Jonathan L. Slone v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2015
• Docket: 57A04-1503-CR-123
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 31 2015, 9:36 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jonathan L. Slone Gregory F. Zoeller Wolcottville, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jonathan L. Slone, December 31, 2015 Appellant-Defendant, Court of Appeals Case No. 57A04-1503-CR-123 v. Appeal from the Noble Superior Court State of Indiana, The Honorable G. David Laur, Appellee-Plaintiff Judge Trial Court Cause No. 57D01-0208-FA-26

Mathias, Judge.

[1] Jonathan Slone (“Slone”), a convicted sex offender, appeals the Noble Superior

Court’s denial of his petition to remove his sexually violent predator (“SVP”)

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 1 of 8 designation. Slone argues that his designation as a sexually violent predator and

the requirement that he register as sex offender for his lifetime violate his due

process rights and the ex post facto provision of the Indiana Constitution.

[2] We affirm.

Facts and Procedural History

[3] On August 14, 2002, the State charged Slone with Class A felony child

molesting. Slone was convicted after a jury trial, and on October 15, 2003,

Slone was sentenced to thirty years in the Department of Correction with five

years suspended to probation. Slone appealed his conviction and sentence, and

this court remanded to the trial court for re-sentencing in 2004. Slone v. State,

No. 57A04-0312-CR-666 (Ind. Ct. App. Aug. 18, 2004). The trial court did not

substantively change Slone’s sentence, and he then appealed the second

sentencing order. On May 20, 2005, this court issued a memorandum decision

affirming the trial court’s sentencing decision. Slone v. State, No. 57A03-0412-

CR-559 (Ind. Ct. App. May 20, 2005). Shortly thereafter, Slone filed a petition

for post-conviction relief, which he later withdrew.

[4] In 2007, under Indiana Code section 35-38-1-7.5 (b)(C), Slone was classified as

a sexually violent predator by operation of law. He then filed several motions

for modification of sentence and another petition for post-conviction relief,

which the trial court denied. Again in 2013 and 2014, Slone filed several more

motions for modification of sentence, which the court also denied.

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 2 of 8 [5] On January 14, 2015, Slone was released from the Indiana Department of

Correction, and he subsequently filed a pro se petition to remove his sexually

violent predator status on January 22, 2015. He also submitted a request for

dismissal from sex offender counseling classes and permission for family

visitation, which the trial court denied. Slone then filed a motion to correct

error, which the trial court denied. Slone now appeals.

Due Process

[6] First, Slone argues that under Indiana Code section 35-38-1-7.5, the trial court

did not designate him as a sexually violent predator at his sentencing hearing

and that doing so later violated his due process rights. Slone cites to Indiana

Code section 35-38-1-7.5 (d) which provides that, “[a]t the sentencing hearing,

the court shall indicate on the record whether the person has been convicted of

an offense that makes the person a sexually violent predator under subsection

(b).”

[7] However, effective May 10, 2007, the statute was amended and now mandates

that an individual is a sexually violent predator “by operation of law” if the

person committed a section 35-38-1-7.5(b) offense and he was released from

incarceration, secure detention, or probation for the offense after June 30, 1994.

Although Slone committed the child molesting offense in 2002 before the

Amendment was effective, child molesting is classified as a section 35-38-1-

7.5(b) offense, and he was released from the Department of Correction on

January 14, 2015.

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 3 of 8 [8] Slone is a sexually violent predator by operation of law due to his 2003 Class A

felony child molesting conviction and is required to register for life. Lemmon v.

Harris, 949 N.E.2d 803, 806 (Ind. 2011). Slone’s argument that he is improperly

designated a sexually violent predator because the trial court did not designate

him as such at his sentencing hearing has no merit. See Lemmon, 949 N.E.2d at

808-09 (stating “under the 2007 Amendment, the Legislature had changed the

Act from requiring the court to determine SVP status at the sentencing hearing

to the ‘automatic designation of SVP status.’” “At the time Harris was released

from prison in December 2007, the sentencing court was no longer required to

have ‘determined’ a person’s SVP status”). Therefore, Slone’s due process rights

were not violated.

Ex Post Facto

[9] Slone also contends that his designation as a sexually violent predator and the

requirement that he register as a sex offender for his lifetime violate the ex post

facto clause of the Indiana Constitution. Specifically, Slone argues that the

application of INSORA’s 2007 Amendment requiring sexually violent

predators to register for life is a retroactive punishment. The Indiana

Constitution provides that “[n]o ex post facto law. . . shall ever be passed.” Ind.

