MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Dec 29 2016, 8:49 am

regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                       Gregory F. Zoeller
McCaslin & McCaslin                                     Attorney General of Indiana
Elkhart, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dwayne Pettis,                                          December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1603-CR-487
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Stephen R.
Appellee-Plaintiff                                      Bowers, Judge
                                                        Trial Court Cause Nos.
                                                        20D02-0601-FC-23
                                                        20D02-1001-PL-4



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 1 of 10
[1]   Dwayne Pettis appeals the trial court’s order classifying him as a sexually

      violent predator based upon two 1990 convictions. Pettis argues that the trial

      court was without authority to issue this order, that the order was prevented by

      principles of res judicata, and that the classification constitutes an

      unconstitutional ex post facto punishment. Finding no error, we affirm.


                                                    Facts
[2]   On October 1, 1990, Pettis pleaded guilty to class A felony sexual deviate

      conduct and class A felony rape. The trial court sentenced Pettis to concurrent

      fifty-year terms. On June 6, 1996, the trial court modified Pettis’s sentence,

      suspending ten years. On April 17, 2006, the trial court again modified the

      sentence, ordering the balance suspended and ordering that Pettis serve four

      years of home detention. Upon his release, Pettis was required to register as a

      sex offender. After numerous violations of home detention, the trial court

      revoked Pettis’s placement in 2008 and ordered him to serve the balance of his

      sentence. Also in 2008, Pettis pleaded guilty (in separate causes) to class D

      felony failure to register as a sex offender and class C felony burglary.


[3]   Included in the terms of probation for his class D felony failure to register as a

      sex offender was a designation of Pettis as a sexually violent predator and a

      concomitant requirement that he register as a sex offender for life. On April 1,

      2010, Pettis filed a petition to be removed from the requirement to register as a

      sex offender. On December 22, 2010, the trial court denied the petition as it

      pertained to the registration requirement but also found that Pettis was not a


      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 2 of 10
      sexually violent predator (the “2010 Order”). The trial court based its decision

      on Buss v. Harris, 926 N.E.2d 1110 (Ind. Ct. App. 2010), vacated. Neither Pettis

      nor the State appealed this order.


[4]   On September 16, 2015, Pettis filed a motion to modify his sentence. The trial

      court issued its order on Pettis’s motion on February 5, 2016. In pertinent part,

      the order states as follows:


              After reviewing the [2010 Order] and the case law, the Court
              revises its previous ruling and now holds that Mr. Pettis is not
              entitled to relief from his sexually violent predator status. . . .


              Changes to the case law since the Court’s order of December 22,
              2010, have returned Mr. Pettis to the sexual[ly] violent predator
              classification and subjects Mr. Pettis to the reporting
              requirements of a sexually violent predator. . . . The Court
              specifically cited Buss v. Harris, 926 N.E.2d 1110 (Ind. Ct. App.
              2010, and noted, “the facts of [Mr. Pettis’] case are squarely on
              line with those in” Harris.


              Since the [2010 Order], the Indiana Supreme Court reversed the
              Court of Appeals in Lemmon v. Harris, 949 N.E.2d 803 (Ind.
              2011). [fn 1] The Supreme Court held that the conditions
              imposed on sexually violent predators . . . do not constitute ex
              post facto punishment. As a result, the relief provided in [the 2010
              Order] was improper. Mr. Pettis is a sexually violent predator by
              operation of law under I.C. § 35-38-1-7.5(b)(1). Mr. Pettis must
              comply with the reporting requirements in the statute unless and
              until the Court grants relief under subsection (g). . . . The Court
              summarily denies Mr. Pettis’ request for a modification of his
              sentence.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 3 of 10
                      [fn] While Buss v. Harris was pending, Bruce Lemmon
                      replaced Edwin Buss as the Commissioner of the Indiana
                      Department of Correction[]. Lemmon was substituted for
                      Buss as the party in interest.


      Appellant’s App. Vol. 5 p. 66-67. Pettis now appeals his classification as a

      sexually violent predator.


