Preview:

FOR PUBLICATION

APPELLANT PRO SE: MARK VICKERY New Castle, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General

FILED
Jun 09 2010, 10:16 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
MARK VICKERY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-1001-CR-38

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge Cause No. 49G03-0308-FB-136701

June 9, 2010

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary Mark Vickery appeals the trial court's denial of his motion to remove sexually violent predator ("SVP") status. We affirm.1 Issue
I. Does the current version of Indiana Code Section 35-38-1-7.5, as

applied to Vickery, violate the ex post facto provisions of the Indiana and U.S. Constitutions? II. Were Vickery's due process rights violated because he was classified as an SVP with no opportunity to be heard on the issue? Facts and Procedural History On June 9, 2004, Vickery pled guilty to child molesting as a class B felony for an act he committed against an eight-year-old child on or between June 1, 1995, and July 31, 1995. On June 30, 2004, the trial court sentenced Vickery to twelve years with six years suspended. Pursuant to the terms of the plea agreement, Vickery agreed that upon release from incarceration, he would register as a convicted sex offender with local law enforcement and comply with all other terms of Indiana Code Chapter 5-2-12, the Sex Offender Registration Act ("the Act"). While the definition of SVP had been added to the Act in 1998, the trial court did not determine that Vickery was an SVP at sentencing. On October 10, 2007, a notice of probation violation was filed with the trial court.

The State argues that the trial court had no jurisdiction over this matter because Vickery failed to comply with the post-conviction rules. In the interests of judicial economy, we elect to address Vickery's case on its merits.

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On October 31, 2007, the trial court revoked Vickery's probation and executed his four-year suspended sentence. In 2009, Vickery discovered that he was identified as an SVP on the online Indiana Sheriffs' Sex and Violent Offender Registry. On August 25, 2009, Vickery filed a motion to remove SVP status with the trial court. On December 3, 2009, the trial court denied his motion. Vickery now appeals. Discussion and Decision I. Ex Post Facto Vickery claims that his classification as an SVP is a violation of the ex post facto provisions of the Indiana and U.S. Constitutions. Article 1, Section 10 of the U.S. Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." Pursuant to Article 1, Section 24 of the Indiana Constitution, "[n]o ex post facto law ... shall ever be passed." The ex post facto clauses prohibit Indiana from enacting a law that imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. The focus of the ex post facto inquiry is not on whether the legislative change causes a disadvantage. Instead, we must determine whether the change increases the penalty by which a crime is punishable or alters the definition of criminal conduct. Ramon v. State, 888 N.E.2d 244, 251 (Ind. Ct. App. 2008) (citations and quotation marks omitted). Every statute stands before us clothed with the presumption of constitutionality until that presumption is clearly overcome by a contrary showing. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992). The party challenging the constitutionality of the statute bears the

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burden of proof. Id. All doubts are resolved against that party. Id. If two reasonable interpretations of a statute are available, one of which is constitutional and the other not, we will choose the interpretation which permits upholding the statute. Jensen v. State, 905 N.E.2d 384, 390-91 (Ind. 2009). We will not presume that the legislature violated the constitution unless the unambiguous language of the statute requires that conclusion. Id. In 1995, when Vickery committed the offense that ultimately led to his conviction in this case, the term "sexually violent predator" was not yet included in the Act. In 1998, the legislature enacted Indiana Code Section 5-2-12-4.5, which defined an SVP as "an individual who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in [sex offenses]." Pursuant to Indiana Code Section 35-38-17.5(c), also enacted in 1998, At the sentencing hearing, the court shall determine whether the person is a sexually violent predator. Before making a determination under this section, the court shall consult with a board of experts consisting of two (2) board certified psychologists or psychiatrists who have expertise in criminal behaviorial disorders. At Vickery's sentencing hearing on June 30, 2004, the trial court did not consult with a board of experts, and the court did not find Vickery to be an SVP. Moreover, the State apparently did not raise the SVP issue before the trial court. On July 1, 2006, the legislature amended Indiana Code Section 35-38-1-7.5 to include a provision designating that a person "is [an SVP] by operation of law if an offense committed by the person satisfies the conditions set forth in subdivision (1) or (2) and the person was released from incarceration, secured detention, or probation for the offense after

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June 30, 1994." See Ind. Code

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