MEMORANDUM DECISION
May 12 2015, 9:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Cleverly Lockhart Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cleverly Lockhart, May 12, 2015
Appellant-Petitioner, Court of Appeals Case No.
33A04-1412-MI-602
v. Appeal from the
Henry Circuit Court
State of Indiana, The Honorable Kit C. Dean Crane,
Judge
Appellee-Respondent.
Cause No. 33C01-1410-MI-109
Kirsch, Judge.
[1] Cleverly Lockhart appeals the trial court’s order dismissing his petition to be
removed from the Indiana Sex Offender Registry. He raises the sole issue of
whether the trial court erred in dismissing his petition on the basis that he failed
to state a claim upon which relief may be granted.
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[2] We affirm.
Facts and Procedural History
[3] During the months of January through March 1994, Lockhart sexually abused
an eleven-year-old boy. On June 28, 1994, Lockhart was charged with three
counts of Class B felony child molesting and one count of Class C felony child
molesting and was later convicted by a jury of all the counts. On direct appeal,
his convictions were affirmed, but this court vacated his sentence and remanded
for resentencing. On remand, the trial court sentenced Lockhart to fifty-three
years executed, and this court affirmed the denial of Lockhart’s subsequent
motion to correct erroneous sentence. Lockhart is currently incarcerated in the
New Castle Correctional Facility, and his earliest release date is July 21, 2021.
[4] On July 1, 1994, the Indiana Sex Offender Registration Act (“SORA”) went
into effect. SORA requires individuals convicted of certain crimes to register as
a sex or a violent offender and for their information to appear on the Indiana
Sex Offender Registry, which is accessible on the Internet. In Wallace v. State,
905 N.E.2d 371 (Ind. 2009), our Supreme Court held that SORA violated the
Ex Post Facto Clause of the Indiana Constitution as applied to a defendant who
had committed his offenses, been convicted, and served his sentence prior to
SORA becoming effective. Id. at 384.
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[5] On June 17, 2014, Lockhart received a notice1 from the Indiana Department of
Correction (“DOC”), indicating the DOC’s intent to forward Lockhart’s
“information to the appropriate authority so that [his] name and the
accompanying information may be added to the State of Indiana Sex and
Violent Offender Registry.” Appellant’s App. at 8. The notice also stated that
Lockhart would be provided “additional information regarding your
requirement to register with the local County Sheriff and other information
regarding your obligations when your release documents are prepared and
presented to you shortly before your release” from the DOC. Id.
[6] On June 20, 2014, Lockhart wrote a letter to the DOC in accordance with the
administrative appeal procedure set out in the notice. In his letter, Lockhart
argued that Wallace barred the DOC from requiring him to register. He later
wrote to a Ms. Young at the DOC,2 and on August 26, 2014, she responded as
follows:
You should only be required to serve two years on parole as long [as]
you don’t violate. The registry laws may change before you[r] release
but as it stands now, you could be required to register unless you have
a court order stating you were removed from the registry. Parole could
still require you to register while on parole[.] [H]owever they usually
don’t for those people who have been removed [by] the courts.
Id. at 10.
1
We observe that this notice received from Lockhart was not signed by a DOC staff member.
2
It is unclear what position Ms. Young holds at the DOC, or whether she is a DOC official or employee of a
contractor who provides services at the facility where Lockhart is being held.
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[7] Lockhart filed a “Verified Petition to Remove Defendant From Indiana’s Sex
Offender Registry” pursuant to Indiana Code section 11-8-8-22 and relying on
Wallace. Id. at 1-2. At the time the petition was filed, Lockhart did not appear
on the Indiana Sex Offender Registry, and the State requested the trial court to
take judicial notice of that fact. The State filed a motion to dismiss Lockhart’s
petition for failure to state a claim on which relief may be granted pursuant to
Indiana Trial Rule 12(B)(6) and contended that the trial court could not grant
Lockhart’s requested relief because his name did not appear on the Sex
Offender Registry. The trial court granted the State’s motion to dismiss, stating
that, because Lockhart did not appear on the Sex Offender Registry, “he cannot
be granted removal from the Registry or relief from any registration obligations
and the State of Indiana is not imposing any ex post facto punishment on him.”
