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Ammons v. State

Court of Appeals of Indiana

June 17, 2015

Kevin A. Ammons, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Appeal from the Lake Superior Court. The Honorable Diane Ross Boswell, Judge. Cause No. 45G03-8811-CF-217.

ATTORNEY FOR APPELLANT: Kristin A. Mulholland, LeBlanc & Mulholland, LLC, Crown Point, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Kenneth E. Biggins, Deputy Attorney General, Indianapolis, Indiana.

Riley, Judge, Bailey, J. concurs, Barnes, J. dissents with separate opinion.

OPINION

Riley, Judge.

STATEMENT OF THE CASE

[¶1] Appellant-Defendant, Kevin A. Ammons (Ammons), appeals the denial of his petition to remove his designation as a sexually violent predator (SVP) and the accompanying requirement that he register as a sex offender for life.

[¶2] We affirm.

ISSUE

[¶3] Ammons raises one issue on appeal which we restate as: Whether the trial court erred in denying his petition to remove his SVP designation.

FACTS AND PROCEDURAL HISTORY

[¶4] The relevant facts are not in dispute. On November 10, 1988, Ammons was charged with one Count of child molesting, a Class A felony. After a trial by jury in November 1989, Ammons was convicted and was sentenced to thirty-five years in the Department of Correction (DOC) with 371 days of credit. In November 2006, Ammons was released to parole, and soon thereafter, he registered as sex offender with the Lake County Sheriff's Department, in Indiana. Ammons satisfactorily completed his parole in 2007. In March 2009, Ammons moved to Iowa. As an Iowa resident, Ammons was required to register as sex offender for ten years from the date he completed his parole. In 2011, the State of Iowa charged Ammons for failing to register as a sex offender. Ammons pled guilty and he served eleven months of supervised probation. Ammons continued to reside in Iowa until September 2013 when he relocated to Indiana.

[¶5] On February 19, 2014, the Lake County Sheriff's Department notified Ammons in writing that he was required to register as a SVP. On February 27, 2014, Ammons filed a pro se verified petition for removal from the Registry pursuant to Indiana Code Section 11-8-8-22,[1] claiming that the Indiana Sex Offender Registration Act (the Act) as applied to him violated the ex post facto clause of the Indiana Constitution because he had committed the sex offense before the Act became effective. The Lake County Prosecutors' office[2] responded to Ammons' petition stating in part that " there are no legal grounds on which to object." (Appellant's App. p. 21). The trial court granted Ammons' petition on March 24, 2014. On April 16, 2014, the State filed a motion to correct error asking the trial court to set aside its Order and set a hearing date. On May 6, 2014, the trial court vacated its initial Order and set an evidentiary hearing date for May 28, 2014. At the hearing, the trial court took judicial notice of Ammons' trial transcript, heard arguments from both sides, and after both parties had filed their briefs, it took the matter under advisement. On October

[¶6] Ammons now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Indiana Sex Offender Registration Act

[¶7] We first determine the applicable statutory framework before turning to Ammons' contention on appeal.

[¶8] As way of background, in the wake of a convicted sex offender molesting and murdering ten-year-old Zachary Snider, the Indiana General Assembly passed the Act in March 2, 1994. Ind. P.L. No. 11-1994, § 7 (eff. July 1, 1994) (codified at Ind.Code § § 5-2-12-1 to 5-2-12-13) (current version at I.C. § § 11-8-8-1 to 11-8-8-22). " Originally the duty to register was prospective only, and terminated when the offender was no longer on probation or discharged from parole." Wallace v. State, 905 N.E.2d 371, 375 (Ind. 2009) (citing I.C. § 5-2-12-13 (1994)), reh'g denied. As originally drafted, an individual who committed one of eight offenses--including child molesting where the victim was less than eighteen years old--was required to register with law enforcement agencies for a set period of time. I.C. § § 5-2-12-4; -5 (1994).

[¶9] Since its inception in 1994, the Act has been amended several times, and actively expanded " in both breadth and scope." Wallace, 905 N.E.2d at 375. In Hollen v. State, 994 N.E.2d 1166, 1175 (Ind.Ct.App. 2013), we reviewed the Act's framework as follows:

In 1995 the duty to register expanded to ten years after the date the offender was released from prison, placed on parole, or placed on probation, whichever occurred last. In 1998, the legislature defined a " sexually violent predator" as " an individual who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any of the offenses described in section 4 of this chapter." Ind. Code § 5-2-12-4.5 (1998); P.L. No. 56-1998, § 7 (eff. July 1, 1998). That same year, the legislature amended Ind. Code § 35-38-1-7.5(c) to provide that " [a]t the sentencing hearing, the court shall determine whether the person is a [SVP]. 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." See Pub. L. No. 56-1988, § 17 (eff. July 1, 1998). In 2003, the legislature amended Ind. Code § 5-2-12-13 to provide that " [a]n offender who is found to be a [SVP] by a court under [Ind. Code] § 35-38-1-7.5(b) is required to register for life." P. L. No. 222-2003, § 1 (eff. July 1, 2003).[3] In 2007, the legislature amended Ind. Code § 35-38-1-7.5(b) to provide that " a person is a [SVP] ...

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