FILED
Aug 21 2018, 9:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael D. Dean ROBERT CARTER:
Gibson Law Office Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathan Healey, August 21, 2018
Appellant-Petitioner, Court of Appeals Case No.
76A03-1711-MI-2681
v. Appeal from the Steuben Circuit
Court
Robert Carter, Commissioner of The Honorable Allen N. Wheat,
the Indiana Department of Judge
Corrections, et al., Trial Court Cause No.
Appellees-Respondents. 76C01-1705-MI-116
Robb, Judge.
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Case Summary and Issue
[1] Nathan Healey pleaded guilty to criminal confinement, a Class D felony.
Following his release from the Indiana Department of Correction (“DOC”), the
DOC required Healey to register as a sex offender, even though Healey did not
plead to the circumstances in which criminal confinement constitutes a sex
offense. Having registered as a sex offender in the years since his release,
Healey brought this declaratory judgment action seeking relief from the DOC’s
determination that he must register as a sex offender. The trial court denied
Healey’s petition along with a subsequent motion to correct errors. Healey now
appeals raising the sole issue of whether the trial court erred in denying his
petition for declaratory relief. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] On July 4, 2007, Healey was charged with criminal confinement against a
child, a Class C felony, and battery against a child resulting in bodily injury, a
Class D felony. Seventeen months later, an additional count was added to the
information charging Healey with criminal confinement, a Class D felony. In
May 2009, Healey pleaded guilty to criminal confinement, a Class D felony,
and, pursuant to the written plea agreement, the remaining charges were
dismissed. Healey was sentenced to three years with all but 270 days
suspended.
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[3] After Healey served his executed sentence, the DOC required him to register as
a sex offender for life because the victim of Healey’s offense was less than
“twelve (12) years of age at the time of the crime.” Ind. Code § 11-8-8-19(c)
(2007); see Appellant’s Second Amended Appendix, Volume 2 at 16. Healey
registered on June 16, 2009.
[4] On May 3, 2017, Healey filed a verified petition for declaratory relief, asking to
be relieved of his duty to register as a sex offender because he never pleaded to
the age of the victim. Healey named the commissioner of the DOC, Robert
Carter; the Steuben County prosecutor; and the Steuben County sheriff as
respondents. Carter responded to Healey’s petition through counsel, the
Indiana Attorney General, seeking dismissal, or in the alternative, denial of
relief.1
[5] The parties waived a formal evidentiary hearing and instead submitted a joint
stipulation of facts to the trial court. On September 6, 2017, the trial court
issued its Order:
1. On December 30, 2008 Healey was charged with having
committed the offense of criminal confinement as set forth at
Ind. Code 35-42-3-3(a)(1), a Class D Felony.
1
The other named respondents, Jeremy T. Musser, Steuben County Prosecuting Attorney, and Tim R.
Troyer, Steuben County Sheriff, do not participate in this appeal.
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2. The crime for which Healey was charged with having
committed [sic] occurred on July 4, 2007.
3. On July 4, 2007, Ind. Code 35-42-3-3(a)(1) provided as
follows:
“(a) A person who knowingly or intentionally: (1) confines
another person without the other person’s consent;
…commits criminal confinement. Except as provided in
subsection (b), the offense of criminal confinement is a Class
D Felony.”
4. The criminal charge identified the victim as “Z.M.” The age
of Z.M. was not set forth in the criminal charge.
5. On July 4, 2007, Ind. Code 11-8-8-4.5 set forth those crimes
for which if a person should be convicted of having
committed [sic] would mandate the person to register as a sex
offender.
6. Ind. Code 11-8-8-4.5(12) provided as follows:
“(12) Criminal confinement (IC 35-42-3-3), if the victim is less
than eighteen (18) years of age, and the person who confined
or removed the victim is not the victim’s parent or guardian.”
7. On May 9, 2009, Healey entered a plea of guilty to having
committed the offense of criminal confinement as charged
under the provisions of Ind. Code 35-42-3-3(a)(1), and
thereafter was sentenced in accordance with his Plea
Agreement.
