Peele v. State

173 N.E.3d 1051 (Table)

Stephan PEELE, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent

Court of Appeals Case No. 21A-CR-726

Court of Appeals of Indiana.

FILED August 4, 2021

Attorney for Appellant: Lisa M. Johnson, Brownsburg, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, David A. Arthur, Senior Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[1] Stephan Peele¹ appeals the denial of his petition for removal from the sex offender registry, claiming that he was retroactively subjected to a lifetime registration requirement in violation of Indiana's prohibition against ex post facto laws. We affirm.

Facts and Procedural History

[2] Peele was born in February 1964. In the late 1980s, he was charged in Shelby County with six counts of child molesting, two as class B felonies, three as class C felonies, and one as a class D felony. Although the record from Shelby County could not be found either on microfilm or in paper form, it appears that Peele was convicted on all counts. See Appellant's Supp. App. Vol. 2 at 2 (Peele's verified petition for removal from the sex offender registry averring same). In April 1989, Peele was sentenced to twelve years, seven of which were executed.

[3] In 2002, the State charged Peele in Marion County with two counts: class B felony sexual misconduct with a minor "[o]n or between September 4, 2000 and November 22, 2001" and class B felony sexual misconduct with a minor "[o]n or between November 23, 2001 and December 9, 2001[.]" Appellant's Amended App. Vol. 2 at 21. The underlying allegations reflect an ongoing sexual relationship between Peele and a fourteen- to fifteen-year-old girl who lived across the hall from him. On March 20, 2003, in exchange for the dismissal of both class B felony counts, Peele pled guilty by plea agreement to an amended count of class C felony sexual misconduct with a minor "[o]n or between September 4, 2000 and November 22, 2001[.]" Id. at 35. Peele's plea agreement stated in pertinent part, "Pursuant to IC 5-2-12, upon conviction or upon release from any incarceration, Defendant shall register as a convicted sex offender with local law enforcement ... and shall comply with all requirements of said statute[.]" Id. at 32. Peele was sentenced to eight years, with five years executed in the Department of Correction (DOC) and the remainder suspended to probation.

[4] Effective July 1, 2001, our legislature amended the Indiana sex offender registration statutes, collectively referred to as the Sex Offender Registration Act (SORA), to require lifetime registration for certain sex and violent offenders, who previously had been subject to registration for ten years. In August 2004, Peele was released from incarceration and placed in a community transition program. His name was added to the sex offender registry on June 10, 2005. In July 2007, the DOC informed Peele that he was required to register as a sex offender for life.

[5] In February 2019, Peele filed a petition for removal from the sex offender registry pursuant to Indiana Code Section 11-8-8-22(c), claiming that he had completed ten years of registration and that the allegedly retroactive application of the lifetime registration requirement would violate Indiana's Ex Post Facto Clause. The State filed a motion to dismiss for lack of subject matter jurisdiction, which the trial court granted. Peele filed a motion for clarification and a motion to correct error, both of which were denied. He filed a notice of appeal, and another panel of this Court reversed, determining that the trial court erred in dismissing Peele's petition for lack of subject matter jurisdiction. Peele v. State , 141 N.E.3d 838, 844 (Ind. Ct. App. 2020), trans. denied. The panel held that the trial court had subject matter jurisdiction over his petition. The panel did not issue a ruling on the merits of his ex post facto claim but remanded for that purpose. Id.

[6] In April 2021, the trial court issued an order denying Peele's petition on the merits. Peele now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[7] In 1994, our legislature adopted "Zachary's Law," the first iteration of SORA. Ind. Code Ch. 5-2-12 (repealed and recodified at Ind. Code Ch. 11-8-8). Before the 2001 amendments to SORA were enacted, sex and violent offenders were required to register for ten years following their release from a penal facility, community transition program, or community corrections program, or from their placement on parole or probation. Ind. Code § 5-2-12-13 (repealed and recodified as Ind. Code § 11-8-8-19 ). In 2001, the General Assembly amended the statute to include a lifetime registration requirement for certain sex or violent offenders. The lifetime registration requirement became effective July 1, 2001, and reads, in pertinent part:

A sex and violent offender who is convicted of at least two (2) unrelated sex and violent offenses that were committed: (1) when the person was at least eighteen (18) years of age; and (2) against victims who were less than eighteen (18) years of age at the time of the crime is required to register for life.

Ind. Code § 5-2-12-13(e) (2001) (now Ind. Code § 11-8-8-19(e) (the SORA amendment)).

[8] We generally apply an abuse of discretion standard when reviewing the trial court's ruling on a petition to remove an offender from lifetime registration under SORA. Cundiff v. State , 66 N.E.3d 956, 958 (Ind. Ct. App. 2016). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and reasonable inferences supporting the petition for relief. Id. As the party seeking to be removed from the sexual offender registry, Peele bore the burden of proving his grounds for relief by a preponderance of the evidence. Ind. Code § 11-8-8-22(h).

[9] Peele maintains that applying the SORA amendment to him would amount to retroactive application in violation of Indiana's Ex Post Facto Clause. Article 1, Section 24 of the Indiana Constitution reads, in relevant part: "No ex post facto law ... shall ever be passed." The Ex Post Facto Clause forbids laws that impose punishment for an act not otherwise punishable at the time it was committed or impose additional punishment for an act already proscribed at the time. Harlan v. State , 971 N.E.2d 163, 167 (Ind. Ct. App. 2012). "The policy underlying the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties." McVey v. State , 56 N.E.3d 674, 678 (Ind. Ct. App. 2016) (quoting Gonzalez v. State , 980 N.E.2d 312, 316 (Ind. 2013) ).

[10] Peele maintains that there is no evidence that he committed the Marion County sex offense on or after the effective date of the SORA amendment, July 1, 2001, and therefore it cannot be applied to him retroactively. As previously mentioned, the charging information for the amended count of class C felony sexual misconduct with a minor alleges that the offense occurred "[o]n or between September 4, 2000 and November 22, 2001[.]" Appellant's Amended App. Vol. 2 at 35 (emphasis added). These dates straddle the effective date of the SORA amendment. The trial court found that the date range listed in the information did not provide enough specificity as to when Peele committed the offense but ultimately concluded that no ex post facto violation occurred.

[11] Peele's case certainly is not the first case involving a charging information that lists dates straddling the effective date of SORA or its amendments. For example, in Harlan , the petitioner sought relief from registration as a sexual violent predator (SVP). 971 N.E.2d at 169. He admitted during his guilty plea hearing that he had committed one of his sex crimes "between [a date that preceded the SVP statute] through and including [a date after the effective date of the statute.]" Id. (emphasis added). As a result, the Harlan court rejected the petitioner's ex post facto claim, specifically holding that he had admitted to having committed one of his sex crimes after SORA had taken effect and therefore suffered no ex post facto violation. Id.

[12] In McVey , 56 N.E.3d at 676, the defendant unsuccessfully petitioned to have his name removed from the sex offender registry. Like Peele, McVey was charged based on events that occurred during a range that...