CRITTENDEN v. STATE (2025)

MEMORANDUM DECISION

[1] Lamarr T. Crittenden, pro se, filed a petition for post-conviction relief following his 2015 resentencing for his 2009 convictions of Class A felony child molesting ¹ and Class C felony child molesting.² The State filed a motion for summary disposition of his petition. Following argument by the parties, the post-conviction court granted summary disposition to the State on Crittenden's claim that ordering him to serve lifetime parole violated the constitutional prohibition against ex post facto punishments. The post-conviction court then set the remainder of Crittenden's petition for hearing. When Crittenden failed to appear for that hearing, the State moved for dismissal of his remaining petition, and the post-conviction court dismissed Crittenden's remaining petition with prejudice.

[2] Crittenden presents three issues for our review, which we consolidate and restate as:

1. Whether the State was entitled to summary disposition of Crittenden's ex post facto claim regarding lifetime parole requirements; and

2. Whether the post-conviction court erred when it dismissed the remainder of Crittenden's petition after he failed to appear for the evidentiary hearing.

We reverse the summary disposition of Crittenden's ex post facto claim because a genuine issue of fact exists for the post-conviction court to resolve regarding the timing of Crittenden's crimes, but we affirm the dismissal of his remaining petition due to his failure to appear at trial. Therefore, we remand for further proceedings on only Crittenden's ex post facto claim.

Facts and Procedural History

[3] During Crittenden's direct appeal, we gave the following recitation of the facts underlying Crittenden's convictions:

In 2006, Crittenden began cohabiting with Shontae Matlock and her daughter D.M., born February 8, 1999, on Denny Street in Indianapolis. On one occasion during 2007 or 2008, Crittenden entered D.M.’s bedroom while she was sleeping and ordered her to perform fellatio on him. When she refused, Crittenden placed his hand inside her vagina and moved it around. He then performed anal intercourse on her. Crittenden admonished D.M. not to tell anyone about the incident. Nevertheless, D.M. told her mother, who refused to believe her allegations. On May 11, 2008, D.M. reported the incident to her aunt, Lawanna Smith, who took her to the hospital for a medical examination.

Crittenden v. State (Crittenden I), No. 49A05-0906-CR-355, 2010 WL 199311 at *1 (Ind. Ct. App. Jan. 21, 2010) (mem.), trans. denied. The State charged Crittenden with two counts of Class A felony child molesting and two counts of Class C felony child molesting. Id. In 2009, the trial court convicted Crittenden of one count each of Class A felony child molesting and Class C felony child molesting. Id. The trial court imposed a thirty-five-year sentence, with five years suspended. Crittenden v. State (Crittenden II), No. 49A05-1405-PC-227, 2015 WL 3965812 at *2 (Ind. Ct. App. June 30, 2015) (mem.), trans. denied.

[4] On direct appeal, Crittenden challenged the sufficiency of the evidence proving territorial jurisdiction, and we affirmed the trial court's judgment. Crittenden I, 2010 WL 199311 at *1. Crittenden then filed a petition for post-conviction relief that asserted ineffective assistance of trial and appellate counsel. Crittenden II, 2015 WL 3965812 at *1. The post-conviction court determined Crittenden's trial counsel provided ineffective assistance by stating at sentencing that the statutory minimum sentence for a Class A felony was thirty years, rather than the twenty years provided by statute. Id. at *5. It also determined his appellate counsel was ineffective for not raising the issue on appeal. Id. The post-conviction court ruled against Crittenden on the remainder of the issues raised in his petition, but it remanded to the trial court for resentencing based on counsel's erroneous statement at sentencing. Id. The post-conviction court's determination was affirmed on appeal. Id. at *18.

[5] At the resentencing hearing in 2015, the trial court imposed the same sentence – thirty-five years, with five years suspended. Crittenden v. State (Crittenden III), No. 49A04-1512-CR-2183, 2017 WL 961897 at *1 (Ind. Ct. App. Mar. 13, 2017) (mem.), trans. denied. Crittenden filed a direct appeal of his new sentence, which was affirmed on appeal. Id. at *3.