8. Healey does not contend that he was unaware of the fact that
the victim of his crime was under the age of eighteen (18)
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years. Further, Healey does not contend that he was the
parent or guardian of Z.M.
9. Healey argues that requiring him to register as a sex offender
is a penalty or punishment that is based upon a fact to which
he did not plead guilty.
10. It is true that the State’s charging information regarding
Count III was silent as to the age of Z.M., and to his
relationship to Z.M.
11. Ind. Code 35-42-3-3(a)(1) does not set forth the age of the
victim as an element of the offense which must be proven by
the State by proof beyond a reasonable doubt.
12. Ind. Code 35-42-3-3(a)(1) does not set forth the relationship of
the Defendant to the victim as being an element of the offense
of criminal confinement which must be proven by the State by
proof beyond a reasonable doubt.
13. In the case of Nichols v. State, 947 N.E.2d 1011 (Ind. [Ct.]
App. 2011) the Court at page 1017 held:
“The Sex Offender Registration Act requires that the DOC
maintain a registry of sex offenders, and requires that
offenders register with the Department. Placement on the
Registry is mandatory, and the Act affords neither the trial
court nor the DOC any discretion in the matter of the
registration requirement. …Plea agreements have no effect on
operation of the Act…” (Citations omitted) (Quotation marks
omitted)
14. In accordance with existing Indiana Law the moment the trial
court entered judgment upon Healey’s plea of guilty to the
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crime of criminal confinement his fate was sealed regarding
whether he was or was not required to register as a sex
offender all in accordance with law barring any constitutional
infirmities with the enacted legislation.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED as follows:
1. [Carter’s] Motion to Dismiss shall be denied.
2. Healey’s Petition for Declaratory Relief shall be denied.
Appellant’s Second Amended App., Vol, 2 at 39-42. Healey filed a motion to
correct error which was similarly denied. Healey now appeals.
Discussion and Decision
[6] Healey contends the trial court abused its discretion by denying his petition for
declaratory judgment because the trial court may review the constitutionality of
agency decisions and because the DOC’s registration requirement violated his
Sixth Amendment right to a trial by jury.
I. Standard of Review
[7] We review a trial court’s ruling on a motion to correct error for an abuse of
discretion. Kashman v. Haas, 766 N.E.2d 417, 419 (Ind. Ct. App. 2002). And
where, as here, the issues involve matters of law, we review the trial court’s
decision de novo. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App.
2010), trans. denied.
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II. Judicial Review
[8] Healey claims the trial court erred in concluding “that it did not have authority
to rule on the constitutionality of a sex offender registration decision made by
the [DOC].” Appellant’s Brief at 11. Specifically, the trial court concluded:
14. In accordance with existing Indiana Law the moment the trial
court entered judgment upon Healey’s plea of guilty to the
crime of criminal confinement his fate was sealed regarding
whether he was or was not required to register as a sex
offender all in accordance with law barring any constitutional
infirmities with the enacted legislation.
Appellant’s Second Amended App., Vol. 2 at 42. Viewed in the context of
Healey’s Sixth Amendment claim, the trial court’s order could be read as
concluding it lacked subject-matter jurisdiction to review a DOC action,
“barring any constitutional infirmities with the enacted legislation.” Id.
[9] In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and
Sexually Violent Offenders Registration Act to encourage individual states to
adopt sex offender registration statutes. Wallace v. State, 905 N.E.2d 371, 374
(Ind. 2009). Soon thereafter, the Indiana General Assembly adopted the Sex
Offender Registration Act (“SORA”), also known as “Zachary’s Law,” which
required persons convicted of certain sex crimes to register as “sex offender[s].”
Id. at 375 (citing Act of March 2, 1994, Pub.L. No. 11-1994, § 7). SORA
originally applied to eight crimes and included both registration and notification
provisions. Id. Since then, SORA has been amended several times, and
actively expanded “in both breadth and scope.” Id.
