Randall D. Hansen v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 31 2019, 6:48 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Randall D. Hansen Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randall D. Hansen, December 31, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-1042
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Respondent, Judge
Trial Court Cause No.
33C02-1809-PL-58
Robb, Judge.
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Case Summary and Issue
[1] Randall Hansen was convicted of criminal deviate conduct, a Class B felony,
and sentenced to eighteen years in the Indiana Department of Correction
(“DOC”). In 2017, Hansen was released on parole but, following a parole
violation, was re-incarcerated. The DOC notified Hansen that, upon his release
from the DOC, he was required to register as a sexually violent predator
(“SVP”) every ninety days for life. In 2018, Hansen filed a complaint for
declaratory and injunctive relief challenging the registry requirement. The State
filed a motion to dismiss Hansen’s petition, which the trial court granted.
Hansen appeals and raises numerous issues which we consolidate and restate as
whether the trial court erred by granting the State’s motion and dismissing
Hansen’s complaint. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] On July 31, 2006, Hansen was convicted of criminal deviate conduct, a Class B
felony, for acts committed in September 2005. The trial court sentenced
Hansen to eighteen years in the DOC. On September 28, 2011, the DOC
notified Hansen that, upon his release, he would be required to register as a sex
offender for ten years. Hansen was released on parole in January 2017. A
parole violation warrant for Hansen was issued on August 14, 2017 and was
served three days later. Hansen waived a preliminary hearing, pleaded guilty to
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the alleged violation, and was returned to the DOC. See Appellant’s Appendix,
Volume [2] at 23-27.1
[3] On October 25, 2017, the DOC sent Hansen a Notice of Intent to Provide
Information to Sex and Violent Offender Registry and Right to Appeal form.
Hansen appealed.2 In August 2018, Hansen was notified by the DOC that his
appeal was denied because he had been classified as an SVP by operation of law
and upon his release, he was required to register as an SVP every ninety days
for life.
[4] In October 2018, Hansen filed a Complaint for Declaratory and Injunctive
Relief, in which he argued that the lifetime registry requirement violated the
equal protection, due process of law, and ex post facto clauses of the state and
federal constitutions. The State filed a motion to dismiss Hansen’s complaint
for failure to state a claim upon which relief could be granted because Hansen is
an SVP by operation of law. Hansen filed a brief in opposition to the State’s
motion. On February 25, 2019, the trial court granted the State’s motion and
dismissed Hansen’s complaint. Hansen filed a motion to correct error, which
was deemed denied. Hansen now appeals.
1
Hansen’s Table of Contents to the Appellant’s Appendix and the Appellant’s Appendix are both listed as
“Volume 1 of 2[.]” This appears to be an error. For purposes of this opinion, the Table of Contents will be
cited to as Volume 1 of the Appellant’s Appendix and the Appellant’s Appendix will be cited to as Volume
[2].
2
The facts and circumstances surrounding his appeal are limited and do not appear in the record.
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Discussion and Decision
I. Standard of Review
[5] Hansen appeals from the trial court’s grant of the State’s motion to dismiss his
complaint, which we review as follows:
The standard of review on appeal of a trial court’s grant of a
motion to dismiss for the failure to state a claim is de novo and
requires no deference to the trial court’s decision. The grant or
denial of a motion to dismiss turns only on the legal sufficiency
of the claim and does not require determinations of fact. A
motion to dismiss under [Trial] Rule 12(B)(6) tests the legal
sufficiency of a complaint: that is, whether the allegations in the
complaint establish any set of circumstances under which a
plaintiff would be entitled to relief. Thus, while we do not test
the sufficiency of the facts alleged with regards to their adequacy
to provide recovery, we do test their sufficiency with regards to
whether or not they have stated some factual scenario in which a
legally actionable injury has occurred.
Doe v. Adams, 53 N.E.3d 483, 491-92 (Ind. Ct. App. 2016) (quoting Bellows v. Bd.
of Comm’rs of Cty. of Elkhart, 926 N.E.2d 96, 110 (Ind. Ct. App. 2010)), trans.
denied. A complaint may not be dismissed for failure to state a claim upon
which relief can be granted unless it is clear on the face of the complaint that
the complaining party is not entitled to relief. Greer v. Buss, 918 N.E.2d 607,
614 (Ind. Ct. App. 2009).
[6] Additionally, we note that Hansen has chosen to proceed pro se. It is well
settled that pro se litigants are held to the same legal standards as licensed
attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.
