Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 1 of 9

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Aaron T. Craft

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Matthew D. Anglemeyer

Marion County Public Defender

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Respondent,

v.

Douglas Woods Johnston,

Appellee-Petitioner.

December 13, 2016

Court of Appeals Case No.

49A02-1606-CR-1222

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

The Honorable Steven J. Rubick, 

Magistrate

Trial Court Cause No.

49G01-0508-FC-147277

Bailey, Judge.
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 2 of 9

Case Summary

[1] The State of Indiana (“the State”) appeals the denial of a motion to correct 

error, which challenged an order granting the petition of Douglas Woods 

Johnston (“Johnston”) to relieve him of registration requirements under the 

Indiana Sex Offenders Registry Act, Indiana Code Section 11-8-8-1, et seq., 

(“SORA”). The State presents the sole issue of whether Johnston was granted 

relief in contravention of statutory authority. We reverse.

Facts and Procedural History

[2] On October 13, 2015, Johnston filed a “Request for Removal from Sex 

Offender Registry” pursuant to Indiana Code Section 11-8-8-22. (App. at 14.) 

Johnston, who has two convictions for Child Molesting, as Class C felonies, 

referenced only his 2006 conviction in his petition. He stated that he had been 

found guilty but mentally ill in 2006, and claimed that he was eligible for relief 

due to his age (fifty-nine years) and willingness to get continued treatment for 

his mental illness.

[3] On January 26, 2016, the trial court conducted a hearing. At the outset, 

Johnston’s counsel advised the trial court that Johnston also had a Child 

Molesting conviction in 1997. Counsel further advised that Johnson had been 

arrested in 2013, but the charge was dismissed. Johnston then testified 

regarding his mental health treatment and the hardships of compliance with 

SORA requirements.
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 3 of 9

[4] At the conclusion of the hearing, the State objected that the petition was 

inadequate to permit the trial court to reach the issue of Johnston’s removal 

from the sex offender registry. Additionally, the State argued that Johnston had 

not met his burden of proof. Johnston’s counsel responded that Johnston was 

fifty-nine years old, living on disability, and “absolutely limited by his 

requirement to register.” (Tr. at 13.) Counsel urged that Johnston’s 2006 

conviction should be distinguished because he had been found guilty but 

mentally ill (“GBMI”). The trial court took the matter under advisement.

[5] On February 10, 2016, the trial court entered an order that Johnston be required 

to register as a sex offender only up until July 28, 2016, ten years after his 2006 

conviction. The Indiana Department of Correction (“the DOC”) filed a motion 

to intervene, which was granted. The DOC filed a motion to correct error and 

the trial court set a hearing date. However, the DOC did not appear at the 

hearing and the trial court summarily denied the motion to correct error. This 

appeal ensued.1

 

1

Indiana Code Section 11-8-8-22(l) provides: “The attorney general may initiate an appeal from any order 

granting an offender relief under this section.”
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 4 of 9

Discussion and Decision

Standard of Review

[6] Generally, we review a trial court’s ruling on a motion to correct error for an 

abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. 

App. 2010), trans. denied. However, to the extent the issues raised on appeal are 

purely questions of law, our review is de novo. Id.

Analysis

[7] The facts underlying Johnston’s convictions were not developed in testimony or 

evidentiary exhibits in the proceedings below. However, it has been alleged 

that Johnston’s most recent victim was six years old. If so, Johnston would 

have been subject to life-time registration requirements pursuant to Indiana 

Code Section 11-8-8-19(c) (requiring, as was required in 2006, that an offender 

who was at least age 18 who molested a child under age 12 must register as a 

sex offender for life). Also, as was true in 2006, “A sex or violent offender who 