Id. at 24.
[8] After the trial court’s order was issued, Lockhart filed a response to the State’s
motion to dismiss that the trial court treated as a motion to reconsider. In it,
Lockhart acknowledged that his name did not appear on the registry, but
claimed his petition was ripe for determination because of the notice he
received from the DOC that it intended to provide his information to the Sex
Offender Registry. The trial court denied this motion. Lockhart now appeals.
Discussion and Decision
[9] Lockhart appeals the trial court’s grant of the State’s motion to dismiss his
petition under Indiana Trial Rule 12(B)(6). We review the trial court’s grant or
denial of such a motion to dismiss pursuant to Trial Rule 12(B)(6) de novo.
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Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App. 2014) (citing
Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)),
trans. denied. 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.’” Veolia Water Indpls., LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 4 (Ind.
2014) (quoting Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind.
2006)), clarified on reh’g, 12 N.E.3d 240. When evaluating the trial court’s grant
or denial of a Trial Rule 12(B)(6) motion, we accept as true the facts alleged in
the complaint, and only consider the pleadings in the light most favorable to the
plaintiff and draw every reasonable inference in favor of the non-moving party.
Snyder, 20 N.E.3d at 550. We will affirm a dismissal under Trial Rule 12(B)(6)
only if it is apparent that the facts alleged in the complaint are incapable of
supporting relief under any set of circumstances. Id. (citing LBM Realty, LLC v.
Mannia, 981 N.E.2d 569, 577 (Ind. Ct. App. 2012)).
[10] Lockhart argues that the trial court erred in dismissing his petition to remove
his name from the Sex Offender Registry. He contends that, at the time he was
notified of the State’s intention to provide his information to the Sex Offender
Registry, he was subject to ex post facto punishment due to the fact that his
criminal offenses were committed prior to SORA becoming effective. He
alleges that requiring him to register imposes retroactive punishment when his
crimes were committed before SORA required registration.
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[11] Lockhart filed his petition to remove his name from the Sex Offender Registry
pursuant to Indiana Code section 11-8-8-22, which provides the procedure by
which a person who has been designated a sex offender may petition the trial
court to remove the person’s designation as a sex offender and order the
removal of all information from the Sex Offender Registry or to require the
person to register under less restrictive conditions. Ind. Code § 11-8-8-22(c).
The statute states that the petition may be based on a claim that the registration
requirement constitutes ex post facto punishment. I.C. § 11-8-8-22(j). Under its
plain language, Indiana Code section 11-8-8-22 provides the procedures for
removal from the Sex Offender Registry to those individuals who have already
been designated as sex offenders and have been required to register as such.
I.C. § 11-8-8-22(b), (c). At the time that Lockhart filed his petition, his name
did not appear on the Sex Offender Registry, nor did he even allege that it did.
[12] Lockhart alleges that the State imposed ex post facto punishment on him when
it sent him notice that it intended, in the future, shortly before his release from
incarceration, which was still at least six years away, to require him to register
as a sex offender. At the time he filed his petition, no registration requirement
was presently being imposed on him, nor would such a registration requirement
be imposed in the immediate future. Thus, when Lockhart filed his petition to
remove his name from the Sex Offender Registry, he was not subject to any ex
post facto punishment. As Lockhart’s petition sought only that his name be
removed from the Sex Offender Registry and not declaratory or injunctive relief
preventing the DOC from requiring him to register in the future, his petition
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does not on its face state a claim for relief under Indiana Code section 11-8-8-
22. We, therefore, conclude that the trial court did not err in dismissing
Lockhart’s petition pursuant to Trial Rule 12(B)(6) for failure to state a claim
upon which relief may be granted.
[13] Affirmed.
[14] Vaidik, C.J., and Bradford, J., concur.
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