36 N.E.3d 1079
Ind. Ct. App.2015Background
- Kevin Ammons was convicted of child molesting (Class A felony) in Indiana in 1989 and released on parole in 2006; he later moved to Iowa (2009–2013) and served probation for failing to register as a sex offender in Iowa in 2011.
- In February 2014 Lake County notified Ammons he was required to register as a sexually violent predator (SVP) under Indiana law; Ammons filed a pro se petition to remove the SVP designation asserting an ex post facto violation.
- The trial court initially granted relief, then vacated that order, held an evidentiary hearing, and ultimately denied Ammons’ petition, directing lifetime SVP registration.
- The appellate court applied the Mendoza-Martinez (intent-effects) factors to determine whether retroactive application of the Act is punitive and thus violates the Ex Post Facto Clause of the Indiana Constitution.
- The majority found several Mendoza-Martinez factors favored a punitive characterization but placed significant weight on the statute’s availability of a post-ten-year individualized review (I.C. § 35-38-1-7.5(g)) and related statutory petition mechanisms, and concluded Ammons failed to carry his burden.
- A dissent argued Wallace controls and that applying lifetime registration to Ammons (whose underlying crime predated the registry) violates the Indiana Ex Post Facto Clause; the dissent would have reversed.
Issues
| Issue | Ammons' Argument | State's Argument | Held |
|---|---|---|---|
| Whether applying Indiana’s SVP/lifetime registration to Ammons violates the Ex Post Facto Clause | Retroactive punishment: his underlying crime (1988) predated the Act, so lifetime registration is an unconstitutional ex post facto penalty | No ex post facto problem: analysis should focus on later events (e.g., his return to Indiana); he voluntarily came under current law; statute applies by operation of law | Court affirmed denial: applying the Act did not violate Indiana’s Ex Post Facto Clause as applied to Ammons |
Key Cases Cited
- Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (adopted intent-effects test and held registry applied retroactively to pre-enactment offenders could violate Indiana Ex Post Facto Clause)
- Jensen v. State, 905 N.E.2d 384 (Ind. 2009) (plurality: certain retroactive lifetime-registration amendments need not be punitive when offender was already required to register)
- Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011) (applied Jensen; held SVP designation with lifetime registration did not violate ex post facto)
- Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013) (discussed registry’s burdens and Mendoza-Martinez factors)
- Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012) (held date of original offense governs ex post facto analysis for registry claims)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (Supreme Court factors used to assess whether civil measures are punitive)