[6] In 2020, while still serving his executed sentence, Crittenden filed a petition to challenge what he alleged were “ ‘excessive’ ” and “ ‘unconstitutional’ ” probation conditions. Crittenden v. State (Crittenden IV), No. 20A-CR-1663, 2021 WL 1150200 at *1 (Ind. Ct. App. Mar. 26, 2021) (mem.) (quoting Crittenden's petition). The trial court denied his petition without any further proceedings, and Crittenden appealed. We held Crittenden had waived his claim because he had not challenged his probation conditions before the trial court at resentencing or before this court during his direct appeal from his resentencing. Id. at *2. Waiver notwithstanding, we noted the statute Crittenden had cited to support his right to bring his petition, Indiana Code section 35-38-2-1.8, “does not provide a defendant with a mechanism to challenge his probation conditions.” Id.

[7] On April 9, 2021, Crittenden filed the current petition for post-conviction relief. The public defender withdrew on April 12, 2022, and Crittenden thereafter proceeded pro se. On January 23, 2023, Crittenden requested permission to file an amended petition for post-conviction relief. The post-conviction court granted that motion, and Crittenden added a claim that application to him of Indiana's lifetime parole statute constituted ex post facto punishment.

[8] The post-conviction court held a status conference on March 30, 2023. During that hearing, the State moved for summary disposition of Crittenden's ex post facto claim. Crittenden was given time to file his written response, and then on September 1, 2023, the post-conviction court summarily disposed of Crittenden's ex post facto claim. The court scheduled the remaining allegations in Crittenden's petition for an evidentiary hearing on January 18, 2024, at 10:00 a.m., and advised Crittenden that failure to appear would result in dismissal of his petition. Crittenden failed to appear at the hearing. The State moved to dismiss the remaining allegations, and the post-conviction court dismissed Crittenden's remaining claims with prejudice.

Discussion and Decision

[9] “Post-conviction proceedings are civil proceedings in which a person may present limited challenges to a criminal conviction or a sentence.” Aguilar v. State, 162 N.E.3d 537, 540 (Ind. Ct. App. 2020), trans. denied. “The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019). Issues that could have been raised on direct appeal are waived, and issues that were decided on direct appeal may not be relitigated. Id. “The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5).

1. Summary disposition of ex post facto claim

[10] Pursuant to Section 3(g) of Post-Conviction Rule 1:

The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

Our review of a motion for summary disposition in post-conviction proceedings is the same as our review of a motion for summary judgment in other contexts. Aguilar, 162 N.E.3d at 540. We review the issue de novo and will affirm summary disposition in favor of the State if there are no genuine issues of material fact and the State was entitled to judgment as a matter of law. Id.

[11] Crittenden argues the post-conviction court improperly granted summary disposition on his ex post facto claim. Our federal and state constitutions prohibit “laws that impose punishment beyond what was prescribed at the time the act was committed.”³ Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016). “The principle fundamental to this prohibition is that people have a right to fair warning of the criminal penalties that may result from their conduct.” Id. While the federal and state provisions have similar language and while we apply the federal “intent-effects test” to determine “whether the statute imposes punishment[,]” id. at 93, we may find an ex post facto violation of our state provision when a federal argument fails. Id. at 92 (“although federal authority may assist in our analysis, we may find our Indiana provision dictates a different outcome”).

[12] According to Crittenden, the application to him of the lifetime parole requirement, which is found in more recent versions of Indiana Code section 35-50-6-1(e), is an ex post facto punishment. He asserts the statutory subsection imposing the lifetime parole requirement “only applies to an offender that commits an offense on or after 7-1-06[.]” (Appellant's App. Vol. II at 29.) Crittenden's petition included a copy of the charging information for his crimes, which alleged he committed the acts “on or about or between February 8, 2006 and February 7, 2007[.]” (Id. at 47-8.) Therefore, Crittenden concludes, the version of Indiana Code section 35-50-6-1 that should apply to him is the earlier version that contains only a ten-year parole requirement.

