COA Keeps Man’s Name On Sex Offender Registry

Olivia Covington for www.theindianalawyer.com

A man who has been convicted of multiple sex offenses must keep his name on the Indiana Sex Offender Registry for now after the Indiana Court of Appeals found Tuesday that he had failed to present a proper petition to keep his name off of the registry.

In State of Indiana v. Douglas Woods Johnston, 49A02-1606-CR-1222, Douglas Johnston filed a motion in October 2015 requesting his removal from the Indiana Sex Offender Registry, writing that he had been found guilty but mentally ill in 2006, when he was convicted for the first time of child molesting as a Class C felony. Johnston further wrote that he was eligible for relief because he was 59 years old and was willing to get continued treatment for his mental illness.

During the hearing in January 2016, Johnston’s counsel told the Marion Superior Court that Johnston had also been convicted of child molesting in 1997 and had been arrested in 2013, though that charge was dropped. Johnston then testified that he had been getting treatment for his mental illness and told the court that he faced hardships when trying to comply with the Indiana Sex Offenders Registry Act.

The state, however, objected that the petition was inadequate and argued that Johnston had failed to meet his burden of proof. But the trial court ultimately found that Johnston should be required to register only until July 28, 2016, 10 years after his conviction. The Indiana Department of Correction filed a motion to intervene and motion to correct error, but failed to appear before the Marion Superior Court, so the motion to correct error was denied.

The state appealed, and in a Tuesday opinion a panel of the Indiana Court of Appeals unanimously reversed the decision to deny the motion to correct error. In the majority opinion, Judge Mark Bailey wrote that there were allegations that Johnston’s most recent victim was 6 years old, that Johnston had been classified as a sexually violent predator and that state statute in effect in 2006 required that, “A sex or violent offender who is convicted of at least two unrelated offenses … is required to register for life.”

“Thus, by all indications, Johnston was subject to life-time reporting requirements when he petitioned for relief,” Bailey wrote.

Johnston’s petition for relief came under Indiana Code section 11-8-8-22, which provides a mechanism for relief for sex offenders if, among other things, the petition is submitted under penalties of perjury and lists each criminal conviction. But Johnston’s petition was not submitted under penalties of perjury and one of his convictions was omitted, Bailey wrote.

Further, Bailey wrote that there was no indication that notice of the hearing was sent to the Department of Corrections or the Attorney General, as required by state statute. Finally, the appellate judge pointed out that Johnston’s counsel had not argued that he had satisfied his statutory burden of proof. Instead, Johnston argued that he had been “implicitly” found to be subjected to an ex post facto punishment, another provision of the statute.

But Bailey wrote that Johnston had not presented an ex post facto punishment argument and instead made an appeal for compassionate relief. Thus, the appellate panel found that Johnston had failed to produce a proper statutory-based petition for relief, so the Marion Superior Court should have granted the state’s request for dismissal.

The case was remanded with instructions to dismiss the matter with prejudice, subject to further proceedings if Johnston filed a new petition.