Spencer v. State

153 N.E.3d 289

Shawn SPENCER, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 20A-MI-636

Court of Appeals of Indiana.

Filed August 3, 2020

Rehearing Denied November 6, 2020

Attorney for Appellant: Michael C. Keating, Law Offices of Steven K. Deig, LLC, Evansville, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, David A. Arthur, Senior Deputy Attorney General, Aaron T. Craft, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Shawn Spencer ("Spencer") filed a petition in Vanderburgh Circuit Court asking the court to remove his designation as a sexually violent predator ("SVP"), which the trial court denied. Spencer appeals and presents one issue for our review, which we restate as whether Spencer is an SVP based on his two 1996 convictions in Florida for lewd acts upon a child.

[2] We reverse and remand.

Facts and Procedural History

[3] The facts underlying this case appear to be mostly undisputed. In November 1995, Spencer, who was eighteen years old at the time, had sexual intercourse with a fifteen-year-old girl. As a result of this incident, on July 10, 1996, the State of Florida charged Spencer with committing a lewd act upon a child. Specifically, the charging information alleged that Spencer:

did, in violation of Florida Statute 800.04(3), commit an act defined as sexual battery on [redacted], a child under the age of sixteen years, and in furtherance thereof [Spencer] did with his penis penetrate or have union with the vagina of [redacted].

Ex. Vol., Joint Ex. 1, p. 10.¹

[4] On May 7, 1997, the State of Florida charged Spencer in another cause with a different count of committing a lewd act on another child. The charging information in this cause² alleged that Spencer:

did, in violation of Florida Statute 800.04(1), handle or fondle [redacted] a child under the age of sixteen (16), in a lewd, lascivious or indecent manner, and in furtherance thereof [Spencer] did handle or fondle the vaginal area of [redacted].

Id. at 25. The police report in this case indicates that Spencer put his hands inside the pants of a ten- or eleven-year-old girl³ and fondled her vagina.

[5] On June 2, 1997, Spencer pleaded guilty to the above two counts. The Florida trial court sentenced him to four years of "youthful offender treatment" followed by two years of probation on the first count and to ten years of probation on the second count, to be served concurrently. Id. at 27. As a result of his convictions, Spencer was required to register in Florida as a sex offender, apparently for the rest of his life. See Tr. p. 8.

[6] In March 2016, Spencer moved to Indiana. As required by Indiana law, Spencer registered as a sex offender in Indiana. At some point in late 2018, the Vanderburgh County Sheriff's office telephoned Spencer and informed him that he was being designated as an SVP. The individual who informed Spencer of his new designation told him that he could appeal this decision and that he could obtain "paperwork" when he came in to register. The Sheriff's office, however, never notified Spencer in writing of the change of his designation.

[7] On December 5, 2018, Spencer filed a petition in the trial court to remove his designation as an SVP. The trial court held a hearing on the petition on March 29, 2019, at the conclusion of which it took the matter under advisement and instructed the parties to file briefs on the issue. After the parties submitted their briefs, the trial court entered an order on March 9, 2020, denying Spencer's petition. This appeal ensued.

I. Spencer Did Not Fail to Exhaust Available Administrative Remedies

[8] We first address what the State claims is a dispositive issue: whether Spencer's claim is precluded because he failed to exhaust his administrative remedies. It is well-settled that, if an administrative remedy is available, it must be pursued before a claimant is allowed access to the courts. Grdinich v. Plan Comm'n for Town of Hebron , 120 N.E.3d 269, 276 (Ind. Ct. App. 2019) (citing Town Council of New Harmony v. Parker , 726 N.E.2d 1217, 1224 (Ind. 2000), modified on reh'g 737 N.E.2d 719 ). If an administrative remedy is readily available, filing a claim in court is not a suitable alternative. Id. (citing Carter v. Nugent Sand Co. , 925 N.E.2d 356, 360 (Ind. 2010) ). The failure to exhaust administrative remedies is a procedural error that does not affect a trial court's subject matter jurisdiction. Id. at 274–75 (citing First Am. Title Ins. Co. v. Robertson , 19 N.E.3d 757, 760 (Ind. 2014), modified on reh'g on other grounds , 27 N.E.3d 768 (Ind. 2015) ). And there are exceptions to the general requirement to exhaust administrative remedies, e.g. "exhaustion is not required where it would be futile, where the agency action is ultra vires , where exhaustion would cause irreparable injury, or where other equitable considerations preclude exhaustion[.]" Graham v. Town of Brownsburg , 124 N.E.3d 1241, 1247 (Ind. Ct. App. 2019), trans. denied (citations omitted).