[13] “Generally, the sentencing statutes in effect at the time a defendant commits an offense govern the defendant's sentence.” Whittaker v. State, 33 N.E.3d 1063, 1065 (Ind. Ct. App. 2015). However, we do not know when Crittenden's crime was committed. The charging information Crittenden provided indicates his crimes occurred “between February 8, 2006 and February 7, 2007[.]” Appellant's App. Vol. II at 47-8.) The opinion deciding Crittenden's direct appeal indicates his crimes occurred “during 2007 or 2008[.]” Crittenden I, 2010 WL 199311 at *1. Moreover, the statute at issue – Indiana Code section 35-50-6-1 – was amended multiple times around the time of Crittenden's crimes, which makes the determination of the timing of his crimes a genuine issue of material fact that precludes summary disposition of his claim.

[14] From January 1, 2003, to June 30, 2006, the statute explaining parole requirements for those who had committed felonies provided, in relevant part:

(d) When an offender (as defined in IC 5-2-12-4) completes the offender's fixed term of imprisonment, less credit time earned with respect to that term, the offender shall be placed on parole for not more than ten (10) years.

Ind. Code § 35-50-6-1 (2003). Crittenden was “an offender” for purposes of that subsection because he was convicted of child molesting as defined by Indiana Code section 35-42-4-3. See Ind. Code § 5-2-12-4 (2003) (defining “offender” as including person convicted of child molesting). Thus, if his crimes occurred before July 1, 2006, the presumption is that he was entitled to serve only ten years of parole.

[15] As of July 1, 2006, that felony parole statute in Indiana Code section 35-50-6-1 was modified to provide:

(d) This subsection does not apply to a person who is a sexually violent predator under IC 35-38-1-7.5. When a sex offender (as defined in IC 11-8-8-5) completes the sex offender's fixed term of imprisonment, less credit time earned with respect to that term, the sex offender shall be placed on parole for not more than ten (10) years.

(e) This subsection applies to a person who is a sexually violent predator under IC 35-38-1-7.5. When a sexually violent predator completes the person's fixed term of imprisonment, less credit time earned with respect to that term, the person shall be placed on parole for the remainder of the person's life.

Pursuant to the version of Indiana Code section 35-38-1-7.5 that became effective July 1, 2006, a person who committed child molesting “as a Class A or Class B felony” was automatically classified a sexually violent predator. See Ind. Code § 35-38-1-7.5 (effective July 1, 2006); P.L. 173-2006 § 21. Crittenden was convicted of Class A felony child molesting, which suggests he was a sexually violent predator. However, the Public Laws that enacted the modification to the parole statute effective July 1, 2006, also instructed that the lifetime parole requirement applied “only to crimes committed after June 30, 2006.” Ind. P.L. 140-2006 § 44; Ind. P.L. 173-2006 § 59. Thus, Crittenden could be obligated to serve lifetime parole only if his crimes occurred after July 1, 2006, or if the modification from ten-years of parole to lifetime parole was not an ex post facto punishment.⁴

[16] The State's motion for summary disposition asserted the post-conviction court should summarily deny Crittenden's ex post facto argument based on the version of Indiana Code section 35-50-6-1(e) that became effective on July 1, 2007. (See Appellant's App. at 41) (quoting version of Ind. Code § 35-50-6-1 adopted in P.L. 216-2007 § 51). On the same page of its motion, the State argued “petitioner engaged in child molesting between February 2007 and February 2008[.]” (Id.) That date range is not the timeframe charged for Crittenden's crimes. (Id. at 47-8.) Instead, it is the date range indicated in the opinion deciding Crittenden's direct appeal. Crittenden I, 2010 WL 199311 at *1 (indicating Crittenden's crimes occurred “during 2007 or 2008”).

[17] On appeal, the State concedes it was not entitled to summary disposition of Crittenden's ex post facto claim because a genuine issue of material fact exists about when Crittenden's crimes occurred and, thus, about which version of Indiana Code section 35-50-6-1 controls. We agree. Accordingly, we reverse the post-conviction court's summary disposition of Crittenden's ex post facto claim regarding his parole obligation, and we remand that issue for further proceedings. See, e.g., Binkley v. State, 993 N.E.2d 645, 651 (Ind. Ct. App. 2013) (reversing post-conviction court's grant of summary disposition because genuine issues of fact precluded judgment for the State).

