State of Indiana v. Kenneth R. Trisler (mem. dec.)
55A01-1604-CR-953
Ind. Ct. App.Nov 22, 2016Background
- In 2010 Kenneth R. Trisler pleaded guilty to child molesting (class C felony) and later registered as a sex offender upon his 2013 release.
- Indiana enacted Ind. Code § 35-42-4-14 (effective July 1, 2015), which made it a Level 6 felony for a "serious sex offender" (including those convicted of child molesting) to knowingly enter school property.
- Trisler was arrested on December 8, 2015 for entering Mooresville school property and was charged under the new unlawful-entry statute (Count I) and criminal trespass (Count II).
- Trisler moved to dismiss Count I on ex post facto grounds (as-applied), arguing the statute is punitive when applied to someone whose qualifying conviction predated the statute.
- The trial court granted the motion to dismiss Count I, finding the statute unconstitutional as applied to Trisler; the State appealed.
- The Court of Appeals reversed, applying the intent-effects test and concluding that, as applied to Trisler (a convicted child molester who entered school property after the statute took effect), the statute is regulatory and not punitive.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Trisler) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in dismissing the unlawful-entry count on ex post facto grounds | Statute not retroactive; new criminal act (entry) occurred after statute took effect; McVey supports non-punitive application | Statute punishes based on past conviction; transforms formerly lawful conduct into criminal conduct for those with pre-existing convictions; punitive as-applied | Reversed trial court: application to Trisler not an ex post facto violation; statute regulatory under intent-effects test |
Key Cases Cited
- Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (adopts intent-effects test for Indiana ex post facto analysis)
- Smith v. Doe, 538 U.S. 84 (U.S. 2003) (federal guidance on legislative intent inquiry in sex-offender statutes)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (U.S. 1963) (sets seven-factor effects test for determining punitive character)
- State v. Pollard, 908 N.E.2d 1145 (Ind. 2009) (applies Mendoza-Martinez factors; evaluates residency-restriction statute as punitive in context)
- McVey v. State, 56 N.E.3d 674 (Ind. Ct. App. 2016) (upheld application of the unlawful-entry statute to a pre-2015 child-molesting conviction; used as persuasive precedent)
- Price v. State, 622 N.E.2d 954 (Ind. 1993) (advises courts to assess actual operation of statute and avoid speculation about hypothetical applications)