Gerald M. Mitchell v. State of Indiana (NFP)
Annotate this Case
Download PDF
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. APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: GERALD M. MITCHELL New Castle, Indiana GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana FILED Sep 08 2010, 10:14 am IN THE COURT OF APPEALS OF INDIANA GERALD M. MITCHELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1003-CR-376 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-9704-CF-48098 September 8, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION MAY, Judge CLERK of the supreme court, court of appeals and tax court Gerald Mitchell appeals the denial of his Motion to Remove Sexually Violent Predator Status. As Mitchell s remedy is to file an amended petition under Ind. Code § 11-8-8-22, which established procedures for challenging one s status as a sex offender, we affirm. FACTS AND PROCEDURAL HISTORY In 1998, Mitchell entered a plea of guilty to Class A Felony child molesting1 and was sentenced to thirty years, with ten years suspended. Mitchell twice violated his probation, resulting in additional incarceration, and was released on June 16, 2010. During his incarceration, Mitchell discovered his listing on the Indiana Sex Offender Registry indicates he is a Sexually Violent Predator. On November 20, 2009, Mitchell filed a motion to remove that sexually violent predator status. The motion was denied. DISCUSSION AND DECISION Mitchell asserts he should not have been classified as a sexually violent predator by the Department of Correction without notice or hearing. See Ind. Code chapter 11-8-8 (governing sex offender registration) and Ind. Code § 35-38-1-7.5 (governing findings regarding sexually violent predators). According to Mitchell, when he committed his offense, the term sexual violent predator did not exist and there was no statute in effect that provided a procedure to determine him as a sexually violent predator. (Appellant s Br. at 8.) He cites Wallace v. State, 905 N.E.2d 371, 374-76 (Ind. 2009), and Jensen v. State, 905 N.E.2d 384 (Ind. 2009), arguing the application of the sexually violent predator statutes to him violates the prohibition against ex post facto laws. 1 Ind. Code § 35-42-4-3. 2 Mitchell s appeal is controlled by our recent decision in Wiggins v. State, 928 N.E.2d 837 (Ind. Ct. App. 2010), where we addressed a virtually identical situation. Wiggins, while incarcerated, filed a pro se motion to remove his status on the Indiana Sex Offender Registry as a sexually violent predator. He noted that when he committed his offenses, the term sexual violent predator did not exist and there was no statute in effect that provided a procedure to determine he was a sexually violent predator. The later application of that status to him, he argued, violated the prohibition against ex post facto laws. The trial court denied Wiggins motion. On appeal, we noted the 2010 session of the General Assembly enacted Ind. Code § 11-8-8-22, which established procedures for challenging one s status as a sex offender. The procedures set out in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender s circumstances, including the offender s full criminal history, dates of offenses, and reason for being required to register. Further, all interested parties are given notice of the proceedings. Id. at 840. We accordingly directed Wiggins to file a petition pursuant to Ind. Code § 11-8-8-22. For the same reasons, we affirm the denial of Mitchell s petition. Mitchell may file an amended petition in compliance with Ind. Code § 11-8-8-22. We direct the trial court in that county to consider such petition in light of the amended Ind. Code §11-8-8-22. Affirmed. ROBB, J., and VAIDIK, J., concur. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
