COA: Man cannot challenge ‘sexually violent predator’ designation

A man who pleaded guilty to felony child molesting pursuant to a plea agreement cannot challenge his requirement to register as a sexually violent predator, which was not a term of the agreement, because an SVP designation is a statutory mandate, the Indiana Court of Appeals ruled Friday.

In Johnny L. Raley v. State of Indiana, 88A04-1705-CR-1039, Johnny Raley executed a plea agreement with the state after being charged with three counts of Class A felony child molesting. The agreement called for him to plead guilty to one of the counts as a Class B felony in exchange for the state dismissing the other two charges. The Washington Superior Court accepted that agreement and sentenced Raley to 20 years, with seven years suspended to probation, per the terms of the agreement.

Raley was released to probation in 2011, but in January 2014, the state moved to revoke his probation. The trial court agreed to accept an agreement in which Raley would admit to violating the terms of his probation and would serve three years of his previously suspended sentence.

After Raley’s second sentencing, Indiana Department of Correction staff informed him that he would be required to register as a sexually violent predator for life upon his release and to comply with the related requirements. In response, Raley filed a pro se motion to enforce plea agreement, arguing he should not be designated as an SVP because that was not a term of his plea agreement.

The trial court denied Raley’s motion, prompting him to argue on appeal that he should not be designated as an SVP “because that would amount to an ex post facto punishment in violation of his federal and state constitutional rights.” But in a Friday opinion, Indiana Court of Appeals Senior Judge John T. Sharpnack wrote Raley did not raise that argument to the trial court in his motion to enforce plea agreement, so it is waived.

 Likewise, Sharpnack held Raley’s second claim – in which he argued “that being designated an SVP amounts to a fundamental alteration of the parties’ plea agreement and renders the agreement void” – is also waived because he did not raise it to the trial court. Waiver notwithstanding, the appellate court determined Raley’s contractual claim is without merit because the “SVP designation…is a separate statutory classification that has nothing to do with the terms of the parties’ plea agreement and does not render that agreement void.”

“Here, the terms of the plea agreement did not preclude SVP status, nor could the trial court have excused Raley from being designated as an SVP pursuant to Indiana Code section 35-38-1-7.5,” Sharpnack wrote. “The court did not have the power to ignore a statutory mandate.”

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