Sep 22 2015, 8:59 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Gregory F. Zoeller
Stone Law Office & Legal Research Attorney General of Indiana
Anderson, Indiana
Tyler G. Banks
Allen R. Stout Deputy Attorney General
Stout Law Group, P.C. Indianapolis, Indiana
Angola, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kile Richard Stockert, September 22, 2015
Appellant-Defendant, Court of Appeals Case No.
76A04-1504-CR-144
v. Appeal from the Steuben Circuit
Court
State of Indiana, The Honorable Allen N. Wheat,
Appellee-Plaintiff. Judge
Trial Court Cause No.
76C01-1312-FB-1093
Brown, Judge.
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[1] Kile Richard Stockert (“Stockert”) appeals the trial court’s denial of his petition
for declaratory judgment seeking to overturn the Department of Correction
(“DOC”) designation that he is a sexually violent predator and offender against
children (“SVP”). He raises one issue which we revise and restate as whether
the court erred in denying his petition for declaratory judgment. We affirm.
Facts and Procedural History
[2] On December 9, 2013, the State charged Stockert with Count I, rape as a class
B felony; Counts II-IV, criminal deviate conduct as class B felonies; Counts V-
VI, criminal confinement as class D felonies; and Count VII, strangulation as a
class D felony. On March 26, 2014, Stockert entered a plea of guilty to Count
IV, criminal deviate conduct as a class B felony, and the six remaining charges
were dismissed.1 On June 16, 2014, the trial court held a sentencing hearing, at
which it entered a judgment of conviction on Count IV, criminal deviate
conduct as a class B felony, and sentenced Stockert to six years in the DOC
with three years executed and three years suspended with two years of
probation. The court noted that Stockert “pled guilty . . . to the offense of
criminal deviate conduct,” and stated that it was required to “order and direct
that you register and be on the sex offender registry for ten (10) years, Sir,
because of the nature of this offense. The court has, I’m not implying I
1
The record does not contain a copy of the guilty plea transcript.
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wouldn’t put you on it anyway, the court doesn’t have any discretion in that
regard.” Transcript at 14-16.
[3] The trial court’s Judgment of Conviction, Sentence and Commitment Order did
not mention any reporting requirements applicable to Stockert following the
completion of his sentence. The presentence investigation report (“PSI”) noted
that Stockert was not an offender against children, was not a credit restricted
felon, and would be required to register as a sex offender or violent offender for
ten years following his release from incarceration. On the day of sentencing,
the probation department provided Stockert with a form titled “Special
Conditions for Adult Sex Offenders.” Appellant’s Appendix at 28. The form
contained conditions classifying sex offenders as sexually violent predators, not
sexually violent predators, and offenders against children. Condition 2, which
“[a]pplies to sex offenders who are NOT sexually violent predators,” was
checked on the form. Id. Condition 1, which “[a]pplies only to sexually violent
predators,” was not checked. Id.
[4] On December 10, 2014, the DOC sent Stockert a “Notice of Intent to Provide
Information to Sex and Violent Offender Registry and Right to Appeal,” which
notified him that he was an SVP and would be placed on the Sex and Violent
Offender Registry (“Registry”) for life. Stockert appealed his SVP status, and,
on January 16, 2015, the DOC denied his appeal.
[5] On February 24, 2015, Stockert filed a petition for declaratory judgment
challenging his classification as an SVP and requesting that the court “sustain[]
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its original judgment of conviction . . . and direct[] the [DOC] to remove
designations against [Stockert] as a sexually violent predator, as an offender
against children, and the requirement to register as a sex offender for life.” Id.
at 20.
[6] On March 12, 2015, the court held a hearing on Stockert’s petition for
declaratory judgment, and, on March 16, 2015, it denied the petition. The
order states in part:
6. Once at the IDOC, Stockert by virtue of the crime to
which he had plead guilty, was advised that he was a
sexually violent predator, and, upon being released from
incarceration would be required to register as a sex
offender for life rather than for ten (10) years.
7. At all times relevant hereto Stockert was, in fact, a
sexually violent predator pursuant to Ind. Code 35-38-1-
7.5(b)(1)(B).
8. Stockert contends that the case Becker v.State, 992 N.E.2d
697 (Ind. 2013) is controlling in his request for relief from
this Court.
*****
18. Stockert contends that the IDOC cannot now classify him
as a sexually violent predator because the probation order
approved by the Court designated him as a non-sexually
violent predator. Stockert continues with his argument
that since the State failed to appeal this erroneous
classification by the trial court, under the doctrine of res
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judicata, the IDOC is now without lawful authority to
correct this error sua sponte.