                                   Discussion and Decision
[5]   Pettis contends that the trial court erred by reversing course from the 2010

      Order and designating him as a sexually violent predator. He essentially raises

      three arguments in support of this contention: (1) the trial court had no

      authority to act sua sponte in correcting the 2010 Order; (2) the 2010 Order is

      res judicata and may not now be modified; and (3) the classification as a

      sexually violent predator constitutes an unconstitutional ex post facto

      punishment. All of these arguments can be addressed by turning to the

      language of the relevant statute and our Supreme Court’s interpretation of that

      language.


                                               1. The Act
[6]   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 personal information.” Lemmon v. Harris, 949

      N.E.2d 803, 805 (Ind. 2011). The Act has been amended multiple times since

      first being enacted in 1994. In previous versions of the Act, the trial court was

      required to determine at the sentencing hearing whether a person was a sexually
      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 4 of 10
      violent predator. Id. at 806. But in 2007, the Act was again amended and now

      provides that—unless the person does not otherwise qualify as a sexually

      violent predator under the statute—the trial court no longer “determines”

      sexually violent predator status.1 Id. at 807.


[7]   Specifically, Indiana Code section 35-38-1-7.5 provides that a person who

      commits an offense included in an enumerated list, which includes both rape

      and criminal deviate conduct,2 is a sexually violent predator. Subject to

      exceptions not relevant in the instant case, “a person is a sexually violent

      predator by operation of law” if the offense is included in the enumerated list and

      the person was released from incarceration, secure detention, probation, or

      parole for that offense after June 30, 1994. I.C. § 35-38-1-7.5(b) (emphasis

      added).


[8]   In this case, Pettis committed two offenses—rape and criminally deviate

      conduct—that qualify him as a sexually violent predator. And, because he was

      released from incarceration for those offenses after June 30, 1994, he is a

      sexually violent predator by operation of law.




      1
       The Act has been amended since 2007, but all provisions relevant to this case remain the same in the
      current version.
      2
        The crime of criminal deviate conduct no longer exists in Indiana. But a prior conviction for the offense is
      still included as a predicate crime for designation as a sexually violent predator.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016            Page 5 of 10
                                                 2. Harris
[9]   In Harris, the defendant argued that he was not subject to the 2007 amendment

      of the Act. Specifically, he contended “that the DOC is not authorized to

      change his status to SVP where the trial court at sentencing did not make that

      determination and further argues that his status did not change by operation of

      law.” 949 N.E.2d at 808. Our Supreme Court disagreed:


              [U]nder the 2007 Amendment, the Legislature had changed the
              Act from requiring the court to determine SVP status at the
              sentencing hearing to the “automatic designation of SVP status.”
              At the time Harris was released from prison in December, 2007,
              the sentencing court was no longer required to have
              “determined” a person’s SVP status. Instead, the statute in effect
              at that time provided that a person is an SVP “by operation of
              law” under Indiana Code section 35–38–1–7.5(b) if he or she
              committed one of the designated offenses; Indiana Code section
              35–38–1–7.5(d) only required that the sentencing court “indicate
              on the record” whether he or she had committed such an offense.
              Moreover, unlike the 2006 Amendment, the 2007 Amendment
              explicitly states that its provisions apply to persons who commit
              designated offenses and are “released from incarceration, secure
              detention, or probation for the offense after June 30, 1994.” Ind.
              Code § 35–38–1–7.5(b) (Supp. 2007).


      Id. at 808 (internal footnotes omitted). Based on the plain language of Indiana

      Code section 35-38-1-7.5, our Supreme Court found that it applied retroactively

      to Harris and that he was classified as a sexually violent predator by operation

      of law.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 6 of 10
                                  3. Trial Court’s Authority
[10]   Harris, therefore, directly addresses Pettis’s first argument—that the trial court

       was without authority to modify the 2010 Order. Pettis is classified as a

       sexually violent predator by operation of law—a determination made by our

       General Assembly, rather than the trial court. We see no error in the trial

       court’s decision in this case to correct the 2010 Order to reflect Pettis’s status,

       and our analysis is not affected by the fact that the trial court acted sua sponte.