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[10] The General Assembly delegated administrative authority over SORA to the
DOC. See Ind. Code § 11-8-2-12.4. As an administrative agency, the DOC is
governed generally by the Indiana Administrative Orders and Procedures Act
(“IAOPA”). Pierce v. State Dep’t of Correction, 885 N.E.2d 77, 88 (Ind. Ct. App.
2008). IAOPA provides the “exclusive means for judicial review of an agency
action.” Ind. Code § 4-21.5-5-1. The burden of demonstrating the invalidity of
agency action is on the party asserting its invalidity. Ind. Code § 4-21.5-5-14(a).
And, a reviewing court shall grant relief only if it determines that a person
seeking judicial relief has been prejudiced by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
Ind. Code § 4-21.5-5-14(d).
[11] The IAOPA expressly exempts “certain agency actions” of the DOC from
administrative judicial review. Ind. Code § 4-21.5-2-5(6) (exempting “[a]n
agency action related to an offender within the jurisdiction of the department of
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correction.”). However, nothing in this provision prevents judicial review over
alleged violations of constitutional protections and thus courts retain subject-
matter jurisdiction to resolve controversies alleging DOC interference with a
constitutional right, privilege, or immunity. Ratliff v. Cohn, 693 N.E.2d 530, 548
(Ind. 1998).
[12] Applied here, these statutes mean the trial court retained subject-matter
jurisdiction to resolve Healey’s constitutional claim alleging a violation of his
Sixth Amendment right to a jury trial. Kirby v. State, 95 N.E.3d 518, 521 (Ind.
2018) (noting declaratory judgment actions are appropriate vehicle for a
constitutional challenge of sex offender registration requirements); Greer v. Buss,
918 N.E.2d 607, 615 (Ind. Ct. App. 2009) (concluding declaratory judgment
action was appropriate where defendants challenged sex offender registration
requirement on constitutional grounds). Therefore, to the extent the trial
court’s order can be read to the contrary, it is erroneous.
II. The Sixth Amendment
[13] Having established the trial court retained subject-matter jurisdiction over
Healey’s claim, we proceed to its merits. Again, Healey alleges his registration
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requirement violates his Sixth Amendment right to a trial by jury.2 Healey’s
petition for declaratory judgment alleged:
[Healey] is entitled to declaratory judgment that he not be
required to register as a sex offender. This is because his
registration requirement constitutes a punishment or penalty that
is based on a fact that he did not plead guilty to, and that was not
found by a jury beyond a reasonable doubt.
Appellant’s Second Amended App., Vol. 2 at 12, ¶ 9.
[14] In support of his request for a declaratory judgment, Healey cited Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
Appellant’s Second Amended App., Vol. 2 at 11, ¶ 7. In Apprendi, the Supreme
Court declared that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S.
at 490. Four years later, Blakely v. Washington clarified that the statutory
maximum referred to in Apprendi is “the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted
2
Although the Indiana Constitution Article 1, section 19 also confers the “right to have a jury determine the
law and the facts,” Healey made no separate argument based on the Indiana Constitution. Thus, Healey has
forfeited any such claim. Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998).
We also note, and Healey concedes, criminal confinement became a “sex offense” when Indiana Code
section 11-8-8-4.5 was amended effective July 1, 2007, to define a sex offender as a person who was convicted
of criminal confinement “if the victim is less than eighteen (l8) years of age, and the person who confined or
removed the victim is not the victim’s parent or guardian.” See Appellant’s Second Amended App., Vol. 2 at
11, ¶ 3. Healey’s offense occurred July 4, 2007. Therefore, Healey’s claim does not implicate constitutional
prohibitions against ex post facto laws.
