*1 has a murder commits who BROGAN, Appellant- E. Glenn forty-five between of range sentencing Defendant, adviso- years, sixty-five years years. fifty-five being ry sentence such, Suprenant As $ 35-50-23. Code Indiana, Appellee-Plaintiff. of STATE years five a sentence received asks He advisory sentence. of excess 57A04-0910-CR-592. No. the adviso- sentence his reduce we Indiana. of Appeals of history, his of criminal lack his ry, citing classes, his education special need 6, 2010. May the crime. responsibility acceptance Suprenant's nature sixty-one inflicted He brutal. particularly forty-nine victim, with
wounds Three wounds. as stab described
these home trailer present were
children portion they observed killing;
during the attack.
of the offender, Su- character history apart no criminal
prenant without a vehicle operating
an offense out, Suprenant And, points he
license. Appel- the scene." at guilt
"admitted Nonetheless, ad- Brief
lant's in that essentially pragmatic
mission present only adult was the
Suprenant eyewitnesses small three were
there
crime. nature of find that sum, we do of the offender character or the
the offense than more years of five a sentence
renders inappropriate. advisory sentence
Affirmed. J., ROBB, concur.
MAY, J., and
Glenn E. Brogan, Castle, IN, New Ap- pellant Pro Se.
Gregory Zoeller, F. Attorney General of Indiana, Whitehead, J.T. Deputy Attorney General, IN, Indianapolis, Attorneys Appellee. OPINION SULLIVAN, Senior Judge. This appeal requires a follow-up and application of the recent Indiana Supreme Court decision in State, Wallace v. (Ind.2009), reh'g denied. The principle enunciated in that case is that application of the 1994 Sex Reg- Offender istration Law persons who committed a prior to enactment of that law constitutes a violation of comply Defendant ordered Constitution. clause requirements, I, § 24.1 Art. Const. authority not have does this Court forth not set decision, did the removal order *3 imple guidelines or any procedures sex offender name from Defendant's princi announced newly of mentation from relief seeking persons to other ple offend of sex punishment 4.p. App. Appellant's did Neither requirements. er to as referred collectively The statutes of variations possible address the decision Act Registration Offender Sex the Indiana issue.2 of posture factual of Act") convicted ("the defendants require (Brogan) case, Brogan E. Glenn this In law en- with register to offenses certain denial Court's Superior appeals specific and disclose agencies foreement Defendant Remove to Motion of 1994, effective enacted information.4 Motion).3 (the Registry Offender Sex Indiana's "offender" an defined the Act July aas parole or probation on person "a as County, 1994, 31, in Noble On October enumer certain [for a conviction of result counts of two to guilty pleaded Brogan 11, § 7. Acts 1994 offenses]." ated felonies. C as class both molesting, child with register to The offender 1994, trial court 14, November On where agency law enforcement local sen- aggregate to Brogan sentenced to reside or intends resides the offender (5) years. five tence at arrival of his days seven within 2009, 24, Brogan August On place intended residence place contended, contends Motion. amendment Subsequent residence.5 to be cannot that he appeal, on places to duty to extended because sex offender as a property, real owns him, is an ex to applied as requirement, earry on employed or intends Arti- in violation punishment post facto be to or intends vocation, is enrolled Constitu- Indiana 24 of the I, Section cle institution. an educational enrolled Mo- denied The trial tion. (West's Annotated § 11-8-8-7 In filed. it was that date the same tion on 2008). Supplement Code concluded: order, trial court its duty that the provided also law The 1994 fully served has Defendant Because the offender's terminated case and in this sentence 1994 probation. Court no time and at probation, distinguishes between currently Act 4. The I, Constitu- the Indiana 24 of Section Article sexually pre- violent offenders ... or violent law post facto ex provides "[nlo requirements dators, imposes different and it passed." be ever In this of offender. classification upon each contend does not State ex Wallace, presented an appellant In we review so predator, sexually violent is a failure prosecution to a defense post facto statutory pro- Brogan's claims register as a sexual offenders. govern sex visions at 373. required the enacted statute 5. The Noble Circuit Motion Brogan filed his "estab- Institute Justice Criminal of two sex been convicted he had regis- ... a sex and maintain lish was transferred Motion offenses. 