ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Joby Jerrells
Deputy Attorney General
Indianapolis, Indiana
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In the FILED
Indiana Supreme Court May 15 2008, 1:19 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 61S01-0711-CR-560
ALAN C. JONES, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Appeal from the Parke Circuit Court, No. 61C01-0204-FA-46
The Honorable Sam A. Swaim, Judge
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On Transfer from the Indiana Court of Appeals, No. 61A01-0704-CR-174
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May 15, 2008
Dickson, Justice.
The defendant, Alan C. Jones, appeals from the trial court's order revoking his probation
and suspended sentence, ordering him to serve the full sentence imposed, finding him to be a
Sexually Violent Predator (SVP), and ordering him to register as an SVP for his lifetime. The
Court of Appeals affirmed. Jones v. State, 873 N.E.2d 725 (Ind. Ct. App. 2007). We granted
transfer and now hold that the language of the SVP statute does not authorize a trial court to
initiate an SVP determination for the first time during a probation revocation proceeding.
Early in 2002, when he was twenty-two years old, the defendant had a three-month
sexual relationship with a thirteen-year old girl. As a result, the defendant was charged with four
counts of Child Molestation,1 as class A, B, and C felonies. Pursuant to a written plea
agreement, the State agreed to dismiss three counts, and the defendant entered a plea of guilty to
one count as a class B felony with a prescribed sentence of twenty years and ten years suspended
to probation subject to specific agreed terms plus "whatever [additional] terms the Court deems
appropriate." Appellant's App'x at 43. These additional terms, titled "Parke County Special
Probation Conditions for Adult Sex Offenders," were expressly acknowledged and incorporated
by reference in the plea agreement. Id. One of those additional terms required the defendant to
"register with local law enforcement authorities as a sex offender within seven (7) days of being
released to probation supervision in accordance with IC 5-2-12-5." Appellant's App'x at 52.
After receiving credit time, the defendant was released to probation on January 6, 2006. Several
months later, as part of his court-mandated probation conditions, he took a polygraph
examination at a treatment facility, wherein he admitted several violations of his probation,
including having sexual contact with the victim of the crime he was on probation for, viewing
pornography, as well as drinking alcohol, and consuming illegal drugs. On January 23, 2007, the
trial court found that the defendant had violated the terms of his probation and initiated
proceedings to determine whether the defendant was an SVP. At the conclusion of an
evidentiary hearing on March 1, 2007, the trial court ordered reinstatement of the ten year
suspended portion of the defendant's original sentence, found that "the defendant is a serious
violent predator as described in I.C. 35-38-1-7.5," and ordered the defendant "to register with
local law enforcement pursuant to I.C. 11-8-8," which requires that a sex offender who is a
Sexually Violent Predator must register on the Sex Offender Registry for life. Appellant's App'x
at 71.
In this direct appeal from the trial court's order at the conclusion of the probation
revocation proceeding, the defendant makes two claims: (1) that the trial court improperly
determined him to be an SVP when "sentencing him for a probation violation," and (2) that
imposing the entire balance of his ten year sentence was "an abuse of discretion and
inappropriate." Appellant's Br. at 1.
1
Ind. Code § 35-42-4-3(a).
2
Sexually Violent Predator Determination
The defendant contends that the trial court erred when, as part of the probation revocation
proceeding, it undertook to determine that he was an SVP and ordered him to lifetime
registration as an SVP. He argues that the statutory language authorizes an SVP evaluation and
determination to be made at the time of the initial sentence, but not at a subsequent probation
revocation proceeding. Appellant's App'x at 3.
On the date of the defendant's original sentencing, August 12, 2002, the trial court
ordered that, as a condition of future probation, the defendant must register "as a sex offender . . .
in accordance with IC 5-2-12-5." Appellant's App'x at 52, specifically "Parke County Special
Probation Conditions for Adult Sex Offenders." When it originally sentenced the defendant, the
trial court did not find the defendant to be a "sexually violent predator." At that time, the statute
designated by the trial court provided that an offender's duty to register would expire ten years
after the defendant is placed on probation, subject to two exceptions not applicable in this case.2
Had the defendant been found to be an SVP when he was sentenced in 2002, he would have been
required to "register for an indefinite period unless a court, assisted by a board of experts, finds
that [he] is no longer a sexually violent predator." Ind. Code §5-2-12-13(b) (2001). By the time
of the defendant's probation revocation proceedings, however, the statute had been amended to
require a Sex Offender who is an SVP "to register for life." Ind. Code § 11-8-8-19(b) (2006).
On January 23, 2007, when the trial court found that the defendant had violated the terms
and conditions of his probation, it declared that "per I.C. 35-38-1-7.5 [the court] must determine
whether the [d]efendant is a 'sexually violent predator' . . . at or prior to sentencing." Appellant's
App'x at 67. The following portions of the statute cited by the trial court are central to this
appeal:
(b) This section applies whenever a court sentences a person for a sex offense
2
If the offender was convicted of a "sex and violent offense" upon certain designated classes of
victims, or two or more "sex and violent" offenses, the offender would be required to register for
life. Ind. Code §5-2-12-13(d) and (e).