19. The Court concludes that the facts in Becker are
distinguishable from the facts in the case at bar. In Becker,
the trial court in a contested post-judgment hearing
conducted in 2008 found that the statutory amendments to
Ind. Code 35-38-1-7.5 represented an unconstitutional ex
post facto law as applied to Mr. Becker. The State did not
appeal this ruling. Therefore, the doctrine of res judicata
prevented the State from re-litigating this very issue on
appeal following a second hearing conducted in 2011.
20. Unlike Becker, in the case at bar, there has been no post-
judgment/sentencing hearing from which the State failed
to appeal an adverse ruling. Stockert’s status as a sexually
violent predator was determined by “operation of law” the
second that the Court accepted his guilty plea to the crime
of criminal deviate conduct, and entered judgment in
accordance therewith on June 16, 2014. This Court was
without lawful authority to classify, or not classify,
Stockert as a sexually violent predator. Incorrectly
marking a box on a probation order does not alter this fact.
As observed by the Court in the case Flanders v. State, 955
N.E.2d 732 (Ind. [Ct.] App. 2011)[, reh’g denied, trans.
denied], in discussing the recent Supreme Court decision of
Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011), the Court
observed at page 747:
“… At some point after the 2007 amendment to
Indiana Code Section 35-38-1-7.5, the DOC
informed Harris that he was an SVP and had to
register for life. Harris filed a complaint arguing
that the DOC lacked authority to make an SVP
determination and that he should be required to
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register for only ten years. The trial court granted
declaratory and injunction [sic] relief for Harris, and
the DOC appealed. We affirmed, but the supreme
court granted transfer and reversed.
The court noted that previous versions of the statute
required the trial court to make an SVP
determination at sentencing, but since 2007, the
classification occurs by operation of law if the
person has committed an enumerated offence
[sic]… The statute does not grant the DOC any
authority to classify or reclassify. SVP status under
Indiana Code Section 35-38-1-7.5(b) is determined
by the statute itself…” (Citations omitted;
Quotation marks omitted)
Appellant’s Appendix at 7, 9-11.
Discussion
[7] The issue is whether the court erred in denying Stockert’s petition for
declaratory judgment. At the time of the hearing, Ind. Code § 35-38-1-7.5(b)(1)
provided in relevant part:
(b) A person who:
(1) being at least eighteen (18) years of age, commits an
offense described in:
(B) IC 35-42-4-2 (before its repeal on July 1, 2014);
*****
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is a sexually violent predator. Except as provided in subsection
(g) or (h), a person is a sexually violent predator by operation of
law if an offense committed by the person satisfies the conditions
set forth in subdivision (1) or (2) and the person was released
from incarceration, secure detention, probation, or parole for the
offense after June 30, 1994.
*****
(d) At the sentencing hearing, the court shall indicate on the
record whether the person has been convicted of an offense that
makes the person a sexually violent predator under subsection
(b).
*****
(f) If a person is a sexually violent predator:
(1) the person is required to register with the local law
enforcement authority as provided in IC 11-8-8; and
(2) the court shall send notice to the department of
correction.
(g) A person who is a sexually violent predator may petition the
court to consider whether the person should no longer be
considered a sexually violent predator. The person may file a
petition under this subsection not earlier than ten (10) years after:
(1) the sentencing court or juvenile court makes its
determination under subsection (e); or
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(2) the person is released from incarceration or secure
detention.[2]
Ind. Code § 11-8-8-19(b) provided that “[a] sex or violent offender who is a
sexually violent predator is required to register for life.”3
[8] Stockert argues that the State’s failure to object to the statements in his PSI and
special probation conditions, which indicated that he was a sex offender rather
than an SVP, amounts to invited error. He contends that the invited error
doctrine should “prevent the [S]tate, through the DOC, from altering the
punishment imposed” on him. Appellant’s Brief at 7. He also contends that res
judicata should bind the DOC to “the determinations made by the trial court
that Stockert was not a sexually violent predator . . . since any error was invited
by the prosecutor in not objecting to such determination at the sentencing
hearing.” Id. at 8. He states that Ind. Code 35-38-1-7.5(d) requires a trial court,
at sentencing, to “indicate on the record whether the person has been convicted
of an offense that makes the person a sexually violent predator under subsection
(b),” and that the trial court made no such finding at the sentencing hearing. Id.
at 9 (quoting Ind. Code § 35-38-1-7.5(d)). Stockert maintains that the “necessity
2
Subsequently amended by Pub. L. No. 158-2013, § 394 (eff. July 1, 2014); Pub. L. No. 168-2014, § 57 (eff.