[9] In the present case, the State contends that Spencer failed to exhaust the administrative remedies that were available to him, specifically referring to an exhibit submitted by the State, obtained from the Department of Correction's ("DOC") website, titled "Indiana Registration Appeal Procedure for Non-Incarcerated Registrants" (the "DOC Appeal Procedure"). Ex. Vol., State's Ex. A, p. 37.

[10] The DOC Appeal Procedure sets forth the manner in which a "Local Law Enforcement Authority"⁴ may implement a "Proposed Change"⁵ to the information regarding a "Local Subject"⁶ in the Indiana Sex and Violent Offender Registry. It also sets forth the administrative procedure by which the Local Subject can protest any Proposed Change and, if necessary, appeal this decision to the DOC. The "general rule" of the DOC Appeal Procedure provides:

2. Substance of the procedure.

a. The general rule.

i. A Local Law Enforcement Authority shall notify a Local Subject in writing any time it

(a) proposes to enter a new Local Subject into the Registry; or

(b) proposes to change, to add to, or to subtract from public information previously entered into the Registry; or

(c) refuses a Local Subject's written request or notice to change, to add to, or to subtract from public information previously entered into the Registry.

* * *

iii. When the Local Subject believes that the entry, change, or refusal will result in an error, the Local Subject has a right to protest, first to the Local Law Enforcement Authority and then, if necessary, by appeal to the Department.

iv. The Local Subject must raise all issues at the time of the Protest and any Appeal, and a failure to raise any issue at the first opportunity will result in a waiver of that issue.

v. This procedure allows for a single administrative protest followed by a single appeal within a specific time period, and does not permit a second or subsequent administrative challenge, to a Local Subject's inclusion in the Registry or to changes in the Registry or refusals to change the Registry, except that a new Protest and Appeal will be permitted when the Local Subject's circumstances change, such as when a court order changes the Local Subject's criminal status.

Id. at § 2 (emphasis added).

[11] The DOC Appeal Procedure then lays out the procedure to be followed by the Local Law Enforcement Authority when it intends to make a Proposed Change to the Registry:

3. [ ]

* * *

b. When a Local Law Enforcement Authority plans to implement a Proposed Change, it creates a Specimen^[7] showing the public information about the Local Subject that the Registry will display, and advises the Local Subject of the date upon which it intends to display the public information.

c. The Local Law Enforcement Authority gives a copy of the Specimen and notification of the date upon which it intends to display the public information to the Local Subject, either by personally delivering a copy to the Local Subject or by mailing a copy of the Specimen to the Local Subject by first-class mail ....

Id. at § 3. The Local Law Enforcement Authority must notify the Local Subject of a Proposed Change "at least 7 calendar days before the Proposed Posting Date if notice is given to the Local Subject in person," or "at least 10 calendar days before the Proposed Posting Date if notice is sent to the Local Subject by mail." Id. at § 11.a.

[12] If a Local Subject disagrees with a Proposed Change, he or she may protest the change with the Local Law Enforcement Authority. In such a protest:

5. The Local Subject may raise any of the following claims in a Protest:

a. The Local Law Enforcement Authority's Proposed Change would add the Local Subject to the Registry incorrectly because either

i. The Local Subject should not be added, or

ii. The public information about the Local Subject is incorrect or incomplete;

b. The Local Law Enforcement Authority's Proposed Change would make the listed public information about the Local Subject incorrect or incomplete;

c. The Local Law Enforcement Authority's Refusal makes the listed public information about the Local Subject incorrect or incomplete; or

d. A combination of two or more of the foregoing claims.

6. Subjects of the Protest.

The Protest is limited to the specific change, or refusal to change, and therefore its subject matter is limited to:

a. Adding the Local Subject to the Registry;

b. The material to be newly added;

c. Any material to be newly removed;

d. Any material that should have been newly added or removed but was not added or removed due to the Local Law Enforcement Authority's Refusal; e. A combination of two or more of the foregoing matters.

Id. at §§ 5–6.

[13] Importantly, the DOC Appeal Procedure also provides:

4. The right of Protest.

The right of Protest arises only upon any of the following events:

a. A Local Law Enforcement Authority notifies a Local Subject of a Proposed Change ;

b. A Local Law Enforcement Authority notifies a Local Subject of a

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