Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the 

case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana 

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CHARLES NEAL, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1106-CR-262

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge 

Cause No. 49G05-0611-FA-212782

February 29, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
2

STATEMENT OF THE CASE

Charles Neal appeals his classification as a sexually violent predator (“SVP”)

following his conviction for attempted child molesting as a class B felony.

We affirm.

ISSUE

Whether Neal‟s classification as a SVP under the amended version of the 

sex offender registry statutes violates the ex post facto clause of the Indiana 

Constitution.

FACTS

On November 6, 2006, the State charged Neal with attempted child molesting as a 

class A felony and child molesting as a class C felony. On August 10, 2007, Neal 

pleaded guilty to attempted child molesting as a class B felony. Pursuant to the terms of 

the plea agreement, the trial court sentenced Neal to fifteen years, with five years 

suspended, and three years on probation.

At some point, the Department of Correction (“the DOC”) classified Neal as a 

sexually violent predator pursuant to Indiana Code section 35-38-1-7.5. In February 

2011, Neal filed a Motion to Remove Sexually Violent Predator Status. At the hearing 

on the motion, Neal argued that the DOC is not authorized to classify an offender as a 

SVP because the classification is a retroactive punishment that overrides the lawful 

sentence imposed by the trial court. The trial court denied Neal‟s motion following the 

hearing.
3

Neal subsequently filed a Motion to Correct Errors wherein he again argued that 

the DOC lacks the authority to classify him as a SVP because the DOC‟s classification

improperly overrides the trial court‟s lawful sentence. The trial court denied Neal‟s 

motion, and Neal appeals.

DECISION

Neal‟s sole argument on appeal is that his classification as a SVP under the 

amended version of the sex offender registry statutes violates the ex post facto clause of 

the Indiana Constitution. At the outset, we note that this is not the argument that Neal 

made to the trial court at the hearings on his motions to remove the sexually violent 

predator status and to correct error. Rather, at both hearings, Neal argued that the DOC 

does not have the authority to classify an offender as a SVP because the classification is a 

retroactive punishment that overrides the lawful sentence imposed by the trial court. This 

issue was decided against Neal in Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind. 2011) 

(holding that the SVP determination need not be made by a trial court at sentencing and 

the DOC does not violate the separation of powers provision of the Indiana Constitution

when it classifies an offender as a SVP). 

Further, a party generally waives appellate review of an issue or argument unless 

the party raises that issue or argument before the trial court. Benton Cnty. Remonstrators 

v. Bd. of Zoning Appeals of Benton Cnty., 905 N.E.2d 1090, 1096 (Ind. Ct. App. 2009). 

This rule is based on several fundamental considerations, including getting the trial 

court‟s views on the issues, giving the trial court the opportunity to correct any errors and 
4

obviate the need for an appeal, and a concern that all facts bearing on issues that were not 

raised in the trial court may not be fully developed. See Endres v. Ind. State Police, 809 

N.E.2d 320, 322 (Ind. 2004) (citing the advantages of preserving judicial resources, fully 

developing the record, using the trial court‟s fact finding expertise, and assuring that a 

claim is tested by the adversary process). Here, had Neal raised this issue at the two 

hearings, the parties would have had an opportunity to develop a record and provide the 

court with evidence. Neal cannot now raise this issue. He has waived it.

Waiver notwithstanding, we find no ex post facto violation. The ex post facto 

clause of the Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be 

passed.” Ind. Const. art. I, § 24. In general, the ex post facto clause forbids imposing 

punishment for an act that was not otherwise punishable at the time it was committed or 

imposing additional punishment for an already prohibited act. Harris, 949 N.E.2d at 809. 

Underlying the Ex Post Facto Clause is the desire to give people fair warning of the 

conduct that will give rise to criminal penalties. Id. 

We now turn to the Indiana Sex Offender Registration Act, which requires persons 

convicted of certain offenses to register with local law enforcement agencies and to 

disclose detailed personal information. In 1998, the term SVP first appeared in the 

Indiana Code. Indiana Code section 35-38-1-7.5 was enacted to govern the process by 

which an offender becomes a SVP. In 2007, Indiana Code section 35-38-1-7.5 was 

amended to clarify that certain convictions qualify an offender as a SVP “by operation of 

law.” The statute was also amended to disallow a person with two unrelated convictions 
5

for sex offenses to petition for removal of the SVP designation. Flanders v. State, 955 

N.E.2d 732, 746 (Ind. Ct. App. 2011). The 2007 version of Indiana Code section 35-38-

1-7.5 is the version currently in effect. This statute provides in relevant part as follows:

(a) As used in this section, “sexually violent predator” means a 

person who suffers from a mental abnormality or personality disorder that 

makes the individual likely to repeatedly commit a sex offense (as defined 

in IC 11-8-8-5.2). . . .

(b) A person who:

(1) being at least eighteen (18) years of age, commits an offense 

described in . . . (C) IC 35-42-4-3 as a Class A or Class B 

felony . . . 

(2) commits a sex offense . . . while having a previous unrelated 

conviction for a sex offense for which the person is required 

to register as a sex or violent offender . . . .

