Harlan v. State

971 N.E.2d 163

Bobby A. HARLAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 84A01–1110–CR–474.

Court of Appeals of Indiana.

July 19, 2012.

William S. Frankel, IV, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Senior Judge.

Bobby A. Harlan appeals the sentence imposed upon his two convictions of child molesting, both Class B felonies. Ind.Code § 35–42–4–3 (1981). Harlan also appeals the trial court's order that he register as a sexually violent predator (SVP). We affirm.

The relevant facts are not in dispute. Harlan and his wife frequently babysat sisters L.G. and A.C. from 1986 through 1994. Once, when Harlan was babysitting L.G. and no one else was present, Harlan watched a pornographic movie with L.G. and induced her to put her mouth on his penis. In addition, he put his penis in L.G.'s vagina on more than ten occasions. These incidents began when L.G. was four or five and ended when she was eleven or twelve. L.G. viewed Harlan as a father figure, and he told her not to tell anyone about his molestations because she could get in trouble and he could go to jail.

In 2009, A.C. told the police about Harlan's molestations of L.G. A.C. also told the officers that Harlan had induced her to engage in sexual conduct when she was a child, but the State ultimately chose not to file charges in relation to any acts Harlan committed involving A.C. A.C. agreed to talk with Harlan while wearing a “wire,” which consisted of a hidden microphone and a recorder. Sentencing Tr. p. 9.¹ On May 18, 2009, A.C. went to Harlan's home while wearing the wire. The recorder malfunctioned, but the microphone worked properly, and the police listened in on A.C. and Harlan's conversation. During the conversation, Harlan admitted to molesting L.G. by having her kiss his penis on one occasion and by inserting his penis into L.G.'s vagina on another occasion. Later, an officer interviewed Harlan, and after the officer told Harlan that he had overheard Harlan's conversation with A.C., Harlan again admitted to having L.G. place her mouth on his penis and to placing his penis in L.G.'s vagina.

The State charged Harlan with one count of child molesting as a Class A felony. Subsequently, the State amended the information to reduce the count to a Class B felony and to add a second count of child molesting as a Class B felony. The parties executed a plea agreement, pursuant to which Harlan agreed to plead guilty to the two counts of child molesting as Class B felonies. The parties further agreed that the executed portion of Harlan's sentence would not exceed fourteen years. At the guilty plea hearing, the following discussion occurred:

STATE: Between January One (1), Nineteen–Eighty–Six (1986), through and including December Thirty–First (31st), Nineteen–Ninety–Two (1992), in Vigo County, State of Indiana, Bobby A. Harlan was a person who, with a child under twelve (12) years of age, to-wit, [L.G.], who was between the ages of four (4) and ten (10), performed or submitted to sexual intercourse or deviate sexual conduct with the said [L.G.], in violation of the Indiana Code.

COURT: And you admit that Mr. Harlan?

HARLAN: Yes.

STATE: Count Two (2), between January First (1st), Nineteen–Ninety–Two (1992), through and including December Thirty–First (31st), Nineteen–Ninety–Four (1994), in Vigo County, State of Indiana, Bobby A. Harlan was a person who, with a child under fourteen years of age, to-wit, [L.G.], who was between the ages of ten (10) and eleven (11), performed or submitted to sexual intercourse or deviate sexual conduct with the said [L.G.], in violation of the Indiana Code.

COURT: And you admit that Mr. Harlan?

HARLAN: Yes.

Guilty Plea Hearing Tr. pp. 13–14. The trial court sentenced Harlan to ten years on each count, to be served concurrently. The trial court further ordered Harlan to register as a SVP. This appeal followed.

Harlan raises three issues, which we restate as:

I. Whether the trial court's order requiring Harlan to register as a SVP violates the ex post facto clause of the Indiana Constitution.

II. Whether the trial court abused its discretion in the course of identifying aggravating and mitigating factors at sentencing.

