Donald R. Clark, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 29 2019, 6:38 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Donald R. Clark, III Curtis T. Hill, Jr. Pendleton, Indiana Attorney General Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donald R. Clark, III, August 29, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-MI-3097 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Respondent Mark Dudley, Judge Trial Court Cause No. 48C06-1810-MI-877

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Case Summary [1] Donald R. Clark III appeals the trial court’s denial of his petition to remove his

name from the sex-offender registry, arguing that the requirement that he

register for life as opposed to ten years constitutes ex post facto punishment.

We affirm the trial court.

Facts and Procedural History [2] In September 1997, Clark was charged with Class B felony rape and Class B

felony child molesting. See Cause No. 82C01-9709-CF-930. Thereafter, Clark

pled guilty to Class B felony rape. In March 1998, the trial court sentenced him

to six years in the Department of Correction. According to the Indiana Sex

Offender Registration Act (“the Act”) then in effect, Clark was required to

register as a sex offender for ten years upon his release from incarceration. See

Appellant’s App. Vol. II pp. 21-23, 43. Clark was released from incarceration

in March 2000. Thereafter, it appears that Clark registered as a sex offender. [3] In 2007, the Act was amended. See Lemmon v. Harris, 949 N.E.2d 803, 806-07

(Ind. 2011). According to one of the amendments, a defendant is considered a

sexually violent predator (SVP) by operation of law if the defendant commits a

qualifying offense (which includes rape) and is released from incarceration,

probation, or parole for the offense after June 30, 1994. See Ind. Code 35-38-1-

7.5(b)(1)(A). SVPs are required to register for life. See Ind. Code § 11-8-8-19(b).

In January 2009, shortly before Clark’s ten-year registration period was set to

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expire, the DOC notified him that he had to register for life. Appellant’s App.

Vol. II p. 44. [4] It’s unclear what happened in the following years, but in February 2016 Clark

was convicted of Level 3 felony robbery and sentenced to six years in the DOC.

See Cause No. 82C01-1511-F3-6919. According to the DOC’s Offender Search

database, Clark’s earliest release date for this offense is September 25, 2019. [5] In October 2018, while incarcerated for the robbery conviction, Clark filed a

pro se petition to remove his name from the sex-offender registry pursuant to

Indiana Code section 11-8-8-22, arguing that requiring him to register for life as

opposed to ten years constitutes ex post facto punishment. The State responded

that Clark’s petition was not ripe because he was incarcerated for robbery and

therefore was “not required to register as a sex offender at this time.”

Appellant’s App. Vol. II p. 34; see Ind. Code § 11-8-8-19(a) (“The registration

period is tolled during any period that the sex or violent offender is

incarcerated. The registration period does not restart if the offender is

convicted of a subsequent offense.”). The trial court denied Clark’s petition. A

couple months later, the DOC notified Clark that he would have to register for

“Life” as a “Sexually Violent Predator.” Appellant’s App. Vol. II p. 46. [6] Clark, pro se, now appeals.

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Discussion and Decision [7] Clark contends that the trial court erred in denying his petition to remove his

name from the sex-offender registry because requiring him to register for life—

when the requirement was only ten years when he committed the offense—

violates the Ex Post Facto Clause of the Indiana Constitution. The Indiana

Constitution provides that “[n]o ex post facto law . . . shall ever be

passed.” Ind. Const. art. 1, § 24. In general, the Ex Post Facto Clause forbids

laws imposing punishment for an act that was not otherwise punishable at the

time it was committed or imposing additional punishment for an act then

proscribed. Harris, 949 N.E.2d at 809. [8] The State responds that the trial court properly denied Clark’s petition because

it is not ripe, as Clark “is incarcerated and not required to register at this time.”

Appellee’s Br. p. 11. In the alternative, the State argues that the Indiana

Supreme Court’s decision in Harris “forecloses Clark’s ex post facto claim.” Id.

at 13. [9] Even assuming that Clark’s petition is ripe, we agree with the State that Clark is

not entitled to relief. In Harris, our Supreme Court held that the 2007

amendment creating the SVP-by-operation-of-law classification was not an ex

post facto law as applied to a sex offender who had committed his offense in

1997, even though the amendment increased his registration period from ten

years to life overnight. The Court reasoned that requiring the defendant to

register for life as an SVP by operation of law was not punitive because there is

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a statutory procedure that allows him to petition the court ten years after his

release from prison to determine whether he should still be considered an SVP.

Harris, 949 N.E.2d at 810-13; see Ind. Code § 35-38-1-7.5(g) (“A person who is a

sexually violent predator may petition the court to consider whether the person

should no longer be considered a sexually violent predator. The person may

file a petition under this subsection not earlier than ten (10) years after: (1) the

sentencing court or juvenile court makes its determination under subsection (e);

or (2) the person is released from incarceration or secure detention.”). [10] Although Harris is directly on point, Clark does not address it either in his

opening brief or in his reply brief. Like the defendant in Harris, Clark can

petition the trial court to determine whether he should still be considered an

SVP pursuant to Indiana Code section 35-38-1-7.5(g). Because Harris controls

this case, we affirm the trial court’s denial of Clark’s petition to remove his

name from the sex-offender registry.1 [11] Affirmed.

Riley, J., and Bradford, J., concur.

1 Although Clark does not address Harris, he does cite our Supreme Court’s decision in Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013) (holding that the retroactive imposition of a lifetime-registration period violated the Ex Post Facto Clause). But Gonzalez is different from this case, as the defendant in Gonzalez was not an SVP and had to register for life under a different statute. Id. at 319-20 (distinguishing the defendant in Gonzalez from the defendant in Harris). Here, Clark claims that he will have to register for life as an SVP. Accordingly, Harris, not Gonzalez, controls.

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