Jеremiah CLINE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
No. 06A05-1111-MI-611.
Court of Appeals of Indiana.
July 26, 2012.
973 N.E.2d 1240
A. COVERAGE
1. We will pay the sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle” or an “underinsured motor vehicle.”
....
C. EXCLUSIONS
This insurance does not apply to: ...
2. The direct or indirect benefit of any insurer or self-insurer under any workers comрensation, disability benefits or similar law.
....
D. LIMIT OF INSURANCE
....
2. The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible, including all sums paid under the Coverage Form‘s LIABILITY COVERAGE.
3. Any amount payable for damages under this coverage shall be reduced by all sums paid or payable under any workers’ compensation, disability benefits or similar law.
In Beam, the parties agreed that the jury would determine liability and damages, and the issue of setoffs would be determined by the trial court. The jury found Beam‘s damages to be $701,371.00 and determined Beam to be 45% at fault. The trial court awarded setoffs against the jury verdict for 100% of all amounts received by Beam. We affirmed the trial court. Beam v. Wausau Ins. Co., 743 N.E.2d 1188 (Ind.Ct.App.2001), trans. granted. On petition to transfer, the Supreme Court held that the trial court correctly awarded the setoff against the damages awarded, but erred by reducing the damages award by the gross amount of worker‘s compensation benefits paid. 765 N.E.2d at 533. The Supreme Court held that the exclusion called for a reduction of damages by any amount of worker‘s compensation benefits received for the same element of damages insured by the policy. Id. Thus, the Supreme Court remanded the matter to the trial court to enter an order awarding damages reduced by 55% of the worker‘s compensatiоn benefits received.
In this case, the trial court‘s order granting summary judgment reflects, without opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law. After a determination of liability and damages, Justice‘s damages award should be reduced by the $25,000.00 recovery from Wagner and the percentage of worker‘s compensation benefits paid to Justice based upon Wagner‘s percentage of comparative fault, up to a maximum of $25,000.00.
Reversed and remanded with instructions.
BAKER, J., and BROWN, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BAILEY, Judge.
Case Summary
The Boone Circuit Court determined that Jeremiah Cline (“Cline“) is not required to register as a sex offender, but also determined that it lacked authority to order the removal of Cline‘s nаme and information from the Indiana Sex Offender Registry (“the Registry“). Cline appeals and presents the sole issue of whether the trial court has authority to expunge Cline‘s information from the Registry. We affirm.
Facts and Procedural History
Then twenty-year-old Cline engaged in sexual intercourse with a fifteen-year-old in February of 2001 and with a fourteen-year-old on June 4, 2001. On May 31, 2002, Cline pled guilty to two counts of Sexual Misconduct with a Minor, as Class C felonies.1 He was sentenced to six years imprisonment, with two years suspended.
The Indiana Sex Offender Act (originally enacted in 1994) (“the Act“), was amended, effective July 1, 2001 such that one
On July 26, 2011, Cline filed his “Amended Petition to Remove Petitioner From Sex Offender Registration Requirement.” (App. 20.) A hearing was conducted on July 27, 2011. On October 24, 2011, the trial court issued an order with specific findings. The trial court found that Cline had no obligation to continue to register as a sex offender, because application of the statutory change would constitute ex post facto punishment as to him. However, the trial court also found that it lacked authority to еxpunge Cline‘s existing information from the Registry. This appeal ensued.
Discussion and Decision
I. Standard of Review
Cline petitioned for relief pursuant to the provision of the Act allowing a sex offender to petition to remove the designation or register under less restrictive conditions.
The interpretation of a statute is a legal question that is reviewable de novo. Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind.Ct.App.2004). We owe no deference to a trial court‘s determination. Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App.2012). The goal of statutory construction is to determine and implement legislative intent. Fort Wayne Patrolmen‘s Benev. Ass‘n v. Fort Wayne, 903 N.E.2d 493, 497 (Ind.Ct.App.2009), trans. denied. We read all sections of an act and strive to give effect to all provisions. Id. “We will not read into a statute that which is not the manifest intent of the legislature. For this reason, it is as important to recognize not only what a statute says, but also what a statute does not say.” Cox v. Cantrell, 866 N.E.2d 798, 809 (Ind.Ct.App.2007) (citation and quotation marks omitted), trans. denied.