       It was merely following the rules put in place by our legislature and our

       Supreme Court.


                            4. Res Judicata/Law of the Case
[11]   Similarly, we see no issue with respect to the doctrine of res judicata. Res

       judicata “is a legal doctrine intended ‘to prevent repetitious litigation of disputes

       that are essentially the same, by holding a prior final judgment binding against

       both the original parties and their privies.’” Ind. State Ethics Comm’n v. Sanchez,

       18 N.E.3d 988, 993 (Ind. 2014) (quoting Becker v. State, 992 N.E.2d 697, 700

       (Ind. 2013)). In other words, res judicata is a doctrine that binds the parties (and

       their privies); it does not bind the court. In this case, however, the State did not

       ask the trial court to revisit the 2010 Order; the trial court did so of its own

       volition.


[12]   The scenario presented by this case is more properly analyzed under the law of

       the case doctrine, which provides that even if a trial court’s judgment is

       erroneous, “it nevertheless becomes the law of the case and thereafter binds the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 7 of 10
       parties unless successfully challenged on appeal.” Landowners v. City of Fort

       Wayne, 622 N.E.2d 548, 549 (Ind. Ct. App. 1993). The law of the case

       doctrine, however, is a discretionary rule of practice. Id.


               This doctrine expresses the practice of courts generally to refuse
               to reopen what has previously been decided. A court has the power
               to revisit prior decisions of its own . . . in any circumstance, although as
               a rule courts should be loathe to do so in the absence of
               extraordinary circumstances.


       Id. (emphasis added); see also State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994)

       (noting that “this Court has always maintained the option of reconsidering

       earlier cases in order to correct error”).


[13]   Here, Pettis asked the trial court to modify his sentence. In the process of

       considering that request, the trial court determined that the 2010 Order had

       been erroneous in light of our Supreme Court’s ruling in Harris. The trial court

       then exercised its power to revisit that earlier decision and correct it. We

       cannot say that it erred in doing so, and decline to reverse for this reason.


                                           5. Ex Post Facto
[14]   Pettis also argues that his classification as a sexually violent predator violates

       the prohibition against ex post facto punishments. “In general, the Ex Post

       Facto Clause [of the Indiana Constitution] 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.” Harris, 949

       N.E.2d at 809.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 8 of 10
[15]   The Harris Court considered whether retroactive application of the 2007

       amendment to Harris, which had the effect of converting his ten-year

       registration requirement into a lifetime registration requirement, violated the ex

       post facto clause of the Indiana Constitution. As in the case before us, the

       conduct leading to Harris’s conviction occurred before the sexually violent

       predator designation even existed. After engaging in an analysis of all relevant

       factors,3 our Supreme Court found that Harris’s ex post facto claim failed,

       primarily because “the Act’s requirements are not excessive in relation to its

       legitimate, regulatory purpose” of public safety. Id. at 813. The Harris Court

       concluded that the Act was nonpunitive when applied to Harris and, as a result,

       its application to him was not unconstitutional.


[16]   Pettis does not attempt to distinguish his case from Harris, and we see no

       meaningful way of doing so. As in Harris, Pettis’s classification as a sexually

       violent predator pursuant to the 2007 amendment to the Act converted his ten-

       year registration requirement into a lifetime registration requirement. 4 Our

       Supreme Court’s analysis of the ex post facto factors in Harris applies identically

       to this case, leading us to an identical result. The Act is nonpunitive when



       3
         The seven factors to be considered in determining whether a law is an ex post facto punishment are:
       (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been
       regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its
       operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the
       behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally
       be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose
       assigned. Harris, 949 N.E.2d at 810.
       4
        Pettis does not dispute that, as in Harris, he was already required to register because of his prior convictions
       when the 2007 amendment to the Act was passed.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016              Page 9 of 10
       applied to Pettis and, as a result, its application to him was not

       unconstitutional.


[17]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-487 | December 29, 2016   Page 10 of 10