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Cowan v. Carter

Court of Appeals of Indiana

July 31, 2019

Reid Cowan, Appellant-Petitioner,
v.
Robert E. Carter, Appellee-Respondent.

          Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-1810-MI-954

          ATTORNEY FOR APPELLANT Bryan L. Ciyou Ciyou & Dixon, P.C. Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] Reid Cowan appeals the trial court's dismissal of his petition for writ of habeas corpus that alleged the Indiana Department of Correction ("DOC") is unlawfully subjecting him to lifetime parole. Concluding that Cowan is subject to the lifetime parole requirement, we affirm.

         Facts and Procedural History

         [¶2] The facts, primarily taken from Cowan's petition, are that in April 2006, Cowan committed the offense of possessing child pornography in Michigan. In June 2007, he was convicted pursuant to a plea agreement for the charge of child sexually abusive activity[1] and in August 2007, he was sentenced to eleven months, all suspended, and a five-year probationary period. He was also required to register in Michigan as a sex offender for twenty-five years. See Appellant's Amended Appendix, Volume 2 at 35. When Cowan later moved to Indiana, his probation was transferred here.

         [¶3] In November 2007, Cowan had sexual contact with a fourteen-year-old in Indiana. As a result of this contact, Cowan was charged in December 2007 with three counts of sexual misconduct with a minor, all Class B felonies, and one count of criminal confinement. In January 2008, he was convicted pursuant to a plea agreement of two counts of sexual misconduct with a minor and sentenced to ten years in the DOC.

         [¶4] Cowan completed his Indiana sentence in November 2017 and was subsequently notified by the DOC that he was classified as a sexually violent predator ("SVP") due to his two sex crime convictions. This status subjected him to lifetime parole.

         [¶5] In October 2018, Cowan filed a Petition for Writ of Habeas Co[r]pus objecting to his classification as an SVP and the imposition of lifetime parole because the "law enabling lifetime parole, and the amended definition of an SVP became effective July 1, 2006, three months after [he] committed the Michigan offence [sic] on April 1, 2006." Id. at 12.[2] Cowan therefore argued the application of these laws to him violate the ex post facto clauses of the state and federal constitutions. See id. at 13 (citing U.S. Const. art. I, § 10 and Ind. Const. art. 1, § 24).

         [¶6] The DOC filed a motion to dismiss Cowan's petition for failure to state a claim upon which relief could be granted, inasmuch as there is no ex post facto violation in part because Cowan "is an SVP by operation of law because he committed his Indiana crime while required to register as a sex offender because of his Michigan crime." Id. at 27 (citing Ind. Code § 11-8-8-5(b)(1)). The trial court dismissed Cowan's petition. Cowan now appeals.

         Discussion ...


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