Jones v. State

885 N.E.2d 1286, 2008 Ind. LEXIS 405, 2008 WL 2058244
Indiana Supreme Court·Decided May 15, 2008·No. No. 61S01-0711-CR-560·Published·Cited by 47 cases

Opinion

DICKSON, Justice.

The defendant, Alan C. Jones, appeals from the trial court’s order revoking his probation and suspended sentence, ordering him to serve the full sentence imposed, finding him to be a Sexually Violent Predator (SVP), and ordering him to register as an SVP for his lifetime. The Court of Appeals affirmed. Jones v. State, 873 N.E.2d 725 (Ind.Ct.App.2007). We granted transfer and now hold that the language of the SVP statute does not authorize a trial court to initiate an SVP determination for the first time during a probation revocation proceeding.

Early in 2002, when he was twenty-two years old, the defendant had a three-month sexual relationship with a thirteen-year old girl. As a result, the defendant was charged with four counts of Child Molestation,1 as class A, B, and C felonies. Pursuant to a written plea agreement, the State agreed to dismiss three counts, and the defendant entered a plea of guilty to one count as a class B felony with a prescribed sentence of twenty years and ten years suspended to probation subject to specific agreed terms plus “whatever [additional] terms the Court deems appropriate.” Appellant’s App’x at 43. These additional terms, titled “Parke County' Special Probation Conditions for Adult Sex Offenders,” were expressly acknowledged and incorporated by reference in the plea agreement. Id. One of those additional terms required the defendant to “register with local law enforcement authorities as a sex offender within seven (7) days of being released to probation supervision in accordance with IC 5-2-12-5.” Appellant’s App’x at 52. After receiving credit time, the defendant was released to probation on January 6, 2006. Several months later, as part of his court-mandated probation conditions, he took a polygraph examination at a treatment facility, wherein he admitted several violations of his probation, including having sexual contact with the victim of the crime he was on probation for, viewing pornography, as well as drinking alcohol, and consuming illegal drugs. On January 23, 2007, the trial court found that the [1288] defendant had violated the terms of his probation and initiated proceedings to determine whether the defendant was an SVP. At the conclusion of an evidentiary-hearing on March 1, 2007, the trial court ordered reinstatement of the ten year suspended portion of the defendant’s original sentence, found that “the defendant is a serious violent predator as described in I.C. 35-38-1-7.5,” and ordered the defendant “to register, with local law enforcement pursuant to I.C. 11-8-8,” which requires that a sex offender who is a Sexually Violent Predator must register on the Sex Offender Registry for life. Appellant’s App’x at 71.

In this direct appeal from the trial court’s order at the conclusion of the probation revocation proceeding, the defendant makes two claims: (1) that the trial court improperly determined him to be an SVP when “sentencing him for a probation violation,” and (2) that imposing the entire balance of his ten year sentence was “an abuse of discretion and inappropriate.” Appellant’s Br. at 1.

Sexually Violent Predator Determination

The defendant contends that the trial court erred when, as part of the probation revocation proceeding, it undertook to determine that he was an SVP and ordered him to lifetime registration as an SVP. He argues that the statutory language authorizes an SVP evaluation and determination to be made at the time of the initial sentence, but not at a subsequent probation revocation proceeding. Appellant’s App’x at 3.

On the date of the defendant’s original sentencing, August 12, 2002, the trial court ordered that, as a condition of future probation, the defendant must register “as a sex offender ... in accordance with IC 5-2-12-5.” Appellant’s App’x at 52, specifically “Parke County Special Probation Conditions for Adult Sex Offenders.” When it originally sentenced the defendant, the trial court did not find the defendant to be a “sexually violent predator.” At that time, the statute designated by the trial court provided that an offender’s duty to register would expire ten years after the defendant is placed' on probation, subject to two exceptions not applicable in this case.2 Had the defendant been found to be an SVP when he was sentenced in 2002, he would have been required to “register for an indefinite period unless a court, assisted by a board of experts, finds that [he] is no longer a sexually violent predator.” Ind.Code § 5-2-12-13(b) (2001). By the time of the defendant’s probation revocation proceedings, however, the statute had been amended to require a Sex Offender who is an SVP “to register for life.” Ind.Code § ll-8-8-19(b) (2006).

On January 23, 2007, when the trial court found that the defendant had violated the terms and conditions of his probation, it declared that “per I.C. 35-38-1-7.5 [the court] must determine whether the [defendant is a ‘sexually violent predator’ ... at or prior to sentencing.” Appellant’s App’x at 67. The following portions of the statute cited by the trial court are central to this appeal:

(b) This section applies whenever a court sentences a person for a sex offense listed in IC 5-2-12^(a)(l> through IC 5-2-12-4(a)(l0) for which the person is required to register with a local law enforcement agency under IC 5-2-12-5.
(c) At the sentencing hearing, the court shall determine whether the per[1289] son is a sexually violent predator. Before making a determination under this section, the court shall consult with a board of experts consisting of two (2) board certified psychologists or psychiatrists who have expertise in criminal behavioral disorders.

Ind.Code § 35-38-l-7.5(b) and (c) (2001) (emphasis added).3 Focusing on the words “sentences” and “sentencing,” the defendant urges that this statute authorizes an SVP determination only at the time of the original sentencing and not during a probation revocation proceeding. The State argues that the “plain meaning of ‘whenever’ applies to a sentence imposed at a probation revocation,” and that this is consistent with legislative intent and sound public policy. Appellee’s Br. at 7.

We are not persuaded that the word “whenever” alters the clear and plain language limiting the subsection’s application to initial sentencing proceedings. In addition to the unambiguous text of the statute, we note that Section 7.5 is located within Chapter 1, which is titled “Entry of Judgment and Sentencing,” and is not located in Chapter 2, “Probation.” Furthermore, the action taken by a trial court in a probation revocation proceeding is not a “sentencing.” The court is merely determining whether there has been a violation of probation and, if so, the extent to which the court’s conditional suspension of the original sentence should be modified and/or whether additional conditions or terms of probation are appropriate.

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Jones v. State, 885 N.E.2d 1286, 2008 Ind. LEXIS 405, 2008 WL 2058244 (Ind. 2008).

885 N.E.2d 1286 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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