(3) commits a sex offense . . . while having had a previous 

unrelated adjudication as a delinquent child for an act that 

would be a sex offense if committed by an adult, if, after 

considering expert testimony, a court finds by clear and 

convincing evidence that the person is likely to commit an 

additional sex offense; or

(4) commits a sex offense . . . while having had a previous 

unrelated adjudication as a delinquent child for an act that 

would be a sex offense if committed by an adult, if the person 

was required to register as a sex or violent offender under IC 

11-8-8-5(b)(2);

is a sexually violent predator. Except as provided in subsection (g) or (h), a 

person is a sexually violent predator by operation of law if an offense 

committed by the person satisfies the conditions set forth in subdivision (1) 

or (2) and the person was released from incarceration, secure detention, or 

probation for the offense after June 30, 1994.

* * *

(e) If a person is not a sexually violent predator under subsection 

(b), the prosecuting attorney may request the court to conduct a hearing to 

determine whether the person . . . is a sexually violent predator under 

subsection (a). If the court grants the motion, the court shall appoint two 

(2) psychologists or psychiatrists who have expertise in criminal behavioral 
6

disorders to evaluate the person and testify at the hearing. After conducting 

the hearing and considering the testimony of the two (2) psychologists or 

psychiatrists, the court shall determine whether the person is a sexually 

violent predator under subsection (a). A hearing conducted under this 

subsection may be combined with the person‟s sentencing hearing.

* * *

(g) This subsection does not apply to a person who has two (2) or 

more unrelated convictions for an offense described in IC 11-8-8-4.5 for 

which the person is required to register under IC 11-8-8. A person who is a 

sexually violent predator may petition the court to consider whether the 

person should no longer be considered a sexually violent predator. The 

person may file a petition under this subsection not earlier than ten (10) 

years after:

(1) the sentencing court or juvenile court makes its determination 

under subsection (e); or

(2) the person is released from incarceration or secure detention.

A person may file a petition under this subsection not more than one 

(1) time per year. A court may dismiss a petition filed under this 

subsection or conduct a hearing to determine if the person should no longer 

be considered a sexually violent predator. If the court conducts a hearing, 

the court shall appoint two (2) psychologists or psychiatrists who have

expertise in criminal behavioral disorders to evaluate the person and testify 

at the hearing. After conducting the hearing and considering the testimony 

of the (2) psychologists or psychiatrists, the court shall determine whether 

the person shall no longer be considered a sexually violent predator under 

subsection (a). If a court finds that the person should no longer be 

considered a sexually violent predator, the court shall send notice to the 

department of correction that the person is no longer considered a sexually 

violent predator. . . . 

Here, Neal argues that his classification as a SVP under this amended version of 

Indiana Code section 35-38-1-7.5 violates the ex post facto clause of the Indiana 

Constitution because he is ineligible to petition for a change of status under subsection 

(g). Although cited by neither party, Flanders, 955 N.E.2d at 732, is instructive. 
7

Therein, Flanders committed sexual misconduct with a minor in 2005. In 2007, he was 

sentenced to ten years in prison. At some point, the DOC informed him that he had been 

classified as a SVP. He qualified as a SVP under the 2007 amendments because he had 

two unrelated convictions for sex offenses. In 2009, Flanders filed a petition for post 

conviction relief wherein he argued that his classification as a SVP violated the ex post 

facto clause of the Indiana Constitution. The post conviction court denied the petition, 

and Flanders appealed.

This Court reviewed Harris, 949 N.E.2d at 803 and Jensen v. State, 905 N.E.2d 

384 (Ind. 2009), two cases which established the analytical framework for the ex post 

facto issue. Specifically, we noted that in Jensen, the Indiana Supreme Court adopted the 

“intent-effects” test. Flanders, 955 N.E.2d at 749.

Under this test the court must first determine whether the legislature meant 

the statute to establish civil proceedings. If the intention of the legislature 

was to impose punishment, then that ends the inquiry, because punishment 

results. If, however the court concludes the legislature intended a nonpunitive regulatory scheme, then the court must further examine whether 

the statutory scheme is so punitive in effect as to negate that intention 

thereby transforming what was intended as a civil regulatory scheme into a 

criminal penalty.

Id. (quoting Jensen, 905 N.E.2d at 390) (citations omitted). We pointed out that the 

Court concluded there was no evidence of a punitive intent on the part of the legislature; 

therefore, the Court considered whether the registration act nevertheless has a punitive 

effect. Id.
8

We also noted that the Indiana Supreme Court adopted a seven-factor test: 1) 

whether the sanction involves an affirmative disability or restraint; 2) whether it has 

historically been regarded as punishment; 3) whether it comes into play only on a finding

of scienter; 4) whether it promotes the traditional aims of punishment – retribution and 

deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether it 

has a rational alternative purpose; and 7) whether it is excessive in relation to the 

alternative purpose. Id.