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by the defendant.” 542 U.S. at 303 (emphasis omitted). And, most recently,
the Supreme Court made clear that “[i]n stating Apprendi’s rule, [it had] never
distinguished one form of punishment from another. Instead, [the Supreme
Court’s] decisions broadly prohibit judicial factfinding that increases maximum
criminal sentence[s], penalties, or punishment[s.]” S. Union Co. v. United States,
567 U.S. 343, 350 (2012) (quotation marks omitted).
[15] Pursuant to Apprendi and its progeny, Healey argues the registration
requirement imposes a penalty or punishment for the purposes of the Sixth
Amendment and thus the underlying facts supporting the registration
requirement—a determination the victim was under eighteen years old and that
Healey was not the victim’s parent or guardian—must have been admitted by
him as part of his plea agreement. In turn, the State argues Healey’s
registration requirement is not part of Healey’s sentence but a collateral
consequence and Healey’s registration requirement was therefore an operation
of SORA itself. We agree with the State.
[16] First, we note Healey has failed to provide authority, or cogent argument, for
the proposition that Apprendi and its progeny extend beyond judicial fact-
finding. After all, it was “judicial fact-finding that concerned the [Supreme]
Court in Blakely.” Smylie v. State, 823 N.E.2d 679, 683 (Ind. 2005), cert. denied,
546 U.S. 976 (2005); see also S. Union Co., 567 U.S. at 350 (noting Apprendi and
its progeny “broadly prohibit judicial factfinding that increases maximum
criminal sentence[s], penalties, or punishment[s.]”). The issue presented here is
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not one of judicial fact-finding but rather a determination of the DOC pursuant
to SORA.
[17] Secondly, we are unconvinced Healey’s registration requirement constitutes a
penalty or punishment for the purposes of the Sixth Amendment. When the
legislature imposes restrictions on people convicted of certain crimes, those
restrictions are not part of a sentence, but are collateral consequences. Kirby, 95
N.E.3d at 520. Indeed, “[a] criminal sentence is the punishment ordered by the
trial court after conviction—nothing more.” Id. (citing Black’s Law Dictionary
1569 (10th ed. 2014) (defining “sentence” as “[t]he judgment that a court
formally pronounces after finding a criminal defendant guilty”)). “Sex-offender
registration itself is thus a collateral consequence.” Id. (citing Chaidez v. United
States, 568 U.S. 342, 349 n.5 (2013)). Therefore, we conclude Healey’s
registration requirement was a collateral consequence of his conviction for
criminal confinement and not a penalty or punishment for the purposes of the
Sixth Amendment.
[18] Healey pleaded guilty to criminal confinement pursuant to Indiana Code
section 35-42-3-3(a)(1) (2007). The underlying charging information provided:
The undersigned says that on or about July 4, 2007 at and in
Steuben County, State of Indiana. Nathan James Healey did
knowingly or intentionally confine another person, to-wit: Z.M.,
without the consent of said person, all of which is contrary to the
form of the statutes in such cases made and provided by I.C. 35-
42-3-3(a)(1) and against the peace and dignity of the State of
Indiana.
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Appellant’s Second Amended App., Vol. 2 at 27. At the time of Healey’s
offense, Indiana Code section 35-42-3-3 (2006) provided:
(a) A person who knowingly or intentionally:
(1) confines another person without the other person’s
consent;
...
commits criminal confinement. Except as provided in subsection
(b), the offense of criminal confinement is a Class D felony.
[19] Although the criminal confinement statute provided for an enhancement from a
Class D felony to a Class C felony where the victim of the crime was “less than
fourteen (14) years of age and is not the confining or removing person’s child,”
Ind. Code § 35-42-3-3(b)(1)(A) (2006), the legislature included the entire
criminal confinement statute when defining both “sex offender” and “sex or
violent offender.” Ind. Code § 11-8-8-4.5(a)(12) (2007); Ind. Code § 11-8-8-
5(a)(12) (2007). As discussed above, our legislature delegated administrative
authority over SORA to the DOC, see Ind. Code § 11-8-2-12.4 (listing duties of
the DOC), and the DOC is required to maintain the sex offender registry, Ind.
