COA reverses denial of man’s bid to remove sexually violent predator designation

The denial of a man’s petition to remove his sexually violent predator designation was reversed on Monday after the Indiana Court of Appeals found he did not meet the statutory definition of an SVP.

In Shawn Spencer v. State of Indiana, 20A-MI-636, Shawn Spencer pleaded guilty in 1997 to two counts of committing a lewd act upon a child under Florida law. A Florida trial court sentenced him to four years of “youthful offender treatment” followed by two years of probation on the first count and 10 years of probation on the second count, to be served concurrently.

As a result of his convictions, Spencer was required to register in Florida as a sex offender for the rest of his life. Spencer was also required by state law to register as a sex offender in Indiana after moving to the Hoosier State in 2016.

In late 2018, however, the Vanderburgh County Sheriff’s Office informed Spencer that he was being designated as a sexually violent predator. Although he was informed that the new designation could be appealed and that he could obtain “paperwork” when he came in to register, the sheriff’s office never notified Spencer in writing of the change of his designation.

The Vanderburgh Circuit Court later denied Spencer’s petition to remove his designation as an SVP, prompting his appeal. The Indiana Court of Appeals reversed the denial on Monday, finding that the state failed to establish its affirmative defense of Spencer’s failure to exhaust his administrative remedies.

“Considering the (Department of Correction) Appeal Procedure as a whole, we agree with Spencer that, before he could avail himself of the administrative remedies provided therein, the Local Law Enforcement Authority — here, the Vanderburgh County Sheriff — was required to notify him of any Proposed Change of his status in the Registry and do so in writing or in person,” Judge Paul Mathias wrote for the appellate panel. “… Here, there is no evidence that the Vanderburgh County Sheriff’s office ever gave Spencer a copy of the Specimen or other written notice of its Proposed Change, i.e., that Spencer would be designated as an SVP, with the more onerous registration requirements that accompany such a designation.”

Additionally, the appellate panel found that Spencer did not meet the statutory definition of an SVP as it existed in 2016 when he moved to Indiana. It specifically noted that the victim in Spencer’s first Florida conviction involving sexual intercourse was not under the age of 14, and that the second Florida conviction did not involve sexual intercourse or deviate sexual conduct.

“Moreover, at the time of his Florida crimes, Spencer was not yet twenty-one years old, he did not use or threaten the use of a deadly weapon, his crimes did not result in serious bodily injury, nor is there any indication that they were facilitated by him furnishing any drug or controlled substance to the victims without their knowledge. In other words, Spencer’s Florida crimes were not substantially equivalent to the crimes of Class A or Class B felony child molesting as defined in Indiana. As noted, the State does not contend otherwise,” Mathias wrote.

The COA therefore agreed that Spencer cannot be an SVP based on his commission of a crime that is substantially equivalent to Level 4 felony child molesting because he committed his crime before June 30, 2014, as described in Indiana Code § 35-38-1-7.5(b)(1)(C). The panel reversed the judgment of the trial court and remanded with instructions that the trial court grant Spencer’s petition to remove his designation as an SVP.

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