2. Dismissal of remaining petition after failure to appear

[18] Crittenden also argues the post-conviction court erred by dismissing the remainder of his petition when he failed to appear for the evidentiary hearing scheduled for January 18, 2024. Crittenden relies on Colvin v. State, 501 N.E.2d 1149 (Ind. Ct. App. 1986), wherein we held a post-conviction court erred by summarily denying a post-conviction petition when the public defender had not yet filed an amended petition on behalf of the petitioner because the post-conviction court instead should have issued a show cause order demanding explanation for the delay. Id. at 1150. Colvin is irrelevant, however, to the circumstances herein, because it dealt with counsel's failure to timely file an amended petition, while Crittenden failed to appear for his scheduled trial.

[19] Crittenden's circumstances are more akin to Sanders v. Carson, 645 N.E.2d 1141 (Ind. Ct. App. 1995). There, Sanders sued Carson for falsely accusing Sanders of sexual harassment. Id. at 1142. At a pre-trial conference in July 1993, trial was set for October 25, 1993, at Sanders's request. Id. Sanders, however, did not appear for trial, so Carson asked the trial court to dismiss Sanders's complaint with prejudice, which the trial court did. Id. Sanders thereafter moved to set aside the dismissal, which the trial court denied, id., and Sanders filed a motion to correct error, which the trial court also denied. Id. at 1143.

[20] On appeal, Sanders argued the trial court improperly dismissed his complaint with prejudice. We noted that Sanders had “failed to appear to present evidence in meeting his burden of proof as a plaintiff[,]” and that “[w]hen a plaintiff has an opportunity to present evidence and, absent mistake, surprise or excusable neglect, fails to present evidence, the plaintiff will be treated as though he waived his right to present evidence in support of his pleading.” Id. Without any evidence in support of Sanders's complaint, the trial court had been authorized to dismiss his pleading based on Trial Rule 41, which allows judgment to be entered for a defendant when a plaintiff's evidence demonstrates the plaintiff is not entitled to relief. Id.

[21] Herein, the post-conviction court informed Crittenden that the evidentiary hearing would be held at 10:00 a.m. on January 18, 2024. The court moreover specifically advised Crittenden that failure to appear could result in dismissal of his petition. Nevertheless, Crittenden failed to appear to present evidence in support of his petition. We accordingly cannot say the post-conviction court erred by dismissing the remainder of Crittenden's petition. See id. (holding trial court properly dismissed plaintiff's complaint when plaintiff failed to appear at trial).

Conclusion

[22] The post-conviction court properly dismissed the remainder of Crittenden's petition when he failed to appear for the evidentiary hearing, and we accordingly affirm that portion of the court's judgment. However, the post-conviction court improperly granted summary disposition to the State on Crittenden's claim that the order that he serve lifetime parole constitutes ex post facto punishment because genuine issues of material fact exist about the timing of Crittenden's crimes and, therefore, which parole statute applies to Crittenden. We accordingly reverse the summary disposition and remand for further proceedings in accordance with this opinion.

[23] Affirmed in part, reversed and remanded in part.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(3) (1998).

2.   Ind. Code § 35-42-4-3(b) (1998).

3.   The federal provision states: “No state shall ․ pass any ․ ex post facto law[.]” U.S. Const. art. I, § 10. The state provision provides: “No ex post facto law ․ shall ever be passed.” Ind. Const. art 1, § 24.

4.   The post-conviction court concluded the application of a subsequent version of the lifetime parole statute to Crittenden did not produce an ex post facto violation because our Indiana Supreme Court has held the application of subsequent versions of the Sex Offender Registration Act (“SORA”) to sexually violent predators did not constitute ex post facto punishment. (Appellant's App. Vol. II at 56) (citing Lemmon v. Harris, 949 N.E.2d 803, 813 (Ind. 2011)). We reject the post-conviction court's reliance on Lemmon for at least two reasons: (1) the fact that the legislature dealt separately with registration and parole suggests the two programs are sufficiently dissimilar to justify separate analysis of whether the imposition of additional parole is “punishment” for ex post facto purposes, especially when the legislature explicitly indicated the lifetime parole requirement was to apply only to crimes committed after the statute became effective; and (2) Crittenden is not challenging that he can be classified as a sexually violent predator who is required to register for life.

May, Judge.

Tavitas, J., and DeBoer, J., concur.