May, J.
Johnny W. Brown appeals following his conviction of Class C felony child molesting. Brown raises three issues on appeal, but we find one dispositive. We revise and restate that issue as whether retroactive application of a statute intended to cure a jurisdictional gap violates the ex post facto clause of the United States Constitution when the jurisdictional gap prevented the State from prosecuting the defendant for the alleged criminal act before the General Assembly enacted the statute. We reverse and remand.
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Brown asserts the juvenile court lost subject matter jurisdiction when he turned twenty-one years old and, therefore, the juvenile court lacked the authority to transfer his case to the criminal court. Brown initially challenged the juvenile court’s jurisdiction before the juvenile court, and he renewed his jurisdictional challenge through a motion to correct error filed after his trial in criminal court. “Lack of subject matter jurisdiction can be raised at any time[.]” B.P. Amoco Corp. v. Szymanski, 808 N.E.2d 683, 686 (Ind. Ct. App. 2004), reh’g denied, trans. denied.
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In D.P., our Indiana Supreme Court consolidated two appeals that “present[ed] strikingly similar facts and concern[ed] a single issue: a juvenile court’s ability to waive an individual who is twenty-one or older into adult criminal court.” Id. at 1212. In the first case, the State filed a petition in January 2019 in juvenile court against D.P., who was then twenty-three years old, alleging that when D.P. was sixteen years old he committed an act that would be Class B felony child molesting if committed by an adult. Id. In the other case, the State filed a petition against N.B., who was then twenty-one years old, alleging that when he was between the ages of twelve and fifteen, he committed an act that would be Class B felony child molesting if committed by an adult. Id. In both cases, the State filed a motion asking the juvenile court to waive jurisdiction and transfer the matter to adult criminal court. Id. D.P. moved to dismiss the delinquency petition and argued the juvenile court lacked subject matter jurisdiction. Id. The juvenile court denied D.P.’s petition, and D.P. pursued an interlocutory appeal. Id. N.B. also moved to dismiss the delinquency petition based on the juvenile court’s lack of subject matter jurisdiction. Id. The juvenile court granted N.B.’s petition, and the State appealed. Id. at 1212-13.
Our Indiana Supreme Court explained that juvenile courts possess limited subject matter jurisdiction and may exercise jurisdiction over cases only when permitted by statute. Id. at 1213. The Court noted that “a juvenile court has ‘exclusive’ subject matter jurisdiction over proceedings in which a ‘child’ is alleged to be delinquent.” Id. (quoting Ind. Code § 31-30-1-1(1) (2020)). The Court then observed: The term “child” for juvenile law purposes, is defined as (1) a person less than eighteen; (2) a person eighteen, nineteen, or twenty and who either is charged with a delinquent act committed before the age of eighteen or has been adjudicated a child in need of services before eighteen; or (3) a person less than twenty-one and who has allegedly committed what would be murder when less than eighteen. Id. at 1213-14 (quoting Ind. Code § 31-9-2-13(d) (2019)). The Court explained that “a juvenile court does not have subject matter jurisdiction to adjudicate individuals who are twenty-one or older, like D.P. and N.B., delinquent.” Id. at 1214. The Court then moved on to the related question of whether the juvenile court still possessed the limited authority to waive D.P. and N.B. into adult criminal court. Id. The Court looked to Indiana Code sections 31-30-3-5 (2014) and 31-30-3-6 (1997), the two statutes authorizing juvenile court waiver into adult criminal court, and noted that the waiver statutes applied only if the alleged offender is a “child.” Id. at 1216. The Court then held that the juvenile courts lacked subject matter jurisdiction to waive D.P. and N.B. into adult criminal court “because neither fit the definition of a ‘child’ at the time their respective delinquency petitions were filed.” Id. at 1217.
Two years later, our Indiana Supreme Court reiterated its holding in D.P. and addressed the question of whether the State could file charges directly in criminal court if the State did not learn of the alleged molestation until after the alleged offender turned twenty-one: In 2020, we held juvenile courts lose jurisdiction once an alleged delinquent child reaches twenty-one years of age. But we left open the question whether the State can file criminal charges against a person who committed the charged conduct before turning eighteen but is no longer a child under the juvenile code. Under the governing statutes, a child’s delinquent act does not ripen into a crime when the child ages out of the juvenile system. The result is that neither the juvenile court nor the circuit court has jurisdiction here. In short, this case falls within a jurisdictional gap only the legislature can close. State v. Neukam, 189 N.E.3d 152, 152-53 (Ind. 2022).
