Allenn Peterson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2018
• Docket: 33A01-1708-MI-1773
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2018, 8:50 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Allenn Peterson Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Aaron T. Craft Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allenn Peterson, November 30, 2018 Appellant-Defendant, Court of Appeals Case No. 33A01-1708-MI-1773 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Kit C. Dean Crane, Appellee-Plaintiff. Judge Trial Court Cause No. 33C02-1702-MI-17

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 1 of 11 Statement of the Case [1] Allenn Peterson, pro se, appeals the trial court’s order granting the State’s Trial

Rule 12(B)(6) motion to dismiss Peterson’s petition, filed pursuant to the

Indiana Sex Offender Registration Act (“SORA”), in which he requested the

trial court to remove his designation as a sex offender. Peterson, however, had

previously filed a petition under SORA and had been granted relief by the trial

court when it had ordered that Peterson was not required to be designated as a

sex offender under SORA or to register on the online sex offender registry.

Concluding that Peterson’s petition failed to state a claim upon which relief

could be granted, we affirm the trial court’s order.

[2] We affirm.

Issue Whether the trial court abused its discretion by granting the State’s motion to dismiss Peterson’s petition to remove his designation as a sex offender.

Facts1 [3] We previously set out the facts of Peterson’s crimes and subsequent procedural

history in a recent memorandum decision as follows:

On March 11, 1981, Peterson murdered Robert Watkins and then raped and robbed Watkins’s mother when she arrived home

1 Contrary to Appellate Rule 50, Peterson has included in his Appellant’s Appendix some documents that where not part of the record below in this cause of action.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 2 of 11 later that evening. Peterson was subsequently convicted of murder, class A felony rape, and class B felony robbery. He was sentenced to forty-five years for murder, thirty-five years for rape, and thirty years for robbery. The sentences for murder and rape were ordered to be served consecutively. His convictions were upheld on direct appeal and post-conviction relief. See Peterson v. State, 453 N.E.2d 196 (Ind. 1983); Peterson v. State, 650 N.E.2d 339 (Ind. Ct. App. 1995).

Peterson v. State, No. 45A03-1408-CR-304, *1 (Ind. Ct. App. Mar. 18, 2015).

Peterson is currently incarcerated and serving his sentence on his rape

conviction. His earliest projected release date is April 8, 2020.

[4] In 1994, the legislature passed the SORA, which required defendants convicted

of certain sex crimes to register as “sex offender[s].” Wallace v. State, 905

N.E.2d 371, 375 (Ind. 2009) (internal quotation marks and citation omitted)

reh’g denied. SORA included registration and notification provisions and

initially applied to eight crimes. Id. Since that time, SORA has been amended

several times and “has expanded in both breadth and scope.” Id.

[5] Generally, SORA now requires that defendants who are convicted of certain

enumerated offenses, including rape and murder, to register as a “sex or violent

offender” and for their identity to appear on the Indiana Sex and Violent

Offender Registry (“the sex offender registry”), which is accessible to the public

via the Internet. See IND. CODE §§ 11-8-8-4.5, 11-8-8-5. Pursuant to INDIANA

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 3 of 11 CODE § 11-8-2-12.4(a), the Indiana Department of Correction (“DOC”) is

charged with maintaining the online sex offender registry.2

[6] In 2007, the legislature added INDIANA CODE § 11-8-8-22 to SORA. This

subsection set forth a general procedure for a person, who was required to

register as a sex or violent offender, to petition the trial court to either remove

the person’s designation as an offender or to allow the person to register under

less restrictive conditions. See P.L. 216-2007, § 30 (effective July 1, 2007); I.C. §

11-8-8-22(c).

[7] In 2009, in Wallace, our supreme court held that SORA—as applied to the

defendant who had committed his offense before SORA had been enacted—

violated the ex post facto provision of the Indiana Constitution “because it

impose[d] burdens that ha[d] the effect of adding punishment beyond that

which could have been imposed when his crime was committed.” Wallace, 905

N.E.2d at 384. Thereafter, in 2010, the legislature amended INDIANA CODE §

11-8-8-22, adding further provisions setting forth the appropriate procedure for

an offender to use when filing a petition to remove his SORA offender

designation. See P.L. 103-2010, § 2 (effective March 24, 2010). The

amendment also included an explicit provision that an offender could base his

petition on a claim that the registration requirements of SORA constituted ex

post facto punishment. See I.C. § 11-8-8-22(j).

2 The sex offender registry website was established, pursuant to INDIANA CODE § 36-2-13-5-5, in 2003.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 4 of 11 [8] In 2011, Peterson filed, pursuant to INDIANA CODE § 11-8-8-22 and Wallace, a

petition (“First SORA Petition) requesting the trial court to remove any

designation as a sex offender and to relieve him of the requirement to register as

a sex offender for his 1981 convictions. On August 12, 2011, the trial court

issued an order (“August 2011 Order”) granting Peterson’s request for relief on

his First SORA Petition. The trial court ordered that Peterson was not required

to register as a sex offender under SORA for his crimes committed prior to

1994. The trial court, however, specified that its order did not relieve Peterson

of any future obligation to register under requirements of the Indiana Parole

Board or under federal law.