We noted that the supreme court found that the first three factors leaned in favor 

of finding the act punitive because it imposed additional obligations and burdens upon 

SVPs, such as registering for life and informing law enforcement if they will be away 

from their residences for more than seventy-two hours and was comparable to the 

historical punishment of shaming. Id. We also noted that the fourth, fifth, and sixth 

factors leaned in favor of finding the act non-punitive because the act promoted the 

traditional aims of punishment, applies to behavior that was already a crime, and 

promoted the rational alternative purpose of public safety. Id. As to the seventh factor, 

we quoted the following:

The „broad and sweeping‟ disclosure requirements were in place and 

applied to Jensen at the time of his guilty plea in 2000. Nothing in that 

regard was changed by the 2006 amendments. And with regard to lifetime 

registration, we note that sexually violent predators may, after ten years, 

„petition the court to consider whether the person should no longer be 

considered a sexually violent predator.‟

Id. at 749-50 (quoting Jensen at 394.).
9

Thus, we pointed out that the Indiana Supreme Court also concluded that the 

seventh factor leaned in favor of finding the act non-punitive and that this factor was 

afforded considerable weight when applying the seven-factor test. Id. at 750. We also 

pointed out that because four of the seven factors leaned in favor of finding the act nonpunitive, the Indiana Supreme Court concluded that it was not an ex post facto law. Id.

We further noted that in Harris, our supreme court considered an ex post facto 

challenge to the 2007 amendments and again applied the seven-factor test. The analysis 

was substantially similar to the analysis in Jensen. As to the seventh factor, we noted that 

the supreme court explained as follows:

 Finally, and most importantly, as applied to Harris, the Act‟s 

requirements are not excessive in relation to its legitimate, regulatory 

purpose. Like Jensen, many of the Act‟s registration and disclosure 

requirements were in place and applied to Harris at the time he pled guilty 

to child molesting, well before the 2007 Amendment. Further, like the 

2006 Amendment, the 2007 Amendment provides that in ten years from the 

date of his release from prison – the time frame in which Harris was 

originally required to register – he may petition the court „to consider 

whether [he] should no longer be considered an [SVP],‟ Ind. Code § 35-38-

1-7.5(g) (Supp. 2007). And, under the 2007 Amendment, the court at that 

point may determine if Harris presents a future threat – i.e., „suffers from a 

mental abnormality or personality disorder that makes [him] likely to 

repeatedly commit a sex offense.” I.C. § 35-38-1-7.5(a) – after consulting 

with two psychologists or psychiatrists who have expertise in criminal 

behavioral disorders. I.C. § 35-38-1-7.5(g). As we read the 2007 

Amendment, if he is not a SVP under this standard, then he no longer has to 

register as one and his lifetime-registration requirement terminates. But if 

he is, then the Act requires him to continue to register; he can petition the 

court again to determine his SVP status in another year.

It is clear that this provision of the 2007 Amendment advances the 

Act‟s legitimate regulatory purpose of public safety – by its terms, only 

those people who present a future threat are required to register for their 

lifetimes. Because of this provision allowing for an individualized 
10

determination based on his likelihood to reoffend after his original ten-year 

registration requirement is up, the 2007 Amendment seems even less 

punitive as applied to Harris than as to Jensen under the 2006 Amendment.

Id. (quoting Harris, 949 N.E.2d at 812-13) (footnotes omitted).

We noted that Flanders‟s case is similar to Harris and Jensen as to the first six 

factors; three in favor of punitive and three in favor of non-punitive. Id. at 751. 

However, his case differed as to the seventh factor because Flanders could not petition 

the court to change his status because he had two unrelated convictions for sex offenses. 

Id. Thus, four of the seven factors, including the seventh factor that our supreme court 

accorded special weight, weighed in favor of finding the 2007 amendments punitive as 

applied to Flanders. Id. We therefore found an ex post facto violation. Id.

Although Flanders argued that the remedy for the ex post facto violation was to 

reverse his designation as a SVP, we disagreed. Id. at 752. The problematic provision 

was Indiana Code section 35-38-1-7.5(g), which made offenders with two or more 

unrelated convictions for sex offenses ineligible to petition the court for a change in 

status. We concluded that Flanders could be placed in the same position as offenders like 

Harris and Jensen by reinstating his right to petition the court for removal of his SVP 

status after ten years. Id. We therefore ordered that Flanders be allowed to petition for a 

change in status once a year after he had been registered for ten years. Id. at 753. 

The facts in the case before us are more similar to those in Jensen and Harris than 

those in Flanders. Neal is a SVP by operation of law under Indiana Code section 35-38-

1-7.5(b)(1) because he was convicted of child molesting as a class B felony. Indiana 
11

Code section 35-38-1-7.5 clearly states that he can petition the court to consider whether 

he should no longer be considered a sexually violent predator ten years after he is 

released from incarceration. Only those defendants who have two or more unrelated 

convictions for an offense described in Indiana Code section 11-8-8-4.5 are ineligible to 

petition the court for a change in status. Because Neal can petition the court ten years 

after he is released from incarceration, we find no ex post facto violation. See Harris,

949 N.E.2d at 803, Jensen, 905 N. E.2d at 905.

Affirmed.

BAKER, J., and BAILEY, J., concur.