Brown was over the age of twenty-one when the juvenile court held an evidentiary hearing regarding whether to waive Brown to adult criminal court. Brown was born on August 27, 1998, and the State filed its delinquency petition against Brown on August 26, 2019, the day before Brown turned twenty-one. The waiver hearing occurred on March 2, 2020. Pursuant to the waiver and jurisdiction statutes in effect at the time of Brown’s waiver hearing, Brown fell into the jurisdictional gap described in D.P. and Neukam. Neither the juvenile court nor the adult criminal court possessed jurisdiction to try Brown when he was twenty-one for an alleged act of child molestation that occurred when Brown was between fourteen and seventeen years old. See, e.g., State v. Pemberton, 186 N.E.3d 647, 655 (Ind. Ct. App. 2022) (holding neither juvenile court nor adult criminal court had jurisdiction over twenty-three-year-old defendant for alleged act of child molestation that occurred when defendant was sixteen), trans. denied.
Despite this jurisdictional gap, the State contends legislative amendments to Indiana Code section 31-30-1-4 and Indiana Code section 31-37-1-2, which became effective on July 1, 2023, apply retroactively, to allow the criminal court to exercise jurisdiction over Brown. During the 2023 legislative session, the General Assembly enacted Public Law 115-2023. Section seven of Public Law 115-2023 amended Indiana Code section 31-30-1-4 to include a subsection (d), which states:
(d) A court having adult criminal jurisdiction, and not a juvenile court, has jurisdiction over a person who is at least twenty-one (21) years of age for an alleged offense:
(1) committed while the person was a child; and
(2) that could have been waived under IC 31-30-3.
Section nine of Public Law 115-2023 modified Indiana Code section 31-37-1-2 to provide:
A child commits a delinquent act if, before becoming eighteen (18) years of age, the child commits a misdemeanor or felony offense, except for an act committed by a person over which the juvenile court lacks jurisdiction under IC 31-30-1.
Thus, under the amended statutes, the State may file charges directly in an adult criminal court against an individual who is over twenty-one years old for acts the individual committed before turning eighteen years old if the juvenile court could have waived jurisdiction over the individual had the State brought the charges while the individual was still under twenty-one years old.
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Brown argues that “[o]nce Brown turned twenty-one (2019) and had not been waived to adult criminal court, he no longer faced liability for any punishment for an act of child molest he is alleged to have committed while still a child.” (Appellant’s Reply Br. at 8.) Thus, Brown argues, if the 2023 amendments were to retroactively apply to him, it “would create liability where none existed when the new law was enacted, and thus would violate . . . the federal ex post facto clause.” (Id.) We agree. As we explained above, the juvenile court lost jurisdiction when Brown turned twenty-one, and the criminal court lacked jurisdiction at that time to try Brown for behavior that he allegedly committed as a juvenile. Therefore, just as Stogner was free of criminal liability after the statute of limitations period expired, Brown was free of liability when he turned twenty-one because no court possessed jurisdiction. Retroactive application of the 2023 amendments would impose punishment on Brown for an act for which he was not subject to punishment when the amendments were enacted, and this is prohibited by the United States Constitution. See Stogner, 123 S. Ct. at 2461; see also Swopshire v. State, 177 N.E.3d 98, 104-05 (Ind. Ct. App. 2021) (holding State could not revive time barred prosecution through retroactive application of a statute that extended the statute of limitations period), trans. denied. We therefore reverse Brown’s conviction and remand with instructions for the trial court to dismiss the case. See, e.g., K.C.G. v. State, 156 N.E.3d 1281, 1285 (Ind. 2020) (vacating juvenile delinquency adjudication and remanding with instructions for juvenile court to dismiss case because of a lack of subject matter jurisdiction).
When Brown turned twenty-one years old, his case fell into the jurisdictional gap our Indiana Supreme Court identified in D.P. and Neukam. While statutes that became effective on July 1, 2023, cured this jurisdictional gap, retroactive application of these statutes to Brown would violate his right under the United States Constitution to be free of ex post facto laws. Therefore, we reverse Brown’s conviction and remand with instructions for the trial court to dismiss.
Reversed and remanded.
Bailey, J., and Felix, J., concur.