[9] In 2013, the legislature again amended INDIANA CODE § 11-8-8-22. In relevant

part, it amended subsection (c)(1), which had previously provided that “[a]

person to whom this section applies may petition a court to . . . remove the

person’s designation as an offender[.]” The amendment provided that when an

offender petitioned the trial court to remove his designation as an offender, the

offender could also seek to have the trial court “order the department to remove

all information regarding the person from the public portal of the sex and

violent offender registry Internet web site established under IC § 36-2-13-5.5[.]”

See P.L. 214-2013, § 13 (effective July 1, 2013); I.C. § 11-8-8-22(c)(1).

[10] In March 2017, Peterson, pro se, filed with the trial court another petition to

remove the designation of sex offender (“Second SORA Petition). He

specifically stated that he was filing the petition pursuant to INDIANA CODE §

11-8-8-22(c)(1). Peterson had apparently learned that, due to his rape

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 5 of 11 conviction, he remained designated as a sex offender within the DOC for

purposes of its internal programs, such as the Sex Offender Management and

Monitoring (“SOMM”) program.3 In his petition, Peterson argued that the

DOC was violating the trial court’s August 2011 Order by continuing to

designate him as a sex offender, and he asserted that the trial court should find

this noncompliance to be a contempt of court. He referenced INDIANA CODE §

11-8-8-22(j) and Wallace in support of his argument that he could raise a claim

that the registration requirement constituted an ex post facto punishment in

violation of Article 1, § 24 of the Indiana Constitution, and he requested the

trial court to remove his designation as a sex offender.

[11] Thereafter, the State filed a motion to dismiss, arguing that, under Trial Rule

12(B)(6), Peterson had failed to state a claim upon which relief could be

granted. The State pointed out, and asked the trial court to take judicial notice,

that Peterson was not listed on the online sex offender registry. The State

asserted that Peterson’s request that his sex offender designation be removed

was a request that could not be granted because he had already been granted

relief in his First SORA Petition.

3 In Bleeke v. Lemmon, 6 N.E.3d 907, 940 (Ind. 2014), our Indiana Supreme Court discussed the SOMM Program, explained that it “is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control,” and held that “its requirements do not violate the Fifth Amendment’s privilege against self-incrimination.”

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 6 of 11 [12] In Peterson’s response, he somewhat changed the focus of his argument away

from registration under the sex offender registry to potential future implications

involving his designation as a sex offender within the DOC. He argued that his

designation as a sex offender “would” subject him to the “threat of future

prosecution and punishment” and require him to participate in the DOC’s

SOMM program. (State’s App. Vol. 2 at 17). He asserted that the SOMM

program’s requirements “would violate [his] Fifth Amendment right” and

“would subject [him] to additional punishment if forced to confess to the

offenses not documented or prosecuted.” (State’s App. Vol. 2 at 17).

[13] In July 2017, the trial court issued an order, granting the State’s motion to

dismiss Peterson’s Second SORA Petition. The trial court’s order provided, in

relevant part:

[Peterson] does not appear on the Indiana Sex and Violent Offender Registry. Therefore, he cannot be granted removal from the Registry or relief from any registration obligations and the State of Indiana is not imposing any ex post facto punishment on him. [Peterson] has failed to state a claim upon which relief may be granted.

(State’s App. Vol. 2 at 6). Peterson now appeals.

Decision [14] Peterson appeals the trial court’s order granting the State’s Trial Rule 12(B)(6)

motion to dismiss Peterson’s Second SORA petition to remove his designation

as a sex offender.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 7 of 11 The standard of review for the dismissal of a claim granted pursuant to Trial Rule 12(B)(6) is de novo, requiring no deference to the trial court’s decision. A motion to dismiss based on Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted tests the sufficiency of a claim, not the facts supporting it. Viewing the complaint in the light most favorable to the non- moving party, we must determine whether the complaint states any facts upon which the trial court could have granted relief. In determining whether any facts will support the claim, we may look only to the complaint and the reasonable inferences to be drawn therefrom, and we may not rely upon any other evidence in the record. If a complaint states a set of facts which, even if true, would not support the relief requested therein, we will affirm the dismissal. Furthermore, we may affirm the trial court’s grant of a motion to dismiss if it is sustainable upon any theory.

Weiss v. Indiana Parole Bd., 838 N.E.2d 1048, 1050 (Ind. Ct. App. 2005) (internal

citations omitted), trans. denied.

