dissenting.
I respectfully dissent.
The majority does not find any ambiguity in the statute's clear requirement that a hearing is required before the trial court may determine that a defendant convicted of sexual misconduct with a minor, as a class B felony, is a sexually violent predator. See L.C. § 35-38-1-7.5(e) ("a hearing to determine ...," at which appointed experts "testify"; after "conducting the hearing and considering the testimony" of the appointed experts, trial court "shall determine whether the person is a sexually violent predator under the" statute.) Indeed, the State concedes that "the statute requires live testimony from the evaluating doctors." State's Br. at 5, n. 1. Yet, the majority finds that here, the failure of Baugh's counsel to press the statutory requirement for a hearing is a procedural default that waives our consideration of the issue. I cannot agree.
By operation of law, the consequence of Baugh's conviction of sexual misconduct with a minor, as a class B felony, was the requirement that he register for a ten-year period. However, as a consequence of the unchallenged conclusions of two court-appointed experts, Baugh has been labeled as a sexually violent predator and will be required to register as such for life.
According to his PSI, in 2008 Baugh was convicted of resisting law enforcement, as a class A misdemeanor, illegal consumption of alcohol, as a class C misdemeanor, and theft, as a class D felony; in 2006, he was convicted of forgery, as a class C felony, and receiving stolen property, as a class D felony; and at the time of sentencing, Baugh had pending several misdemeanor charges: operating a vehicle while intoxicated, operating a vehicle with a BAC of .08% or more, resisting law en-foreement, and public intoxication. In other words, Baugh had a criminal history, but »o criminal history involving offenses of a sexual nature.
The record reflects that Dr. Mueller concluded that Baugh suffer[ed] from a personality disorder, Antisocial Personality Disorder, that makes him likely to repeatedly engage in sexual offenses. He shows disrespect for lawful behavior and safety of others, a lack of remorse, and deceitfulness which are key characteristics of Antisocial Personality Disorder.
(App. 248). Dr. Krause also concluded that Baugh suffered from "Antisocial Personality Disorder," and expressed his "professional opinion" that Baugh was "likely" to "repeatedly engage in one or more of the offen[sles described in LC. § 11-8-8-5."4 (App. 253). Neither doctor elaborat*504ed on the bases for the conclusions reached.
Given the nature of the offenses constituting Baugh's criminal history, I believe that consequences as severe as the "violent sexual predator" label and the lifetime registration requirement should subject the doctors' conclusions to the crucible of cross-examination. It may be that each could explain why the conclusion was reached-what Baugh had said or done that led to the conclusion that he would commit one of the offenses specified in Indiana Code 11-8-8-4.5(a) 5; but the bases for the conclusions are certainly not apparent on the record presented.
Recently, in Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that because deportation is such a serious consequence, with the law in that respect being "succinet and straightforward," id., - U.S. at -, 130 S.Ct. at 1483, 176 L.Ed.2d 284, constitutionally competent counsel would have advised the client of the risk thereof when considering whether to plead guilty. As already noted, the statute is clear on its face, and the lifelong consequences are severe. Thus, I equate the consequences suffered by Baugh as equivalent to that faced by Padilla as a result of his counsel's failure. Moreover, as noted by the majority, the entirety of Baugh's representation regarding the sexual predator determination is the single statement by Baugh's counsel that be "thfought] that the Court hald] to make that determination based upon the charge that he's been convicted [sic] and the doctors' reports, and [he] would leave that up to the Court." (Tr. 429-80). Accordingly, I find the matter to be one of fundamental error. How could a constitutionally competent attorney allow his client to suffer the consequences that befell Baugh without advising him of the statutorily required hearing, at which he could subject the experts' conclusions to the eru-cible of eross-examination?
Therefore, I would hold that the trial court's sentencing determination that Baugh is a sexually violent predator cannot stand, and I would order a remand to the trial court to either conduct a hearing at which the examining experts testify 6 or inform Baugh of the statutory requirement for such a hearing and elicit from him an express waiver of the experts' testifying at such a hearing.
. This statutory provision specifies the offenses that label an offender a "sex or violent offender," not a sexually violent predator. The offenses in Indiana Code section 11-8-8-5 generally subject the offender only to a ten-year registration period. See LC. § 11-8-8-19.
A sexually violent predator is one who commits an "offense listed" in Indiana Code section 11-8-8-4.5(a). LC. § 11-8-8-5.2 (emphasis added); see also LC. § 35-38-1-7.5 ("sexually violent predator" means person suffering from mental abnormality or personally disorder that makes individual likely to repeatedly commit a sex offense (as defined in LC. § 11-8-8-5.2.)).
. In light of the consequences of their conclusions, I am troubled by the fact that the record does not reflect that either doctor was clearly aware of which offenses the authorizing statute specified as those likely to be committed in the future by the offender determined to be a sexually violent predator.
. I express no opinion as to the ultimate result or outcome of the hearing regarding whether Baugh should be adjudicated to be a sexual violent predator.