Joshua L. Waller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 3, 2020
• Docket: 19A-CR-2615
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 03 2020, 8:53 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Curtis T. Hill, Jr. Nashville, Indiana Attorney General of Indiana

Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Joshua L. Waller, April 3, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2615 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Mary Wertz, Judge Appellee-Plaintiff. Trial Court Cause No. 07C01-1611-F4-477

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 1 of 5 Case Summary [1] On April 20, 2019, Joshua Waller pled guilty to Level 5 felony attempted child

solicitation and Level 6 felony dissemination of matter harmful to minors. At

sentencing, the trial court accepted Waller’s guilty plea and sentenced him in

accordance with its terms. The trial court also found that given Waller’s prior

unrelated conviction for Level 4 child molesting, Waller was a sexually violent

predator (“SVP”). Waller challenges the SVP classification on appeal. We

reverse and remand for further proceedings consistent with this decision.

Facts and Procedural History [2] On May 1, 2016, Waller engaged in a social-media communication with

eleven-year-old K.H. During this communication, Waller, believing that K.H.

was a child under the age of eighteen, sent K.H. a picture of his penis. On May

13, 2016, Waller communicated online with a person who he believed to be a

thirteen-year-old girl. During this communication, Waller expressed that he

“wanted to engage in sexual intercourse” with the girl. Tr. p. 19. Although the

person with whom he was communicating turned out to be an adult police

officer, Waller believed that he was asking a thirteen-year-old girl to engage in

sexual intercourse.

[3] On November 2, 2016, the State charged Waller with Level 5 felony attempted

child solicitation, Level 6 felony dissemination of matter harmful to minors,

and two counts of Class A misdemeanor inappropriate communication with a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 2 of 5 child. While awaiting trial in the instant case, on May 15, 2017, Waller was

convicted of Level 4 felony child molesting in Henry County (“the Henry

County conviction”). In that case, Waller was sentenced to a term of ten years

with two years suspended to probation. He was also ordered to register with

the State’s sex offender registry for a period of ten years upon his release from

incarceration.

[4] In April of 2019, Waller entered into a plea agreement under the terms of which

he agreed to plead guilty to the Level 5 felony attempted child solicitation and

Level 6 felony dissemination of matter harmful to minors. In exchange, the

State agreed to dismiss the remaining charges, that the sentences for the

convictions should run concurrently, and that the executed portion of his

sentence should be capped at three years. On October 16, 2019, the trial court

accepted Waller’s guilty plea and sentenced him to an aggregate three-year

term. Noting the Henry County conviction, the trial court also found that

Waller was an SVP.

Discussion and Decision [5] Waller contends that the trial court erred in finding him to be an SVP. In

challenging his classification as an SVP, Waller claims that “[a]t the time of the

commission of the offenses in this case, he did not have a previous unrelated

conviction for a sex offense for which he was required to register as a sex or

violent offender.” Appellant’s Br. p. 6. Specifically, he argues that although he

had committed the acts leading to the Henry County conviction prior to

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 3 of 5 committing the underlying offenses, he had not yet been convicted of child

molesting in Henry County when he committed the underlying offenses.

Waller therefore claims that the trial court erred by finding him to be an SVP.

[6] Indiana Code section 35-38-1-7.5(b)(2) provides: “(b) A person who … (2)

commits a sex offense (as defined in IC 11-8-8-5.2) while having a previous

unrelated conviction for a sex offense for which the person is required to register

as a sex or violent offender under IC 11-8-8 … is a sexually violent predator.”

(Emphasis added). The statutory sequence included in this statute is that an

individual commits a sex offense while having a previous unrelated conviction

for a sex offense. Thus, a plain reading of the statute indicates that proper

sequencing requires that the individual must have been convicted of the

unrelated sex offense prior to committing the acts at issue in the instant case.

[7] This reading is consistent with the Indiana Supreme Court’s prior decision

regarding proper sequencing in habitual-offender determinations. In Flint v.

State, 750 N.E.2d 340, 341 (Ind. 2001), the Indiana Supreme Court provided

that failure to prove the proper sequencing requires that the habitual offender

determination be vacated. The Court also outlined the proper sequencing for

habitual offender determinations as requiring the commission of the second

felony to be subsequent to the sentencing for the first, and the sentencing for the

second felony to have preceded the commission of the felony for which the

enhanced sentence is being sought. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 4 of 5 [8] Reading the SVP statute in a manner consistent with the Indiana Supreme

Court’s decision in Flint, we are convinced that Waller could only be found to

be an SVP under Indiana Code section 35-38-1-7.5(b)(2) if he committed the sex

offense at issue after being convicted of an unrelated sex offense. Because

Waller committed the sex offense at issue in the instant case before he was

convicted of a sex offense in the Henry County case, we therefore conclude that

the trial court erred in finding Waller to be an SVP under Indiana Code section

35-38-1-7.5(b)(2).

[9] However, while the trial court erred in finding Waller to be an SVP under

Indiana Code section 35-38-1-7.5(b)(2), we note that in its Appellee’s Brief, the

State has argued that one remedy would be to remand the matter to the trial

court for resentencing, specifically for the trial court to consider whether Waller

could be found to be an SVP under another subsection of Indiana Code section

35-38-1-7.5. Under these circumstances, we remand the matter to the trial court

with instructions to conduct a hearing during which the trial court should

resentence Waller, considering whether he qualifies as an SVP under any other

subsection of Indiana Code section 35-38-1-7.5.

[10] The judgment of the trial court is reversed and remanded for further

proceedings consistent with this decision.

Baker, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2615 | April 3, 2020 Page 5 of 5