[15] At the outset, we note that Peterson has chosen to proceed pro se. It is well

settled that pro se litigants are held to the same legal standards as licensed

attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.

denied. Thus, pro se litigants are bound to follow the established rules of

procedure and must be prepared to accept the consequences of their failure to

do so. Id. “We will not become a party’s advocate, nor will we address

arguments that are inappropriate, improperly expressed, or too poorly

developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct.

App. 2005), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 8 of 11 [16] Peterson argues that the trial court erred by dismissing his Second SORA

Petition, in which he sought relief based on INDIANA CODE § 11-8-8-22(c)(1).

This particular subsection provides, in relevant part, that a person may petition

a trial court to “remove the person’s designation as an offender and order the

department to remove all information regarding the person from the public

portal of the sex and violent offender registry Internet web site established

under IC § 36-2-13-5.5[.]” I.C. § 11-8-8-22(c)(1).

[17] On appeal, Peterson acknowledges that he has already received the relief set

forth in INDIANA CODE § 11-8-8-22(c)(1) when the trial court issued its August

2011 Order from his First SORA Petition. Specifically, he acknowledges that

he is not required to register as a sex offender on the sex offender registry and

that the DOC had removed all information about him from the online sex

offender registry.

[18] Peterson, however, contends that INDIANA CODE § 11-8-8-22(c)(1) provided a

mechanism for him to petition the trial court to order the DOC to remove its

internal designation of him as a sex offender and to challenge the future

requirements that may be required with his participation in the SOMM

program. He also contends that the DOC’s sex offender designation could

subject him to “a threat of future prosecution and punishment” and that his

required participation in the SOMM program will constitute ex post facto

punishment. (Peterson’s Br. 8).

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 9 of 11 [19] Aside from the facts that Peterson’s arguments about the SOMM program are

not contained on the face of his Second SORA Petition and his arguments

about potential future events do not appear ripe for review, 4 Peterson cannot

use the SORA statutory procedure in INDIANA CODE § 11-8-8-22 as a means to

challenge the DOC’s internal designation or the SOMM program. INDIANA

CODE § 11-8-8-22 sets forth the procedure for an offender to challenge his status

under SORA and to seek removal of all information from the online sex

offender registry.5 See Lockhart v. State, 38 N.E.3d 215, 217 (Ind. Ct. App.

2015). See also Gonzalez v. State, 980 N.E.2d 312, 321 (Ind. 2013) (explaining

that “Indiana Code Section 11-8-8-22 may be utilized only when there is an

ameliorative change in federal or state law applicable to an offender’s prior

conduct, Ind. Code § 11-8-8-22(b), (g), or when an offender files an ex post

facto claim, Ind. Code § 11-8-8-22(j)”). INDIANA CODE § 11-8-8-22 does not

provide a means to challenge the DOC’s internal procedures or its programs

utilized as part of a defendant’s future parole.6

4 “Ripeness relates to the degree to which the defined issues in a case are based on actual facts[,] rather than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.” Dixon v. Indiana Dep’t of Correction, 56 N.E.3d 47, 52 (Ind. Ct. App. 2016) (internal quotation marks and citation omitted).

5 An offender can also use INDIANA CODE § 11-8-8-22 when seeking to “register under less restrictive conditions.” I.C. § 11-8-8-22(c)(2). 6 Moreover, we have already held that participation in the SOMM program does not violate the ex post facto clause. See Patrick v. Butts, 12 N.E.3d 270, 271-72 (Ind. Ct. App. 2014) (rejecting a defendant’s contention that Wallace applied to the defendant’s participation in the SOMM program and explaining that “the Parole Board’s authority to impose conditions on parole [such as the SOMM program] is not limited by the date on which the program was created, but rather is limited by the program’s ability to reintegrate the parolee into society”).

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 10 of 11 [20] Here, at the time Peterson filed his Second SORA Petition, in which he sought

relief based on INDIANA CODE § 11-8-8-22(c)(1), he was not required to register

as a sex offender on the sex offender registry and he was not listed on the online

sex offender registry. Because Peterson’s Second SORA petition failed to state

a claim upon which relief could be granted, we affirm the trial court’s order

granting the State’s motion to dismiss Peterson’s petition. See, e.g., Lockhart, 38

N.E.3d at 218 (holding that a defendant—who had filed, pursuant to INDIANA

CODE § 11-8-8-22, a petition to be removed from the sex offender registry and

whose name did not appear on the registry at the time he had filed the

petition—had failed to state a claim for which relief could be granted and

affirming the trial court’s order dismissing the petition under Trial Rule

12(B)(6)).

[21] Affirmed.

Vaidik, C.J., and Barnes, Sr.J., concur.

Court of Appeals of Indiana | Memorandum Decision 33A01-1708-MI-1773 | November 30, 2018 Page 11 of 11