32 N.E.3d 834
Ind. Ct. App.2015Background
- In 1992 Scott Zerbe was convicted in Michigan of second-degree criminal sexual conduct for conduct occurring in 1991; Michigan required him to register as a sex offender for 25 years after his 1999 release.
- Indiana enacted its Sex Offender Registration Act (SORA) in 1994 and amended it in 2006–2007 to require persons who must register in any jurisdiction to register in Indiana for at least the period required by the other jurisdiction.
- Zerbe moved to Indiana in December 2012 and, under SORA, was required to register for the remainder of Michigan’s registration period.
- Zerbe petitioned the trial court to remove his sex-offender designation, arguing SORA (as applied to him) violated Indiana’s ex post facto prohibition because SORA was enacted after his crime and he lacked fair warning he would face registration.
- The trial court granted Zerbe’s petition; the State appealed. The Court of Appeals reversed, holding SORA did not violate the ex post facto clause as applied to Zerbe.
Issues
| Issue | Zerbe's Argument | State's Argument | Held |
|---|---|---|---|
| Whether applying SORA to Zerbe violates Indiana’s ex post facto prohibition | Zerbe: SORA was enacted after his offense so he lacked fair warning; applying it increases punishment | State: Zerbe had fair warning when he moved to Indiana and SORA imposed no new punishment because he already had a registration duty in Michigan | Reversed — no ex post facto violation as applied: Zerbe had fair warning and no additional punishment was imposed |
| Relevant date for ex post facto analysis | Zerbe: date of original conviction (1992) controls | State: date of relocation to Indiana (2012) is controlling for persons who subsequently subject themselves to Indiana law | Court: focus on date of relocation/when subject to Indiana law; SORA’s 2006 amendments meant the duty existed before Zerbe moved |
| Whether out-of-state registration obligation can be reduced by moving to Indiana | Zerbe: moving should not increase or maintain a registration obligation enacted after his conviction | State: allowing reduction would improperly permit forum-shopping to lessen punishment | Held: Legislature reasonably required out-of-state registrants to continue obligations to prevent reduction of punishment by relocation |
| Whether Wallace and related precedents control to bar SORA application | Zerbe: Wallace and some panels support prohibition where offense predates SORA | State: those cases are distinguishable because here registrant was already subject to out-of-state registration and SORA’s amendments predated relocation | Held: Court distinguishes Wallace and follows Tyson/Sewell reasoning; Wallace’s facts (crime + sentence before SORA enactment) are not controlling here |
Key Cases Cited
- Seales v. State, 4 N.E.3d 821 (Ind. Ct. App. 2014) (explaining ex post facto analysis and fair-warning principle)
- Sewell v. State, 973 N.E.2d 96 (Ind. Ct. App. 2012) (upholding residency-based restriction applied after statute enactment)
- Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015) (holding SORA not ex post facto as applied to out-of-state registrant who moved to Indiana after SORA amendments)
- Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (holding SORA punitive and its application to pre-enactment offenders violated Indiana’s ex post facto clause)
- Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012) (panel held SORA application unconstitutional where qualifying offense predated SORA)
- Hemmings v. United States, 258 F.3d 587 (7th Cir. 2001) (discussing antecedent facts and ex post facto analysis)
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (defining ex post facto prohibition as forbidding laws that increase punishment for past acts)