III. Whether Harlan's sentence is manifestly unreasonable.

I. INDIANA'S EX POST FACTO CLAUSE

Harlan argues that the trial court should not have required him to register as a SVP because the statutes defining sex offenders and requiring them to register had not yet been enacted when he committed his crimes. He concludes that the SVP requirement, as applied to him, violates Article 1, Section 24 of the Indiana Constitution, also known as the ex post facto clause. ²

The ex post facto clause provides, in relevant part: “No ex post facto law ... shall ever be passed.” 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. Lemmon v. Harris, 949 N.E.2d 803, 809 (Ind.2011). When a party presents a claim under the ex post facto clause, our inquiry focuses on whether a legislative change alters the definition of criminal conduct or increases a penalty by which a crime is punishable, not on whether a legislative change produces some sort of disadvantage. Simmons v. State, 962 N.E.2d 86, 90 (Ind.Ct.App.2011). The party challenging the constitutionality of a statute bears the burden of proof. Vickery v. State, 932 N.E.2d 678, 680 (Ind.Ct.App.2010).

Our Supreme Court's decision in Lemmon is pertinent to this case. In Lemmon, Harris pleaded guilty in 1999 to child molesting as a Class B felony for acts that he committed in 1997. Prior to Harris' release on parole, the Indiana Department of Correction informed him that he was required to register as a SVP. Harris conceded that he was required to register as a sex offender for ten years pursuant to the laws in effect when he committed his crimes. However, he argued that SVP requirements did not apply to him because the SVP status was not created until 1998, and therefore those requirements, as applied to him, violated Indiana's ex post facto clause.

Our Supreme Court determined that the “intent-effects” test applied to Harris' claim. 949 N.E.2d at 810. Under that test, the Court first decided whether the General Assembly intended for SVP status and the accompanying registration requirements to constitute a punishment, or whether the legislature intended to establisha nonpunitive regulatory scheme. The Court noted that Harris had not provided any evidence of a punitive intent on the part of the General Assembly with respect to the SVP statute. In the lack of evidence to the contrary, the Court presumed that the legislature's intent was civil and regulatory rather than punitive.

Next, the Court was required to determine whether, even though the legislature did not intend to establish a punitive regime, the effects of the SVP regulatory scheme, as applied to Harris, were nonetheless punitive and constituted an ex post facto punishment. Seven factors are relevant to the determination:

1. whether the sanction involves an affirmative disability or restraint;

2. whether it has historically been regarded as punishment;

3. whether it comes into play only on a finding of scienter;

4. whether its operation will promote the traditional aims of punishment—retribution and deterrence;

5. whether the behavior to which it applies is already a crime;

6. whether an alternative purpose to which it may rationally be connected is assignable for it; and

7. whether it appears excessive in relation to the alternative purpose assigned.

Id. Applying these factors to Harris' case, our Supreme Court concluded: the SVP requirements impose affirmative obligations upon Harris; the registration requirements include a shaming component that has historically been regarded as punishment; the registration requirement for Harris' crime of child molesting as a Class B felony does not include a scienter requirement; application of the SVP registration requirements promotes retribution and deterrence, but Harris was in no worse of a position than if he were only required to register for ten years under the sex offender statutes in effect when he committed his crimes; the SVP requirement applies to criminal behavior, but in this regard Harris was in the same position as if he was required to register for ten years under the previous sex offender laws; the SVP designation and registration requirements promote a legitimate, alternative purpose; and the SVP designation and registration requirements are not excessive in relation to the legitimate regulatory purpose because: (a) Harris was already subject to registration requirements in any event; and (b) the SVP statute provides a process by which Harris may ask to be no longer considered a SVP. Weighing these factors, our Supreme Court determined that designating Harris as a SVP and subjecting him to the associated registration requirements did not violate the ex post facto clause.

Here, Harlan argues that Lemmon is distinguishable from his case. Harlan notes that Harris conceded in Lemmon that he was subject to the sex offender registration requirements that were in effect when he committed his crimes, but Harris argued that he was not subject to the SVP requirements, which were enacted after he committed his crimes. By contrast, Harlan contends that he committed his offenses before the General Assembly enacted any sex offender registration requirements, so he has no obligation to register at all, much less as a SVP. We disagree. The statutes collectively referred to as the Indiana Sex Offender Registry Act first took effect on July 1, 1994. See 1994 Ind. Acts 11, § 7; see also Wallace...