is convicted of at least two (2) unrelated offenses under section 5(a) of this 

chapter is required to register for life.” Ind. Code § 11-8-8-19(e). Finally, an 

offender who commits a sex offense while having had a previous unrelated 

conviction for a sex offense requiring registration is classified as a sexually 

violent predator (“SVP”) and an SVP is subject to a life-time reporting 

requirement. I.C. §§ 35-38-1-7.5(b)(2), 11-8-8-19(b). Thus, by all indications, 

Johnston was subject to life-time reporting requirements when he petitioned for 

relief. 
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 5 of 9

[8] Johnson petitioned for, and was granted, relief from registration requirements 

pursuant to Indiana Code Section 11-8-8-22. This statute provides a 

mechanism whereby a sex offender may petition to remove a designation or 

register under less restrictive conditions. Subsection (k) requires that the 

petition must be submitted under the penalties of perjury and list each criminal 

conviction with specifications including the corresponding state, court, and 

date. After receiving the petition, the trial court may summarily dismiss it or 

may set the matter for hearing. In the latter event, the trial court is to give 

notice at least sixty days in advance of the hearing to the DOC, the Attorney 

General, one or more prosecuting attorneys2 and the Sheriff in the offender’s 

county of residence.

[9] According to subsection (h): “The petitioner has the burden of proof in a 

hearing under this section.” Subsection (j) permits an offender to base a 

petition “on a claim that the application or registration requirements constitute 

ex post facto punishment.” Also, subsection (g) provides that a court may grant 

a petition if, following a hearing, the court makes the following findings:

(1) The law requiring the petitioner to register as an offender has 

changed since the date on which the petitioner was initially 

required to register.

 

2 Those entitled to notice include prosecutors in the county where the petition was filed, in the county where 

the most recent relevant conviction took place, and the county where the offender resides.
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 6 of 9

(2) If the petitioner who was required to register as an offender 

before the change in law engaged in the same conduct after 

the change in law occurred, the petitioner would:

(A) not be required to register as an offender; or

(B) be required to register as an offender, but under less 

restrictive conditions.

(3) If the petitioner seeks relief under this section because a 

change in law makes a previously unavailable defense 

available to the petitioner, that the petitioner has proved the 

defense.

[10] Here, the petition did not comply with the requirements of subsection (k). It 

was not submitted under penalties of perjury and one of Johnston’s convictions 

was omitted. The chronological case summary does not reflect the provision of 

requisite notice to the DOC and the Attorney General. In his petition and at 

the hearing, Johnston made no claim that he was subject to ex post facto 

punishment. Nor did Johnston argue at the hearing that he had satisfied his 

statutory burden of proof with respect to subsection (g). Rather, counsel urged: 

“The most significant thing to me seem[s] to be his last conviction in 2006, 

where he was convicted and found guilty but mentally ill, and I think that kind 

of sums up the whole thing.” (Tr. at 13.) Counsel then argued that “the most 

important thing” was facilitating Johnston’s relationships with his mental 

health treatment providers “in some hope for a better quality of life.” (Tr. at 

13.) In culmination, the trial court did not make particular findings relative to a 
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 7 of 9

change in the law as described in subsection (g) nor did the trial court address 

ex post facto punishment.

[11] On appeal, the State argues that Johnston did not establish his entitlement to 

relief from life-time registration requirements, and likely cannot do so. As a 

threshold matter, however, the State argues that the deficient petition should 

have been dismissed with prejudice, consistent with In re Ohio Conviction against 

Gambler, 939 N.E. 2d 1128 (Ind. Ct. App. 2011). Johnston concedes that he 

cannot establish grounds for relief relative to a change in the law as described 

by Indiana Code Section 11-8-8-22(g)(2), but argues that the trial court 

“implicitly” found that he had been subjected to an ex post facto punishment. 

Appellee’s Br. at 19.3 

[12] Notwithstanding his expansive view of the trial court’s order, Johnson did not 

present and develop an ex post facto punishment argument in the court below. 

Rather, Johnston essentially made an appeal for compassionate relief. Based 

 

3

Johnston directed our attention to Flanders v. State, 955 N.E.2d 732 (Ind. Ct. App. 2011), trans. denied. 