Const. art. 1, § 24. The ex post facto clause prohibits the Legislature from

enacting “any law which imposes a punishment for an act which was not

punishable at the time it was committed; or imposes additional punishment to

that then prescribed.” Jensen v. State, 905 N.E.2d 384, 389 (Ind. 2009). “The

underlying purpose of the Ex Post Facto Clause is to give effect to the

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 4 of 8 fundamental principle that persons have a right to a fair warning of that

conduct which will give rise to criminal penalties.” Wallace v. State, 905 N.E.2d

371, 377 (Ind. 2009) (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.

2006)).

[10] When we consider ex post facto claims, we assess the alleged violation using

the factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and

adopted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009).

See also Gonzales v. State, 980 N.E.2d 312, 317 (Ind. 2013) (stating “[i]n

evaluating an ex post facto claim under the Indiana Constitution we apply what

is commonly known as the ‘intent-effects test’”). The intent-effects test directs

us to determine whether the Legislature intended the Act to be a regulatory

scheme that is civil and non-punitive. Wallace, 905 N.E.2d at 379. The factors

include:

[1] [w]hether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Id.

[11] When we apply the intent-effects test here, we look to Lemmon v. Harris, 949

N.E.2d 803 (Ind. 2011), for guidance. In that case, Harris was convicted of Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 5 of 8 several counts of child molesting in 1999 before lifetime registration was

required under INSORA. However, on the date Harris committed his offenses,

sex offenders were required to register for ten years. Id. at 807. Prior to his

releases in 2007 and 2008, the Department of Correction informed Harris that

he was required to register as a sexually violent predator. Id. at 805. Like Slone,

Harris argued that the sexually violent predator classification was a violation of

the ex post facto clause. Id. After weighing the seven factors, our supreme court

concluded:

1. [T]he Act imposes significant affirmative obligations because Harris must register, re-register, disclose public and private information, and keep that information updated.

2. The registration requirements of the Act have a dissemination component that resembles shaming as punishment for the act.

3. Harris’s qualifying offense is one of the few included in the Act for which there is no scienter requirement.

4. The Act deters criminal conduct and promotes community condemnation of offenders which are traditional aims of punishment but these effects apply the same to an offender who is required to register for ten years as to one who is required to register for life. Harris is not in a different position than before the 2007 Amendment, so this factor should lean toward treating the effects of the acts as non- punitive when applied to Harris.

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 6 of 8 5. The Act applies only to criminal behavior, which suggests that its effects are punitive. However, Harris was already required to register because his behavior was criminal before the 2007 Amendment.

6. [T]he Act advances a legitimate regulatory purpose because it promotes public safety by protecting the public from repeat sex offenders.

7. The Act’s requirements are not excessive in relation to its legitimate, regulatory purpose because Harris was already subject to the registration requirements based on when he was convicted and the 2007 Amendment also provides a process by which Harris may ask to no longer be considered a SVP.

Id. at 811-13.

[12] Although the first three factors leaned toward treating the Act as punitive, the

remaining four factors leaned in favor of treating the Act as non-punitive when

applied to Harris. Id. at 813. See also Jensen v. State, 905 N.E.2d 384, 394 (Ind.

2009) (concluding that the effects of the act were non-punitive when applied to

Jensen because the “broad and sweeping” disclosure requirements were in place

and applied to Jensen at the time of his guilty plea in 2000; therefore, requiring

him to register under the 2006 Amendment to the Act does not violate

Indiana’s constitutional prohibition against ex post facto laws).

[13] Here, several of the intent-effects test factors weigh in favor of treating

INSORA as non-punitive when applied to Slone. When Slone committed child

molesting in 2002 he was required to register as a sex offender for ten years.

Court of Appeals of Indiana | Memorandum Decision 57A04-1503-CR-123| December 31, 2015 Page 7 of 8 Therefore, he was required to register prior to the 2007 INSORA Amendment.

See Lemmon, 949 N.E.2d at 812-813. Our courts have consistently held that

INSORA advances a legitimate regulatory purpose to protect the public from

repeat sex offenders. And importantly, like the 2006 amendment, the 2007

amendment provides that in ten years from the date of Slone’s release from

prison, the time frame he was originally required to register, he may petition the

court to consider whether he should no longer be considered a sexually violent

predator. Ind. Code § 35-38-1-7.5(g) (Supp. 2007). We therefore conclude that

Slone’s designation as a sexually violent predator and the accompanying

registration requirements do not violate Indiana’s constitutional ex post facto

prohibition.

Conclusion

[14] For all of these reasons, we affirm the trial court’s denial of Slone’s petition to

remove the designation of his status as a sexually violent predator.

[15] Affirmed.

Baker, J., and Bailey, J., concur.

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