II. Analysis
Indiana law requires persons convicted of sex or viоlent crimes to report to and register with local law enforcement.
However, effects of the Act have been declared in violation of the ex post facto clause contained in the Indiana Constitution,3 as applied to persons who had committed their crimes prior to the imposition of any registration requirement. See Wallace v. State, 905 N.E.2d 371, 384 (Ind.2009) (defendant‘s conviction for failing to register as a sex offender was reversed because the registration statute, as applied to him, added punishment beyond that which could have been imposed when he committed his crime), reh‘g denied; see
Subsequent to the Wallace decision, our Legislature amended the Act such that it includes a provision allowing a sex offender to petition for removal of the designation, providing in relevant part:
(c) A person to whom this section applies may petition a court to:
(1) remove the person‘s designation as an offender; or
(2) require the person to register under less restrictive conditions.
(d) A petition under this section shall be filed in the circuit or superior court of the county in which the offender resides ....
(g) A court may grant a petition under this section if, following a hearing, the court makеs the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3) If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
In Wallace, our supreme court recognized that the Act imposes “significant affirmative obligations and a severe stigma on every person to whom it applies” and “exposes registrants to profound humiliation and community-wide ostracism.” 905 N.E.2d at 379-80. Mindful of such onerous effects, the Court highlighted a deficiency of the Act as it then existed, observ
In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.
Wallace, 905 N.E.2d at 384. Effectively, our supreme court invited the Legislature to provide a “mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure” or for shortening the time of obligation. Id. (emphasis added.) The Legislature responded by enacting a mechanism for relief from registration obligations and for shortening of the period of obligation. Notably, the Wallace Court did not address expungement; nor did the legislative resрonse specifically do so.
Although Cline claims he will have to endure the stigma associated with registration even if he does not register in the future, the fact that Cline committed sex crimes is a matter of public record. We do not read the Wallace decision as broadly as does Cline; it does not insulate an offender from all punitive consequences associated with having committed his crimes.5 Furthermore, the statutory provision undеr which Cline sought relief does not include an expungement provision.6 We will not add such a provision. See Cox, 866 N.E.2d at 809 (observing that we will not read into a statute that which is not the manifest intent of the legislature).
Nonetheless, a panel of this Court has very recently observed: “The undisputed facts here establish that the DOC [the Indiana Department of Correction] determines whether an incarcerated individual belongs on the Registry and also handles complaints about mistaken sex оffender registrations.” Myers v. Coats, 966 N.E.2d 652, 658 (Ind.Ct.App.2012) (emphasis added). We further observed that the DOC had added an administrative appeal to allow for challenges to errors on the Registry. Id. at 658, n. 4. Cline is not precluded from this avenue, although we express no opinion on the breadth of relief to be afforded, if any.
Cline has not demonstrated his entitlement to expungement as a judicial remedy;
Affirmed.
MATHIAS, J., concurs.
ROBB, C.J., dissents with opinion.
ROBB, Chief Judge, dissenting.
I respectfully dissent. I begin to explain why by briefly describing the factual and legal context. Upon Cline‘s release from incarceration, a state office required Cline to add his name and information to the sex offender registry. He later took the initiative to request the court remove7 his name and information, alleging it was unlawful to require him to have registered at all. Following a hearing, the trial court agreed with Cline that аuthorities violated the Indiana Constitution by requiring he add his name and information to the registry in the first place. I agree, and the majority appears to as well.
The majority further concludes, though, that trial courts have no authority to correct this admitted constitutional violation by ordering the removal of an erroneous registrant‘s name and information from the registry. It is this latter conclusion from which I respectfully dissent.
