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Seales v. State

Court of Appeals of Indiana

February 28, 2014

KENNETH SEALES, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT. The Honorable Jerome Frese, Judge. Cause No. 71D03-1107-MC-156.

ATTORNEY FOR APPELLANT: MARIELENA DUERRING, South Bend, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.

MAY, Judge. VAIDIK, C.J., and RILEY, J., concur.

OPINION

Page 822

MAY, Judge.

Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm.

FACTS AND PROCEDURAL HISTORY

Seales pled guilty in October 1998 to Class B felony child molesting[1] for an offense committed in 1996, and the court imposed a twenty-year sentence, with ten years suspended and six years on probation. When Seales committed the offense, the Indiana Sex Offender Registration Act required an offender to register for ten years from the date he was placed on probation. Ind. Code § 5-2-12-5 (1996).

In 2011, Seales brought a Verified Motion to Determine Sex Offender Registration Requirements and Remove Defendant from Registry. In that motion, Seales noted that, at the time of his conviction, the statute required him to register as a sex offender for ten years, but in 2006 the law was changed to require lifetime registration. That change, he asserted, was an

Page 823

impermissible ex post facto law. He asked the trial court to direct the State to remove him from the sex offender registry and to issue an order that he was not required to register. The trial court determined Seales must continue to register as a sexually violent predator for the rest of his life pursuant to Ind. Code § 11-8-8-19, denied his motion to be removed from the registry, and subsequently denied his motion to correct error.

DISCUSSION AND DECISION

In 1998 the Legislature created the status of " sexually violent predator," which is a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit certain sex offenses. Ind. Code § 35-38-1-7.5. In 2007 it amended the statute to provide a person in Seales' position, i.e ., one who commits Class B felony child molesting and was released from incarceration, secure detention, probation, or parole for the offense after June 30, 1994, is a sexually violent predator " by operation of law." Id.; Lemmon v. Harris, 949 N.E.2d 803, 807 (Ind. 2011). Seales was therefore a sexually violent predator by operation of law because he was convicted of Class B felony child ...


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