Tavitas, J.
Stephan Peele appeals the dismissal of his verified petition for removal from the Indiana Sex Offender Registry (the “Registry”). We reverse and remand.
On a date that is unclear from the record, Peele was convicted in Shelby County for two counts of child molesting, as Class B felonies, and three counts of child molesting, as Class C felonies; he was subsequently sentenced on April 17, 1989, to an aggregate twelve-year term in the Department of Correction (“DOC”). On March 20, 2003, Peele pleaded guilty in Marion County to sexual misconduct with a minor, a Class C felony; he was sentenced to eight years in the DOC, with five years executed and three years suspended to probation.
It is unclear from the record precisely when Peele was notified that he was required to register as a sex offender for a ten-year period. Peele’s name was reportedly added to the Registry on June 10, 2005. In 2007, according to Peele, Peele was notified in a letter from the DOC, dated July 23, 2007, that he was considered a “sex and violent offender” and required to register for the remainder of his life.
On February 7, 2019, Peele filed, pursuant to Indiana Code Section 11-8-822(c), a verified petition for removal from the Registry in the Marion Superior Court under the cause number associated with his Marion County conviction. At the time, Peele resided in Marion County. Peele alleged that the registration requirement, as applied to him, violated Indiana’s prohibition on ex post facto laws. On April 22, 2019, the DOC, by senior deputy attorney general counsel, entered an appearance. The following day, the DOC filed a motion to dismiss Peele’s petition for lack of jurisdiction. After a hearing on May 10, 2019, the trial court dismissed Peele’s petition for lack of jurisdiction …
Peele argues that the trial court erred when it dismissed his verified petition for removal from the sex offender registry. The State appears to concede that the trial court, in fact, had subject matter jurisdiction to consider Peele’s petition; however, the State maintains that Peele did not bring the proper form of action under a proper cause. …
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The plain language of Indiana Code Section 11-8-8-22(d) clearly confers subject matter jurisdiction upon the circuit or superior court in the county in which the offender resides to accept filing of, set a hearing on, and consider, grant, or deny an offender’s petition for removal from the Registry. See Clampitt v. State, 932 N.E.2d 1256, 1258 (Ind. Ct. App. 2010) …
Although the trial court had subject matter jurisdiction, the State argues: “The procedure set out in Indiana Code Section 11-8-8-22 … says that a petition must be filed in the county in which the offender resides but does not specify that it be filed in the criminal case that gave rise to the registration obligation being challenged”; and “. . .[t]he obligation is to file a new declaratory judgment case and to get a new cause number.” … The trial court relied on Kirby to support its dismissal of Peele’s petition.
In Kirby v. State, 95 N.E.2d 518, 520-21 (Ind. 2018), our Supreme Court found that Kirby improperly challenged a statutory restriction on Kirby’s entry onto school grounds—a collateral consequence of Kirby’s conviction—under postconviction rules, which govern challenges to a conviction or to a sentence. …
Although Indiana Code Section 11-8-8-22 is silent as to whether a declaratory judgment filing must be brought in a separate, civil cause or within a criminal cause under a qualifying court, Kirby—which our Supreme Court handed down in April 2018—supports a finding that an offender may pursue relief in each of these ways. …
Based on the foregoing, we find that: (1) no legal impediment exists to the trial court’s legal authority to consider the merits of Peele’s petition for relief under Indiana Code Section 11-8-8-22; and (2) Peele properly brought his petition for removal from the Registry within a criminal cause in a qualifying court. The trial court erred in dismissing Peele’s petition.
The trial court erred in dismissing Peele’s petition for removal from the Registry; accordingly, we reverse and remand with instructions to the trial court to consider the merits of Peele’s petition.
Reversed and remanded.
Najam, J., and Vaidik, J., concur.