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denied. Thus, pro se litigants are bound to follow the established rules of
procedure and must be prepared to accept the consequences of their failure to
do so. Core v. State, 122 N.E.3d 974, 977 (Ind. Ct. App. 2019).
II. Hansen’s Status
[7] Hansen challenges his status as an SVP requiring him to register as such every
ninety days for life. He argues that the 2007 amendment providing that a
person is an SVP by operation of law if the person has committed a qualifying
offense and is released after June 30, 1994, which was enacted after he
committed his offense, violates Indiana’s prohibition against ex post fact laws.3
Brief of Appellant at 11 (citing Ind. Const. art. 1, § 24).
[8] Article 1, section 24 of the Indiana Constitution states, “No ex post facto law . . .
shall ever be passed.” “[T]he 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). The Indiana Sex Offender
Registration Act (the “Act”) generally requires persons convicted of certain
offenses to register with local law enforcement agencies and to disclose detailed
3
In his complaint filed with the trial court, Hansen argued that the lifetime registry requirement violated the
equal protection, due process of law, and ex post facto clauses of the state and federal constitutions.
However, on appeal, Hansen argues that the requirement only violates Indiana’s ex post facto clause and
therefore, he has waived any argument with respect to its constitutionality under the equal protection and
due process clauses. See Ind. Appellate Rule 46(A)(8)(a).
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personal information. Id. at 805. Since its enactment in 1994, the Act has gone
through a series of amendments significant to the case before us. Id. at 806.
[9] In 1997, a sex offender was defined as a person convicted of a qualifying offense
after June 30, 1994. Id. A sex offender was required to register with local law
enforcement agencies and to disclose certain personal information for ten years
after his release. Id. Effective July 1, 1998, our legislature amended the Act to
add an SVP status, which was defined as an “individual who suffers from a
mental abnormality or personality disorder that makes the individual likely to
repeatedly engage” in certain offenses, including criminal deviate conduct. Ind.
Code § 5-2-12-4.5 (1998); see Pub. L. No. 56-1998. The trial court was required
to determine SVP status at the sentencing hearing and an SVP was required to
register for an indefinite period. Ind. Code §§ 35-38-1-7.5(d) (1998); 5-2-12-
13(b). Notably, effective in 2003, an amendment was added which required
lifetime registration for SVPs. Lemmon, 949 N.E.2d at 806; Ind. Code § 11-8-8-
19(b) (2006). In 2007, the Act was amended to provide that a person is an SVP
by operation of law if the person has committed a qualifying offense,4 and was
released from incarceration, secure detention, or probation for the offense after
June 30, 1994. Ind. Code § 35-38-1-7.5 (2007); see also Lemmon, 949 N.E.2d at
806.
4
In 2005, criminal deviate conduct pursuant to Indiana Code 35-42-4-2 (prior to its repeal and recodification)
was a qualifying offense. See Ind. Code § 35-38-1-7.5(b)(1)(B).
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[10] The crux of Hansen’s argument is that he cannot be classified as an SVP by
operation of law and required to register for life under the 2007 statutory
amendment as it was not in existence when he committed the underlying
offense in 2005. He contends that his offense “could not have qualified him as
SVP at the time he committed the offense on September of 2005 and the
amendment of I.C. 35-38-1-7.5(b)(2006) and parole statute I.C. 35-50-6-1(e) was
not yet in existence” and thus, it violates the ex post facto clause of the Indiana
Constitution. Br. of Appellant at 13.5 Hansen’s main assertion, however, has
already been decided against his position.
[11] In Lemmon v. Harris, our supreme court considered this very question in a nearly
identical factual scenario where Harris, a sex offender, had committed his
crimes before our legislature created the SVP status. 949 N.E.2d at 804. Prior to
the 2007 amendment, Harris had been classified as a sex offender and was
required to register as such for a period of ten years after his release. Id. at 805.
Following the 2007 amendment, the DOC informed Harris that he was an SVP
by operation of law and was required to register as an SVP for life. Id. Harris
challenged his status and argued that his classification as an SVP under the
5
He further argues that two experts had evaluated him in June 2006 and both determined he was not an
SVP. In 2006, the trial court could find a person an SVP based on the offense committed or based on
consultation with two psychologists or psychiatrists who considered whether the person suffered from a
mental abnormality or personality disorder making the person likely to repeatedly engage in prohibited
conduct. Ind. Code § 35-38-1-7.5(a), (e) (1998). Currently, consultation with experts is only required if the
person is not an SVP because of the offense committed but the prosecuting attorney requests a hearing to
determine whether the person could be considered an SVP under this definition. Ind. Code § 35-38-1-7.5(e).