11,§ 5. Ind.Acts try...." 1994 One. Division 11, § Ind. Acts 7. Thus the registration Under the basic statutory scheme, be- clearly solely related to the pred- cause the required registration was to be icate criminal sexual offense itself. The made to a local law enforcement agency, duty was not open-ended. under a 2002 amendment the county sher- iff or police chief of a city consolidated the General Assembly refined became required to notify the Indiana and limited the definition of "offender" to (the Criminal Justice Institute) Institute "of a convicted after June each registration by sending a copy of the 1994. ..." Ind. Acts 1. It de registration to the Institute leted the language providing that the of *4 116, § Acts 9. The 2002 amendment also fender must be a person on parole or created a central "Indiana sex offender probation for offenses, offense or but registry" to be established and maintained provided that the duty to register expired by all jointly. sheriffs § 36- ten years after the offender was "released 2-18-5.5. from prison, placed parole, or placed on probation...." § Id. at 2. It appears that An amendment 2005 the requirement to register was still tied county sheriffs and city consolidated police to the basic sex crime conviction and its chiefs to send copies of each registration to direct consequences, i.e. imprisonment, pa the Indiana Department (the of Correction role or probation. Department) for inclusion in an automated victim notification system under § I.C. 11- However, as of the amendment, 1995 it (also 8-7-1 et seq. created in the 2005 was apparently not contemplated that the amendment).7 64, 2005 § Ind. Acts offender was required to register while incarcerated immediately following convic- We do not perceive that the central reg- tion. The duty was triggered by istry by maintained the Indiana Sheriffs' prison after serving the sex offense Association (the Association) abolishes or sentence, by whether expiration of in any the sen- way limits the central tence, by or or probation upon maintained and, Institute as of the offense. 2005, by the Department. It may be, well assume, we registries central In 2003 an amendment contained the maintained by multiple agen- state-wide requirement that the registration occur no cies, including the three mentioned above. later than seven days from release from penal custody, For time, the first parole, probation. 2006 codification of the law 2008 55, contained the § Acts following provi- 1. Again, this indi- sion: requirement cates no for registration dur-
ing the time the offender is serving his "A sex offender committed to the de- executed sentence for the underlying crim- partment shall register with the depart- inal sexual offense. ment before the sex offender is released should noted although ter, LC. seq. 11-8-8-1 et See 2006 Ind. Acts triggered was by a "conviction" 173, July therefore, 13. As of for purposes applying offender with the protections, the date the offense "local law authority," enforcement thereby date, committed operative is the not the reinstating language of the statute date of conviction for the offense. rather than specifying the "sheriff of the county""or police." the "chief of (PL. 140) In 2006 the sex registra- offender provisions tion were codified in a Chap- new
1289 Rene ex rel. Rene possibilities...." stract department incarceration. 808, (Ind.Ct.App. Reed, 822 N.E.2d registra- offender's the sex forward En 2000) Department (quoting law enforce- local information v. Chenical Management vironmental county in which every authority of ment Incorporated, Management, Waste register." required to (Ind.1994)). 331, rul court 173, sup- (emphasis Acts must consider challenge ripeness on a ing plied). judicial deci "the fitness of issues to con appears provision new This parties hardship sion offender be of a sex template consideration." withholding residency, employment up he takes fore Company & Electric Gas (quoting Pacific county coun in a education & Resources Conservation Emergy v. State duty to appears It also ties. Commission, 461 U.S. Development the conviction with occurs (1983)) 75 L.Ed.2d 103 S.Ct. Department for with incarceration omitted). (quotation Act enumerated very *5 incarcerated with Brogan, who is trig therefore not is Registration itself. upon the although Department, in presence gered convietions, the tri asked sex offense