Bailey, J.
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”). …
On October 13, 2015, Johnston filed a “Request for Removal from Sex Offender Registry” … 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.
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. …
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. …
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.
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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) … 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.”
… 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. …
Johnson petitioned for, and was granted, relief from registration requirements pursuant to Indiana Code Section 11-8-8-22. … 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. …
According to subsection (h): “The petitioner has the burden of proof in a hearing under this section.” …
Here, the petition did not comply with the requirements of subsection (k). … 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). … In culmination, the trial court did not make particular findings relative to a change in the law as described in subsection (g) nor did the trial court address ex post facto punishment.
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 …, but argues that the trial court “implicitly” found that he had been subjected to an ex post facto punishment. …
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 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.
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… Lacking a proper statutory-based petition for relief, the trial court should have granted the State’s request for dismissal of Johnston’s petition.
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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.