Before going furthеr, it is important to note what this case is not about. It is not about determining whether the registry requirement is an ex post facto law as applied to Cline. It is not about removing one‘s name and information from the registry due to a change in the law that eliminates an offense for which one must register. For instance, it is not about one who initially registered pursuant to a statute requiring registry for a conviction of sexual misconduct with a minor and later seeks removal upon a statutory change so that one later convicted of that offense is not required to register. This case is also not about removal of one‘s name and information from the registry or termination of the duty to register upon the passage of a period of time since he or she began registering. See
This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed. The backdrop is Wallace, in which our supreme court held that the sex offender registration act was unconstitutional as applied to one who committed his offense before the act was enacted. See 905 N.E.2d at 384. Specifically, the court held that it “violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. The General Assembly responded by amending Indiana Code
Thus, this case is also about interpreting and applying section 11-8-8-22. This section is poorly written and confusing. Nevertheless, a logical reading of the following subsections of section 11-8-8-22 determines the fate of Cline‘s petition.8
(b) Subsection (g) applies to an offender required to register under this chapter if, due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
(1) would not be required to register under this chapter; or
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
(c) A person to whom this section applies may petition a court to:
(1) remove the person‘s designation as an offender; ...
* * *
(g) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to registеr.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3) If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
The court has the discretion to deny a petition under this section, even if the court makes the findings under this subsection.
Subsection (c) states that the relief Cline seeks is available so long as the section applies to Cline. Subsection (b) states that a court may grant a petition to remove one‘s designation as an offender, referring to subsection (g), if “a change in federal or state law” after a certain date resulted in particular consequences for others. Subsection (g) also describes a court‘s authority regarding the registry when particular changes in the law occur.
The only way the repeated references to a “change in law” in section 11-8-8-22 make sense is if the section addresses the supreme court‘s concern that some applications of the registry lаws lead to violations of the Indiana Constitution‘s ex post facto clause. If the statute—particularly subsection (c)—does not mean that a court may remove an offender‘s name and information from the registry, then it has no meaning at all. “The goal of statutory construction is to determine, give effect to, and implement the intent of the General Assembly.” Sanders v. Bd. of Comm‘rs of Brown Cnty., 892 N.E.2d 1249, 1252 (Ind.Ct.App.2008), trans. denied. “[I]n seeking to give effect to the legislature‘s intent, we ... strive to give effеct to all of the provi-
Further, to the extent it is clear that section 11-8-8-22 is intended to address the Indiana Constitution‘s prohibition of ex post facto laws, the authority to remove an offender‘s name and information from the registry must rest with someone. Subsection (c) states that the authority rests with the trial court. The majority suggests Cline take up his cause with the Department of Correction. I believe the trial court is the appropriate authority, first because it is explicitly designated as such in subsection (c), and second because Cline‘s allegation that his listing violates the Indiana Constitution is one which trial courts have the authority and legal training to address.
The majority also supports its decision, in part, by contending that removal of Cline‘s name and information from the registry would be pointless because Cline‘s convictions would remain part of the public record even if he receives the relief he seeks. This implies that the registry is not harmful or punitive, and perhaps is merely a replica of the already-public criminal history of offenders. Our supreme cоurt concluded that the registry is punitive for its relative excessiveness, especially, as the majority points out, because as formulated at the time of Wallace, there was “no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure.” Op. at 1244 (quoting Wallace, 905 N.E.2d at 384). As the majority notes, section 11-8-8-22 might have partially or fully addressed this concern.
Regardless, the supreme court concluded the registry is punitive for other reasons too: because it “impose[s] substantial disabilities on registrants,” Wallace, 905 N.E.2d at 380, “resembles the punishment of shaming,” is “comparable to conditions of supervised probation or parole,” id. at 381, and it “promote[s] community condemnation of the offender,” id. at 382 (quotation omitted). Therefore, it is incorrect to suggest that removal of Cline‘s name from the registry would be pointless. To the extent the majority construes Cline‘s request as one to eliminate all punitive consequences associated with having committed his offenses, I believe that to be a different issue.
For these reasons, I respectfully dissent.