Code §§ 11-8-2-12.4(1)-(2), (5); 11-8-2-13. Having included the requirements
that criminal confinement constitutes a sex offense for purposes of the registry
only when the “victim is less than eighteen (18) years of age, and the person
who confined or removed the victim is not the victim’s parent or guardian,”
under Title 11 of the Indiana Code, our legislature delegated the authority to
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make the necessary factual determination to the DOC. Ind. Code § 11-8-8-
4.5(a)(12) (2007); Ind. Code § 11-8-8-5(a)(12) (2007). Quite simply, Healey
pleaded guilty to criminal confinement, his victim was less than eighteen years
old, and Healey was not the victim’s parent or guardian; therefore,
“[p]lacement on the Registry is mandatory, and the Act affords neither the trial
court nor the DOC any discretion in the matter of the registration
requirements.” Nichols v. State, 947 N.E.2d 1011, 1017 (Ind. Ct. App. 2011).
III. Healey’s Plea Agreement
[20] Comingled with his Sixth Amendment claim, Healey argues there were
insufficient facts to warrant his registration requirement where the underlying
charging information only provided the initials of the victim without providing
the victim’s age or relationship to Healey. As concluded above, because
Healey’s registration requirement was a collateral consequence to his conviction
without Sixth Amendment implications, there was no constitutional
requirement that he plead guilty to every fact warranting his registration
requirement. Even in the absence of a constitutional requirement, however, the
DOC cannot arbitrarily and capriciously designate sex offenders, and Healey
contends the record is insufficient to support his designation. We conclude the
record contained sufficient information for the DOC to determine Healey’s
registration requirement.
[21] When a person is convicted and sentenced to a term of imprisonment, as
Healey was here, the trial court is obliged to provide certain documents to the
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DOC. Ind. Code § 35-38-1-14. Among these documents, the trial court must
provide “any record made under IC 35-35-2,” Ind. Code § 35-38-1-14(a)(4),
which includes charging informations, Ind. Code § 35-35-2-1(a)(2). Moreover,
Indiana Code section 11-8-8-9(d)(2) provides that for any sex or violent offender
who is not committed to the DOC, the probation office of the sentencing court
must provide the DOC with the sentencing order and presentence investigation,
as well as “any other information required by the [DOC] to make a determination
concerning sex or violent offender registration.” (Emphasis added.) Having
utilized such broad language, we conclude the legislature intended the DOC to
look to any facts having a basis in the record to determine the offender’s
registration requirement.
[22] Healey was charged with criminal confinement against a child, a Class C
felony, but pleaded guilty to the charge of criminal confinement, a Class D
felony, naming “Z.M.” as the victim of the offense. Appellant’s Second
Amended App., Vol. 2 at 27. In the charge of criminal confinement against a
child, a Class C felony, the State alleged:
. . . Healey, did then and there recklessly, knowingly, or
intentionally confine or remove another person, to-wit [redacted]
a person less than fourteen (14) years of age, to-wit: 4 months
old, whose date of birth is 02/07/2007, and is not the confining
or removing person’s child, by force from one place to another.
Id. at 25. Although the victim’s name is redacted, considering the nature of the
charge and amended information, it appears the victim was also Z.M.
Moreover, Healey does not contend the victim was over eighteen years old, that
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he was the victim’s parent or guardian, or that Z.M. was not the same victim
for both charges. Although we do not view this as tantamount to a factual
concession, we see no reason to question the DOC’s determination. See Ind.
Code § 4-21.5-5-14(a) (“The burden of demonstrating the invalidity of agency
action is on the party to the judicial review proceeding asserting invalidity.”).
Accordingly, we conclude the record contained sufficient information to
warrant Healey’s registration requirement where he pleaded guilty to criminal
confinement of Z.M.
[23] In his petition for declaratory relief, Healey also argued “it was part of the
benefit of [Healey’s] bargain to receive the less serious sentencing implications
associated with the general confinement statute.” Appellant’s Second
Amended App., Vol. 2 at 11, ¶ 4. Despite Healey abandoning such argument
on appeal, we nevertheless find it relevant to the foregoing discussion and
instructive regarding the operation of SORA. “[A] defendant receives the full
benefit of his bargain when multiple charges are dismissed in accordance with
the [plea] agreement.” Sexton v. State, 968 N.E.2d 837, 841 (Ind. Ct. App.
