Bennie Truth v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 7, 2018
• Docket: 49A04-1711-PC-2610
• 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 Sep 07 2018, 10:50 am

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

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Bennie Truth Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bennie Truth, September 7, 2018 Appellant-Petitioner, Court of Appeals Case No. 49A04-1711-PC-2610 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Cook Appellee-Respondent Crawford, Judge Trial Court Cause No. 49G09-1509-PC-32400

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-PC-2610 | September 7, 2018 Page 1 of 4 [1] Bennie Truth appeals the denial of his petition for post-conviction relief,

arguing that the post-conviction court erroneously determined that he did not

receive the ineffective assistance of trial and appellate counsel. Finding no

error, we affirm.

[2] On March 13, 1998, Truth was convicted of Class B felony rape. As a result, he

was required to register as a sex offender. In 2013, Truth was charged with

three Class D felony counts of failure to register as a sex offender. Following a

bench trial, the trial court found him guilty as charged but sentenced him on

only one count. Truth appealed, claiming insufficient evidence. This Court

affirmed. Truth v. State, No. 49A02-1405-CR-334 (Ind. Ct. App. Dec. 18,

2014).

[3] On September 22, 2015, Truth filed a petition for post-conviction relief, arguing

that he had received the ineffective assistance of trial and appellate counsel. On

August 14, 2017, the post-conviction court denied the petition. Truth now

appeals.

[4] Truth’s sole argument on appeal is that the post-conviction court should have

found that he received the ineffective assistance of trial and appellate counsel

based on the attorneys’ failure to argue that the application of the Indiana Sex

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-PC-2610 | September 7, 2018 Page 2 of 4 Offender Registration Act1 to him was an unconstitutional ex post facto

violation.

[5] Truth is incorrect. The Indiana Legislature passed the Sex Offender

Registration Act in 1994. Wallace v. State, 905 N.E.2d 371, 373 (Ind. 2009).

The 1994-96 versions of the Act required sex offenders to register for having

committed the crime of rape if the victim was under the age of eighteen years

old. In 1997, the General Assembly amended the Act to require registration by

offenders who committed the offense of rape regardless of the age of the victim.2

Truth was convicted of rape in 1998—after the applicable version of the Act was

passed.3 Laws constitute an ex post facto violation only if they are applied to

defendants who committed their offenses before the applicable statutes were

enacted. Id. at 377.

[6] In this case, therefore, there was no ex post facto violation. Consequently,

Truth’s attorneys were not ineffective for failing to raise the claim and the post-

1 Ind. Code ch. 11-8-8. 2 The record on appeal does not indicate the age of the victim of Truth’s rape. But we infer from the State’s citation to the 1997 amendment of the Sex Offender Registration Act that the victim was eighteen years of age or older. 3 Generally, the date that matters is the date on which the defendant committed the offense. But see Blakemore v. State, 925 N.E.2d 759, 763 (Ind. Ct. App. 2010) (focusing on date of conviction in finding an ex post facto violation). In this case, the record on appeal does not include that information. It is Truth’s burden to provide this Court with a complete record on appeal. Finke v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272 (Ind. Ct. App. 2006). Generally, when the appellant fails to provide us with a complete record, we decline to review his claims. Id. at 272-73. Here, we will nonetheless endeavor to review Truth’s claim, but must infer from his conviction date of 1998 that he committed the offense of rape after the relevant amendment was enacted in 1997.

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-PC-2610 | September 7, 2018 Page 3 of 4 conviction court did not err by denying Truth’s petition for post-conviction

relief.

[7] The judgment of the post-conviction court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-PC-2610 | September 7, 2018 Page 4 of 4