MITCHELL v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Andrew Mitchell appeals the trial court's finding that he is a sexually violent predator (SVP), which was determined at the conclusion of his probation revocation proceeding. Concluding the court's determination is error, we reverse and remand with instructions to vacate the finding.

Facts and Procedural History

[2] Mitchell pleaded guilty to battery resulting in moderate bodily injury and criminal confinement and agreed to a 910-day suspended sentence on the confinement count. While Mitchell was serving the suspended sentence, he was arrested for possession of child pornography. As a result, his probation officer filed a petition to revoke his probation.

[3] At the conclusion of the evidentiary hearing, the trial court found that the State proved by “a preponderance of the evidence that [Mitchell] committed the offense of possession of child pornography” and thus violated the terms and conditions of his probation. Tr. Vol. II, p. 31. Then, the trial court took the matter under advisement and sua sponte appointed a doctor to evaluate Mitchell and make a recommendation as to whether Mitchell is a SVP.

[4] Mitchell was evaluated and, at the dispositional hearing, the trial court revoked his probation, ordered him to serve the balance of his sentence, and found he “[met] the criteria for a sexually violent predator.” Id. at 43. This appeal ensued.

Discussion and Decision

[5] Mitchell argues, and the State concedes, the trial court erred when it declared him a SVP during his probation revocation proceeding. Generally, a trial court's decisions for probation violations are reviewed for abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.” Id.

[6] Under Indiana Code section 35-38-1-7.5 (2020), an offender may be classified as a SVP in one of two ways. First, the offender may be automatically classified as a SVP based on the type of offense. Ind. Code § 35-38-1-7.5(b). Second, the trial court may classify the offender as a SVP following a request from the prosecution and two psychologist or psychiatrist evaluations. Ind. Code § 35-38-1-7.5(e). This is generally done in conjunction with the offender's sentencing hearing. Id.

[7] Our Supreme Court has long held “the SVP statute does not authorize a trial court to initiate an SVP determination for the first time during a probation revocation proceeding.” Jones v. State, 885 N.E.2d 1286, 1287 (Ind. 2008). This is precisely the action the trial court took here. Only when the State sought to revoke Mitchell's probation did the trial court appoint a doctor to evaluate Mitchell for the purpose of making a recommendation as to whether Mitchell was a SVP. Consequently, the trial court abused its discretion.

[8] Moreover, neither subsection of the SVP statute applies here. First, Mitchell was convicted of battery resulting in moderate bodily injury and criminal confinement. This battery offense is not included in the automatic classification under Subsection 35-38-1-7.5(b). The confinement offense is included in Subsection (b), but is applicable only “if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim's parent or guardian.” Ind. Code § 11-8-8-4.5(a)(12) (2020). On appeal, the record reveals there was no evidence of the victim's age or Mitchell's relationship to the victim presented at the time the judgment of conviction was entered. Thus, Subsection 35-38-1-7.5(b) does not apply. Additionally, at the time Mitchell pleaded guilty and was sentenced, the prosecution did not request, and the trial court did not order, Mitchell classified as a SVP. Thus, Subsection 35-38-1-7.5(e) does not apply either.

Conclusion

[9] The trial court abused its discretion when it found that Mitchell was a SVP for the first time during his probation revocation proceeding. We reverse the trial court's determination and remand with instructions for the court to vacate the SVP finding.

[10] Reversed and remanded with instructions.

Baker, Senior Judge.

Foley, J., and Scheele, J., concur.