There, in post-conviction proceedings, an offender who was classified as a SVP after amendments to SORA 

challenged his designation on ex post facto grounds. Indiana Code Section 35-38-1-7.5 had been amended to 

clarify that certain convictions qualify an offender as a SVP by operation of law. It was also amended to 

disallow a person with two unrelated convictions for sex offenses to petition for removal of the SVP 

designation. The Flanders Court concluded “that a 2007 amendment that eliminated [Flanders’] eligibility to 

petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied 

to Flanders.” Id. at 735. The violation was to be remedied “by reinstating his eligibility to petition for a 

change in status after his initial ten-year requirement to register has passed.” Id. Accordingly, even if 

Johnston had made and succeeded upon a challenge like that in Flanders, the proper remedy would not have 

been the order for termination of registration at the ten-year mark as obtained by Johnston. Rather, Johnston 

would be afforded the opportunity to seek review of his future dangerousness or rehabilitation yearly after 

registering for ten years. See id. at 752-53. It is noteworthy, however, that neither of Flanders’ offenses, 

individually, would qualify him as an SVP as a matter of law. Id. at 747. 
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 8 of 9

upon the limited record before us, we agree with the position taken by the State 

at the hearing, that is, the petition was inadequate to afford the trial court an 

opportunity to provide Johnston relief. 

[13] In Gambler, an offender seeking removal from the Indiana sex offender registry 

sent a letter to the trial court and the trial court treated the letter as a motion for 

removal. 939 N.E.2d at 1129. The letter was not submitted under the penalties 

of perjury, did not list the required details for each conviction, and did not 

explicitly state in which jurisdictions he was required to register as a sex 

offender. Id. at 1131. Gambler obtained relief and the DOC appealed. A panel 

of this Court reversed the order granting relief:

Gambler’s letter was insufficient to raise the issue of whether the 

trial court would remove him from the sex offender registry. On 

the face of it, the trial court erred in determining Gambler’s letter 

provided sufficient information to proceed in this matter.

Further, even if Gambler’s letter was sufficient to constitute a 

petition under this statute, the trial court must either summarily 

dismiss it or give notice to several government actors and set the 

matter for a hearing before proceeding. Ind. Code § 11-8-8-22(e). 

Prior to granting a petition, the trial court must hold a hearing 

and make several particular findings. See Ind. Code § 11-8-8-

22(g). Here, the record does not indicate the trial court provided 

notice to the necessary government actors or held a hearing on 

the matter. Therefore, on the face of the record, DOC has 

demonstrated prima facie error in granting Gambler’s petition.

Gambler, 939 N.E.2d at 1131-32.
Court of Appeals of Indiana | Opinion 49A02-1606-CR-1222 | December 13, 2016 Page 9 of 9

[14] The infirmities in the instant petition and process are not exactly the same as 

those in Gambler, and Johnston advances an argument that is essentially one of 

substantial compliance. Here, notwithstanding an apparent deficiency in 

notice, an attorney appeared on behalf of the State at the hearing. Critically, 

however, the unsworn petition did not identify a statutory basis upon which 

relief could properly be granted and none was developed at the hearing. The 

focus of the limited testimony and argument was upon Johnston’s mental 

illness treatment and hardships, and the fact that his last conviction had been a 

GBMI conviction. Even so, there was no revelation of a statutory distinction 

between a conviction and a GBMI conviction under SORA. In these 

circumstances, the trial court did not – and could not properly – enter the 

requisite statutory findings. Lacking a proper statutory-based petition for relief, 

the trial court should have granted the State’s request for dismissal of 

Johnston’s petition.

Conclusion

[15] Because Johnston’s inadequate petition should have been dismissed, the denial 

of the motion to correct error was an abuse of the trial court’s discretion.

[16] Reversed and remanded with instructions that the trial court dismiss the matter 

without prejudice subject to further proceedings in the event Johnston files a 

sufficient petition.

Najam, J., and May, J., concur.