have consistently held that a change in penal statutes which applies only to those who commit their crimes after its effective date does not violate one's equal protection rights. This is so because the time of a crime is selected as an act of free will by the offender. The offender, not the State, chooses which statute applies.
Id. (internal quotation marks and citations omitted). Likewise, Smith's challenge under Article I, Section 23 of the Indiana Constitution fails because he chose to commit sexual battery at a time when the crime resulted in a lifetime registration obligation. He also decided not to petition the trial court for removal from the sex offender registry pursuant to Indiana Code section 11-8-8-22. While offenders who chose to commit sexual battery after the 2007 amendments to the sex offender registry statutes went into effect or who petitioned the court for removal from the sex offender registry may have lesser registration requirements than Smith, Smith is not similarly situated to those offenders. See Swopshire v. State , 177 N.E.3d 98, 106 (Ind. Ct. App. 2021) (holding retroactive application to defendant of amended limitations period regarding charge of sexual misconduct with a minor did not violate the Indiana Constitution's Privileges and Immunities Clause), trans. denied.
[20] Smith also purports to bring a challenge under Article I, Section 12 of the Indiana Constitution, which provides: "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." However, this provision of the Indiana Constitution is not applicable to the case at bar. Smith's registration obligation follows directly from his criminal conviction, and thus, he was afforded due process before the obligation was imposed upon him. See Wallace v. State , 905 N.E.2d 371, 382 (Ind. 2009) ("In sum, it is the determination of guilt of a sex offense, not merely the fact of the conduct and potential for recidivism, that triggers the registration requirement."), reh'g denied.
2.3 Sergeant Pfifer's 2018 Memorandum
[21] Finally, Smith contends Sergeant Pfifer's memorandum notifying Smith his registration obligation ended on June 25, 2018, effectively removed Smith from the Indiana sex offender registry. He maintains:
[I]n 2018, when the Johnson County Sheriff deputy updated Smith's registration expiration date, changed his status to "expired" and "unpublished" and notified him he was no longer required to register in the State of Indiana, he did so as an agent of the Department of Correction and as an agent of the State. As such, Smith was no longer required to register in the State of Indiana by state action through the Johnson County Sheriff.
(Appellant's Br. at 19) (internal citation omitted). Smith also asserts "[t]he DOC did not provide Smith with notice that he was required to register again after June 25, 2018, and he had no hearings or opportunity for due process prior to being reregistered." (Appellant's Reply Br. at 7.)
[22] However, we reject Smith's reasoning for three reasons. First, a sex offender's registration obligation is determined by statute. In Nichols v. State , the defendant pled guilty to three counts of child molesting involving two victims. 947 N.E.2d 1011, 1014 (Ind. Ct. App. 2011), reh'g denied. In the trial court's sentencing order, the trial court stated Nichols would be required to register as a sex offender for ten years. Id. Three months later, the DOC sent a letter to the trial court explaining Nichols was required to register as a sex offender for life and notifying the court of its intention to classify Nichols as a sex offender with a lifetime registration requirement. Id. Nichols filed a motion asking the trial court to order DOC to classify Nichols as a ten-year registrant, but the trial court denied Nichols's motion. Id. at 1015. We held Nichols was required to register as a sex offender for life and explained:
Placement on the Registry is mandatory, and the Act affords neither the trial
court nor the DOC any discretion in the matter of the registration requirements.... Whether the reporting period is ten years or for a lifetime is instead a consequence of the operation of the Act itself. Whether an individual has violated a reporting obligation is a matter ultimately determined in a full criminal proceeding after the State charges an offender with failure to register under the Act.
Id. at 1017. Consequently, the length of a sex offender's registration period "is determined by the statute itself—not by the plea agreement, not by the trial court, and not—contrary to the State's argument in its brief—by the DOC." Id. Likewise in the case at bar, the law imposed a lifetime registration obligation on Smith, and neither the Johnson County Sheriff nor the DOC is empowered to remove this obligation.
[23] Second, as a matter of public policy, if we were to accept Smith's position that a letter from a deputy sheriff saying a sex offender is no longer required to register removes the offender's legal obligation to register, then the State's interest in protecting the public from sex offenders could be stymied by an incompetent bureaucrat's misunderstanding of the law. That cannot be so. See , e.g. , City of Seymour v. Onyx Paving Co., Inc. , 541 N.E.2d 951, 958 (Ind. Ct. App. 1989) (holding city was immune from liability pursuant to the Tort Claims Act even though building inspector erroneously told company that construction of an asphalt batch plant was a permitted use and city subsequently had to issue a stop work order), reh'g denied , trans. denied.
[24] Lastly, we note a motion to dismiss a charging information as a matter of law is an inappropriate forum for adjudicating factual questions. See State v. Sturman , 56 N.E.3d 1187, 1196 (Ind. Ct. App. 2016) ("A motion to dismiss is not a proper vehicle for raising ‘[q]uestions of fact to be decided at trial or facts constituting a defense.’ ") (quoting Delagrange v. State , 951 N.E.2d 593, 594 (Ind. Ct. App. 2011), trans. denied. ). If Smith was never notified of the DOC's reclassification of his registration obligation, a subsequent criminal prosecution for failure to register would likely implicate Smith's basic due process rights. See , e.g. , Quarles v. State , 763 N.E.2d 1020, 1022 (Ind. Ct. App. 2002) (explaining that to obtain a conviction for operating a vehicle while driving privileges were suspended, "the State need prove what the statutes explicitly provide, (1) the act of driving, and (2) a license suspension ..., plus the mens rea we have inferred: (3) that the defendant knew or should have known [of the suspension]") (internal quotation marks omitted). However, the factual record before us is not sufficient for us to opine on that question. The law imposed a lifetime registration requirement on Smith at the time the State alleges he failed to register. Therefore, we affirm the trial court's denial of Smith's motion to dismiss. See B.S. , 966 N.E.2d at 629 (affirming denial of motion to dismiss charging information because Indiana's murder and feticide statutes encompassed mother killing thirty-three-week-old fetus by ingesting poison).
Conclusion
[25] Smith's motion to dismiss was timely even though it was filed months after the omnibus date because Smith's motion challenged whether he could be charged with the offenses alleged in the information as a matter of law. However, even though the motion was timely, Smith was under a lifetime obligation to register as a sex offender at the time of the alleged offenses. The 2007 amendment to Indiana Code section 11-8-8-19 did not retroactively apply to Smith, and Smith is not similarly situated to sex offenders who committed their crimes under a different statutory regime than he did. Moreover, Smith's lifetime registration obligation follows from the Indiana Code, and a letter from the Johnson County Sheriff does not remove that obligation. Therefore, we affirm the trial court's denial of Smith's motion to dismiss the charges against him.
[26] Affirmed.
Riley, J., and Tavitas, J., concur.