following community Indiana an him from immediately relieve court to al conviction triggered is custody but from Act, imposed by requirements itself. the offense for First, two reasons. ripe claim is provision to construe We do not register with obligated to Brogan is requirement a contemplate before his as a sex offender Department who, for a Department 'with § 11- incarceration. See I1.C. release from convie prior for a a sex offender though 8-8-7(F). Second, that concedes the State incar from been released having tion a conviction is incarcerated probation, ceration, parole on placed reg County for failure to Huntington for a Department anew to committed is p.Br. Appellee's as a sex offender.8 ister offender, If the crime. totally unrelated based on Therefore, claim is Brogan's probation violates his harm, not ab ongoing alleged present, re- offense and is original sex upon is fit for appeal and his possibilities, stract for the to serve time incarcerated the merits. consideration might be duty a new to necessary to determine It is required. cognizable a "Motion" is Brogan's whether upon we are called say it to Suffice argument. vehicle for the ex facto peti- a or forums in what forum to decide Motion to consider implausible relief. may seek Wallace tioner to Ind.Code a "petition" 11-8-8-22, and re in 2007 matter, as enacted we con preliminary aAs Service Legislative by 2010 Indiana for vised proper claim is whether sider (West). 103-2010, § That statute PL. referred This our determination. offender to by a sex petition provides In es "ripeness." the doctrine to as designa name removed have his degree to sence, relates to the "ripeness him to relieve so as as a sex offender in a case issues the defined a register as than on ab- facts rather on actual based incar- cerated. remains whether It is unclear Id. provision contemplates This removal of Superior Court properly denied Brogan's person's any name from sexual offend Motion. er registry, whether in a locality Given the recency of the Wallace deci- centrally maintained sion and the absence of a path charted provision applicable is made if there case, it is not surprising that Brogan has been a "change in federal or state law sought relief Noble County. It was in after June 2007." Id. We hold that the that county that he was convicted of Supreme Court decision in Wal crimes which triggered a putative duty to lace, supra, is such a change in Indiana register. Nevertheless, equally it un- Furthermore, law. provision, as re surprising given procedural pos- amended, cently effective March ture of the Noble Superior explicitly authorizes offender to raise reached the conclusion quoted earlier in an ex post claim in dismissing Brogan's Motion. The trial relieved of the obligation as a reasoning court's is particularly under- sex offender. See 2010 Legis. Serv. standable in light of the fact that as the (West). 108-2010, PL. Therefore, observes, State Brogan "is currently incar- Brogan appropriately presented his re cerated at New Castle Correctional Facili- quest to be removed from the sex offender ty, for failure offender; as a sex registry in the "Motion." this is Cause Number 35-C-02-08083-
Turning to us, the case before a FC-00017 out of Huntington County, that crucial issue is whether the trial court he was sentenced for same on July properly determined that it juris lacked *6 ..." Appellee's p.Br. diction to order Brogan's name removed In this Brogan filed his Motion from the sex offender When ju under criminal cause number. risdictional facts are not in dispute, the Brogan argues that the trial court question is "in of whether a lower court had the position best to determine jurisdiction clarify is reviewed de novo. Phares Brogan's sentence." State, Appellant's p. Br. (Ind.Ct 796 N.E.2d 306-307 However, Brogan does not .App.2003). dispute the tri- al court's determination that the original With regard to the precise issue as sentencing order did not require him to particular Indiana forum or forums aas sex also available for the granting relief, the does dispute not that he has served the State contends that the Superior sentence for his child molestation convic- Court jurisdiction. lacks argued is tions. the court jurisdiction lost more than fifteen years ago when it entered Under the judg its final new legislative enactment, the General Assembly ment of conviction on expressed has November 1994.9 The State further contends that intention that petition because to be relieved of the law is mandatory, the the