3
listed in IC 5-2-12-4(a)(1) through IC 5-2-12-4(a)(10) for which the person is required to
register with a local law enforcement agency under IC 5-2-12-5.
(c) At the sentencing hearing, the court shall determine whether the person is a
sexually violent predator. Before making a determination under this section, the court
shall consult with a board of experts consisting of two (2) board certified psychologists or
psychiatrists who have expertise in criminal behavioral disorders.
Ind. Code § 35-38-1-7.5 (b) and (c) (2001) (emphasis added).3 Focusing on the words
"sentences" and "sentencing," the defendant urges that this statute authorizes an SVP
determination only at the time of the original sentencing and not during a probation revocation
proceeding. The State argues that the "plain meaning of 'whenever' applies to a sentence
imposed at a probation revocation," and that this is consistent with legislative intent and sound
public policy. Appellee's Br. at 7.
We are not persuaded that the word "whenever" alters the clear and plain language
limiting the subsection's application to initial sentencing proceedings. In addition to the
unambiguous text of the statute, we note that Section 7.5 is located within Chapter 1, which is
titled "Entry of Judgment and Sentencing," and is not located in Chapter 2, "Probation."
Furthermore, the action taken by a trial court in a probation revocation proceeding is not a
"sentencing." The court is merely determining whether there has been a violation of probation
and, if so, the extent to which the court's conditional suspension of the original sentence should
be modified and/or whether additional conditions or terms of probation are appropriate.
The plea agreement that served as the basis for the trial court's initial sentencing
expressly included the defendant's acknowledgment that the ten year suspension of his twenty
year sentence would be subject to conditions of probation, and at sentencing, the trial court's
conditions included that upon his release to probation the defendant must register as a "sex
offender in accordance with IC 5-2-12-5." Appellant's App'x at 52, specifically "Parke County
Special Probation Conditions for Adult Sex Offenders." At that time, the cited statute required
3
The 2007 legislature made substantial changes to Section 7.5, but these were not effective until
May 10, 2007. These amendments include the automatic designation of SVP status to persons
who commit certain designated offenses. See P.L. 216-2007, Sec. 37. We note that the duty of
lifetime registration resulting from an SVP determination "most assuredly has penal
implications" and "runs afoul of ex post facto considerations." Thompson v. State, 875 N.E.2d
403, 409 (Ind. Ct. App. 2007), trans. denied.
4
only a ten-year registration period for the defendant. Neither the plea agreement nor the trial
court's sentencing judgment made any reference to the defendant as an SVP.
We conclude that the trial court was not authorized to initiate an SVP determination
during the defendant's probation revocation proceedings. The defendant remains obligated,
however, to register as a Sex Offender (but not as a Sexually Violent Predator) for ten years
following his release from incarceration, in accordance with the probation conditions ordered
with his original sentencing.
Challenge to Penalty for Probation Violation
The defendant also challenges the trial court's revocation of his entire suspended sentence
and imposition of the full original twenty year sentence, asserting two alternative claims: (a) that
the probation revocation penalty was "inappropriate in light of the nature of the offense and
character of the offender" and thus warrants appellate review and revision under Indiana
Appellate Rule 7(B), or (b) that the trial court's decision was an abuse of discretion.
Rule 7(B) authorizes appellate review and revision of "a sentence authorized by statute if,
after due consideration of the trial court's decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender." The Rule
permits an appellate determination of the appropriateness of a criminal sentence and implements
the permissive jurisdiction granted in Article 7, Section 4 of the Indiana Constitution: "The
Supreme Court shall have, in all appeals of criminal cases, the power . . . to review and revise the
sentence imposed."
As this Court has recently held, the appellate evaluation of whether a trial court's
sanctions are "inappropriate in light of the nature of the offense and the character of the
offender" is not the correct standard to apply when reviewing a trial court's actions in a post-
sentence probation violation proceeding. Prewitt v. State, 878 N.E.2d 184, 187-88 (Ind. 2007).
A trial court's action in a post-sentence probation violation proceeding is not a criminal sentence
as contemplated by the rule. The review and revise remedy of App. R. 7(B) is not available.
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On the other hand, probation violation sanctions are subject to appellate review for abuse
of discretion. Prewitt, 878 N.E.2d at 188. And the Court of Appeals addressed and rejected the
defendant's abuse of discretion claim. On this point, we summarily affirm. Ind. App. R.
58(A)(2).
Conclusion
Because the SVP evaluation and determination was incorrectly first commenced during
the defendant's probation revocation proceedings, we must vacate that portion of the trial court
order of March 1, 2007, finding the defendant to be a Serious Violent Predator. The defendant
remains subject, however, to the trial court's order that he must register as a Sex Offender for ten
years following his release from incarceration. We also affirm that portion of the order revoking
the defendant's ten-year suspension and reinstating the original sentence.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
6