2012), trans. denied. Here, pursuant to the plea agreement, Healey pleaded
guilty to criminal confinement, a Class D felony, and the State dismissed the
charges of criminal confinement against a child, a Class C felony, and battery
against a child resulting in bodily injury, a Class D felony. See Appellant’s
Second Amended App., Vol. 2 at 28, 25-26. In Bethea v. State, our supreme
court explained that where a plea bargain does not foreclose “the possibility of
the trial court using enhancements from the underlying charges that were
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dismissed, or from the original charges from which a lesser included plea is
taken[,] we hold it is not necessary for a trial court to turn a blind eye to the
facts of the incident that brought the defendant before them.” 983 N.E.2d 1134,
1145 (Ind. 2013). Here, of course, it was not the trial court looking to the
underlying facts of Healey’s conviction for a “sentencing implication[],”
Appellant’s Second Amended App., Vol. 2 at 11, ¶ 4, but rather the DOC
making a determination as to Healey’s registration requirement as a collateral
consequence of his conviction, see supra ¶17. More importantly, however, while
defendants remain free to bargain with the State regarding sentencing, the same
is not true for registration requirements.
[24] In denying Healey’s petition the trial court cited Nichols v. State, 947 N.E.2d
1011; we too find Nichols controlling. Nichols was charged with numerous
counts of child molesting in separate cases arising in different counties. Nichols
entered into plea agreements whereby he would plead guilty to two counts of
child molesting as Class C felonies in the Hamilton County case, and to one
count of child molesting as a Class C felony in the Tipton County case, and the
remaining charges were dismissed. The plea agreement also recited each of the
statutory requirements for sex offender registration for a ten-year period or for
life. The trial court accepted the plea agreement and sentenced Nichols in an
order stating that Nichols would be required to register as a sex offender for a
period of ten years. Soon thereafter, the DOC notified the trial court that its
order appeared in error because Nichols had committed unrelated offenses and
was therefore required to register as a sex offender for life. Nichols filed a
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motion for correction of the sex offender registry, pointing to the terms of his
plea agreement and requesting the trial court order the DOC to revise his
registration obligation to a ten-year period. The trial court denied Nichols’
motion and his subsequent motion to correct error.
[25] Nichols appealed, arguing, inter alia, the DOC improperly overruled the trial
court’s sentencing order and the lifetime registration requirement violated the
terms of his plea agreement. The State argued the registration decision, “like
decisions on prison placement, is within the discretion of the DOC and courts
have no role in such decisions.” Id. at 1016-17. On review, a panel of this
court rejected both parties’ arguments and reasoned the DOC did not
“overrule[]” the trial court because the registration requirement is “a
consequence of the operation of the Act itself.” Id. at 1017 (quotation omitted).
In so holding, the court looked to precedent establishing that “[p]lea agreements
have no effect on the operation of the Act.” Id. (citing In re G.B., 709 N.E.2d
352, 356 (Ind. Ct. App. 1999)). The court therefore concluded,
The DOC . . . made a determination required by law as to the
length of Nichols’s reporting period in order to properly track
information in the Registry. This period is determined by the
statute itself—not by the plea agreement, not by the trial court,
and not—contrary to the State’s argument in its brief—by the
DOC.
Id.
[26] We agree with the reasoning of the Nichols court. Healey pleaded guilty to the
requisite crime of criminal confinement and admitted that Z.M. was the victim
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of the crime. Accordingly, Healey’s registration requirement was “a
consequence of the operation of the Act itself,” id. at 1017, and the trial court
did not abuse its discretion in denying Healey’s motion to correct error seeking
to have declaratory judgment granted in his favor.
Conclusion
[27] For the reasons set forth above, the trial court retained subject-matter
jurisdiction to resolve Healey’s constitutional claim and the trial court did not
abuse its discretion in denying Healey’s petition for declaratory judgment.
[28] Affirmed.
Najam, J., and Altice, J., concur.
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