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2007 amendment, which converted his ten-year registration requirement into a
lifetime-registration requirement, violated our ex post facto clause. Id. at 809.
[12] In determining whether the Act violated our ex post facto clause, our supreme
court explained that with the 2007 amendment, our legislature had changed the
Act from requiring a trial court to determine SVP status at the sentencing
hearing to the “automatic designation of SVP status.” Id. at 808. At the time
Harris was released from prison, the amendment was in effect and provided
that a person is an SVP by operation of law pursuant to Indiana Code section
35-38-1-7.5(b) if he committed a designated offense. Id. The court held that the
amendment explicitly stated the provisions apply to persons who commit the
designated offenses and are released from incarceration, secure detention, or
probation for the offense after June 30, 1994. Id. at 809. Therefore, by the
amendment’s plain language, the court concluded it applied retroactively to
Harris. Id. The court also held the amendment’s application to Harris,
extending the length of his registry requirement, was non-punitive and thus, did
not violate the ex post facto clause. Id. at 809-12.
[13] Our supreme court’s decision in Lemmon governs the result in this case. Here,
Hansen committed his offense in 2005 and was convicted of criminal deviate
conduct in 2006. Like the defendant in Lemmon, Hansen committed the offense
prior to the 2007 amendment, and he committed one of the qualifying offenses
and will be released after June 30, 1994. Ind. Code § 35-38-1-7.5(b). Because
the amendment retroactively applies to Hansen, he is an SVP by operation of
law and is required to register as such every ninety days for life. Therefore, we
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conclude the trial court did not err in dismissing Hansen’s complaint because it
is clear on the face of his complaint that he is not entitled to relief. 6 See Greer,
918 N.E.2d at 614; see also Doe, 53 N.E.3d at 491.
Conclusion
[14] The trial court did not err in dismissing Hansen’s complaint because it is
apparent that the facts alleged in his pleading are incapable of supporting relief
under any set of circumstances. Accordingly, the judgment of the trial court is
affirmed.
[15] Affirmed.
Mathias, J., and Pyle, J., concur.
6
We decline to address the merits of several other issues raised by Hansen in his brief. First, Hansen
challenges the revocation of his parole, as well as the parole conditions imposed. However, in Hansen’s
filings with the trial court, he only challenged his status as an SVP and the lifetime registry requirement.
Because these issues were not raised to the trial court, they are waived. N.C. v. Ind. Dep’t of Child Servs., 56
N.E.3d 65, 69 (Ind. Ct. App. 2016) (“[A] party may not raise an issue for the first time on appeal.”), trans.
denied. Second, Hansen appears to argue the trial court erred by failing to treat his complaint as a petition for
post-conviction relief given the substance of his complaint. We conclude that Hansen lacks a viable claim
with respect to this issue as he cannot now change his position and argue that he intended to file for post-
conviction relief in response to an unfavorable judgment. See Richardson v. Hansrote, 883 N.E.2d 1165, 1173
(Ind. Ct. App. 2008) (“A party cannot maintain one position before the trial court and another position on
appeal.”); see also Ind. Post-Conviction Rule 1(1)(a) (describing claims available on post-conviction) and
Lemmon, 949 N.E.2d at 805 (deciding the same issue raised by a complaint for declaratory judgment and
injunctive relief). Lastly, to the extent Hansen argues the trial court lacked jurisdiction to entertain his
complaint, he is incorrect and fails to provide any authority to support this proposition. Our trial courts are
courts of general jurisdiction, Davis v. Simon, 963 N.E.2d 46, 51 (Ind. Ct. App. 2012), and therefore, subject
matter jurisdiction is presumed, Fry v. Fry, 8 N.E.3d 209, 215 (Ind. Ct. App. 2014). And Indiana courts have
held that certain types of DOC actions may be reviewed by our courts, including petitions for declaratory and
injunctive relief. State v. Moore, 909 N.E.2d 1053, 1056 (Ind. Ct. App. 2009), trans. denied. Therefore, Hansen
has no viable claim with respect to the trial court’s jurisdiction in this matter. With respect to these issues, we
also note that State only argued waiver. The State’s brief in this case did not aid us in deciding this matter.
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