July 1, 2014).
3
Subsequently amended by Pub. L. No. 158-2013, § 176 (eff. July 1, 2014); Pub. L. No. 168-2014, § 23 (eff.
July 1, 2014); Pub. L. No. 5-2015, § 33 (eff. April 15, 2015).
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for the trial judge to determine that a defendant is a sexually violent predator
trumps [subsection (b)].” Id.
[9] The State’s position is that Stockert is an SVP by operation of law and that
“neither the trial judge, nor the probation department has the authority to make
an SVP determination.” Appellee’s Brief at 6. It contends that, even if the trial
court prescribed a ten-year registration requirement, the sentence would have to
be vacated due to its illegality, that the sentencing order’s silence regarding
Stockert’s registration did not provide it with an adverse ruling from which it
could object, and that the State was not a party to Stockert’s probation, which
shows that the invited error doctrine does not apply.
[10] We find instructive Nichols v. State, 947 N.E.2d 1011 (Ind. Ct. App. 2011), reh’g
denied. In that case, Nichols pleaded guilty, pursuant to a plea agreement, to
three counts of child molesting as class C felonies. Nichols, 947 N.E.2d at 1014.
The plea agreement recited each of the statutory requirements for sex offender
registration for a ten-year period or for life. Id. The trial court accepted the
plea, sentenced Nichols, and issued an order stating that Nichols would be
required to register as a sex offender for ten years. Id. The DOC later notified
the trial court that its order providing for the ten-year registration period
appeared to be in error and it had determined that Nichols would be required to
register for life. Id. Nichols filed a Motion for Correction of Sex Offender
Registry, pointing to the terms of the plea agreement and sentencing order and
requesting that the trial court order the DOC to revise his status on the Registry
to a ten-year period. Id. The trial court denied Nichols’s motion. Id. On
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appeal, Nichols argued that he must be required to register as a sex offender for
ten years because the DOC, not the trial court, imposed the lifetime registration
requirement upon him, and this was contrary to the court’s sentencing order.
Id. at 1016. We held that “placement on the Registry is mandatory, and the
[Sex Offender Registration Act (the “Act”)] affords neither the trial court nor
the DOC any discretion in the matter of the registration requirements.” Id. at
1017. We also held that plea agreements have no effect on operation of the
Act, that the length of the applicable reporting period is determined by the Act
itself and not by any plea agreement, the trial court, or the DOC, and that the
trial court did not abuse its discretion in denying Nichols’s motion. Id. at 1017.
[11] By virtue of his 2014 conviction for criminal deviate conduct as a class B felony,
Stockert is an SVP by operation of law under Ind. Code 35-38-1-7.5(b) and is
required to register for life. See Ind. Code § 11-8-8-19(b) (“[a] sex or violent
offender who is a sexually violent predator is required to register for life”). The
length of Stockert’s required reporting period is determined by the applicable
statutes and not by the trial court or the DOC.
[12] Based on the record and Ind. Code § 35-38-1-7.5(b) and § 11-8-8-19(b), we
conclude that the trial court did not err in denying Stockert’s petition for
declaratory judgment. See Nichols, 947 N.E.2d at 1017 (holding that the
applicable reporting period is determined by the statutes and not by the trial
court or the DOC); see also Lemmon v. Harris, 949 N.E.2d 803, 808 (Ind. 2011)
(stating “under the 2007 Amendment, the Legislature had changed the Act
from requiring the court to determine SVP status at the sentencing hearing to
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the ‘automatic designation of SVP status,’” and that “[a]t 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”); Vickery v. State, 932
N.E.2d 678, 683 (Ind. Ct. App. 2010) (explaining that a conviction for an
enumerated crime under the statute establishes a defendant’s status as an SVP
“by operation of law”); Marlett v. State, 878 N.E.2d 860, 870 (Ind. Ct. App.
2007) (noting that convictions for certain crimes mandate an automatic sexually
violent predator finding), trans. denied.
Conclusion
[13] For the foregoing reasons, we affirm the trial court’s denial of Stockert’s
petition for declaratory judgment.
[14] Affirmed.
Riley, J., and Altice, J., concur.
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Kile Richard Stockert v. State of Indiana
Combined Opinion