obligation trial as a sex offender court is without power to change appli should be filed in a county other than the cation of the Sex Offender Registry. county Ac where the offender was originally cordingly, it is asserted that the convicted of a sex if the offender judgment 9. The of conviction was entered in above, however, noted the Motion was trans- by the Noble Circuit Court and Superior ferred to the Noble Division Motion to Remove Defendant from Sex Of- One. Registry fender was filed in that court. As is "in all civil jurisdiction has cuit Court connection current no other except cases criminal in all cases and amended, Ind.Code recently County. is conferred exclusive where provides, 11-8-8-22 section the same courts of other upon law be shall this section under petition § 33- territorial surisdiction." court of superior circuit filed added). juris That (emphasis 28-1-2 resides. the offender in which county the Noble Circuit diction in more than one resides the offender If bound territorial limited to the is Courts in be filed (1) shall petition county, the clear two county is made of the aries the coun- court of superior cireuit or Winton, 1 Ind. Sherry v. old cases. resides offender ty in which (1848), held Supreme our 98-99 does not If the time. greatest by the Cireuit Court Carroll process issued be Indiana, shall petition in reside Tippe to the Sheriff as issued was void superior court in the cireuit filed Lowery v. State County. See canoe is em- the offender county 100, 54 Company, Insurance Life If the offender time. greatest ployed (1899). N.E. 442 Indiana, but in work reside or not does clear thing patently is One Indiana, shall petition is a student Brogan is entitled decision. Wallace superior in the cireuit be of- any removed his name have is a the offender county where of the has resulted which fender a student the offender If student. County. in Noble 1994 convictions or work not reside does in Indiana multiple There are be filed Indiana, containing registries have counties most county where name. We do individual's listed a crime convicted recently file a peti- must that such believe chapter. of this section every in each his name removal of county. 108-2010, § 2. P.L. Legis. Serv. statute, appropriate most County Under hold, that Noble doWe his Motion to file *7 place of this not, the facts under judi- he resides. to obtain county in which in which forum appropriate officials an- registry directing cial relief in the absence proposition, general aAs his name. county to remove other statutory provision a constitutional Supe of the Noble ruling a court affirm jurisdiction, We extra-territorial right of prejudice territo- without rior Court created within to Ind.Code pursuant relief to seek Brogan jurisdic- in its is limited the state ry within § 11-8-8-22.10 21 C.J.S. territory. tion to such (2006). Courts Affirmed. specifically, More RILEY, J., concurs. statute, same has the J., in result with BARNES, concurring Court. Noble Cireuit as opinion. separate Cir- The Noble § 33-338-57-4.
Ind.Code § 11-8-8- Ind.Code time." spends the most county specify unable to We are incarcerated, ap 'it Brogan remains petition because file the If must which incarcerat county where he is pears that the file requires § 11-8-8-22 a proper place to file would be the ed he resides. county where petition in obligation to relieved "principal residence" The Act defines as a sex violent offender a sex or ''the residence BARNES, Judge, concurring in result. the amended statute court, allow the trial and this appeal, court on to be fully in- I respectfully concur result. I agree formed of a sex cireamstances, offender's that the trial court properly denied Bro- including the offender's full criminal histo- gan's motion and that Brogan should be ry, offenses, dates of pursuant to refile his claim and reason for being register. All newly par- amended Indiana interested Code Section 11- ties given 8-8-22. notice of the only result, however, proceedings. I concur in I premature think it is majority's due to the holding this time "Brogan to hold that Brogan is entitled to have his name is entitled to have his removed from name any sex removed from result- offender registry. ed from his 1994 convictions in reason, For this I concur in result. County." Slip Op. p. be true
that Brogan is entitled to have his name
removed from the offender registry. determination,
That however, should be
made the trial court if Brogan refiles motion to Indiana Code See- 11-88-22. procedures set out