Andre Gonzalez v. State of Indiana
Case Information
*1 FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BENJAMEN W. MURPHY GREGORY F. ZOELLER Lаw Office of Ben Murphy Attorney General of Indiana Merrillville, Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ANDRE GONZALEZ, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1108-CR-369 )
STATE OF INDIANA, )
)
Appellee-Plaintiff. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Clarence D. Murray, Judge The Honorable Natalie Bokota, Magistrate Cause No. 45G02-9606-CF-180 March 16, 2012 OPINION - FOR PUBLICATION
MAY, Judge
Andre Gonzalez appeals the denial of his petition to remove his sex offender
designation pursuant to
FACTS AND PROCEDURAL HISTORY
On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation based on
his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three
years, with eighteen months incarcerated and eighteen months on probation. On September
15, 1999, Gonzalez was discharged from probation and began registering as a sex offender,
which he wоuld be required to do for ten years pursuant to the Sex Offender Registry Act
(SORA).
Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the details of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement. On January 27, 2011, Gonzalez, by counsel, filed a “Verified Petition to Remove Sex Offender Designation Pursuant to Ind. Code 11-8-8-22.” (App. at 34.) The trial court denied the petition on July 22.
DISCUSSION AND DECISION
Article 1, Section 24 of the Indiana Constitution prohibits laws, which
impose punishment for an act that was not punishable at the time it was committed or which
assign additional punishment to an act already punished.
Flanders v. State
,
On July 1, 2006, our legislature amended the Indiana statutes which regulated SORA to require certain sex offenders to register for life, rather than just ten years. One such category included:
A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter that the sex or violent offender committed:
(1) when the person was at least eighteen (18) years of age; and (2) against a victim who was less than twelve (12) years of age at the time of the crime;
is required to register for life.
Gonzalez argues this new lifetime registration requiremеnt violates the prohibition against ex post facto laws because his crime, when he committed it, required only ten years of registration as a sex offender. We agree.
In , our Indiana Supreme Court used a seven-factor test to dеtermine whether the statutory changes to the registry requirements violate prohibitions:
In assessing a statute’s effects we are guided by seven factors that are weighed
against each other: “[1] Whether the sanction involves an affirmative disability
*4
or restraint, [2] whether it has historically been regarded as a punishment, [3]
whether it comes into play only on a finding of scienter, [4] whether its
operation will promote the traditional aims of punishment-retribution and
deterrence, [5] whether the behavior to which it applies is already a crime, [6]
whether an alternative purpose to which it may rationally be connected is
assignable for it, and [7] whether it appears excessive in relation to the
alternative purpose assigned.”
Wallace
[v. State],
In 2000, when Jеnsen pled guilty to Class C felony vicarious sexual gratification,
Jensen appealed, arguing the lifetime registration requirement violated the prohibition
against
ex post facto
laws. The Court ultimately concluded the amendment to
The court found that there were significant obligations imposed by the registration act. Many of these were already in effеct at the time that Jensen committed his offense, but SVPs do have some additional burdens, including informing law enforcement if they will be away from their residence for more *5 than seventy-two hours and registering for life. Therefore, thе first factor leaned in favor of finding the act punitive. The court compared the act to the historical punishment of shaming, and therefore found that the second factor also leaned in favor of finding the act punitive. The court found that the act primarily applies to offenses that require a finding of scienter, so the court found that the third factor also leaned in favor of finding the act punitive. The court found that the act promoted the traditional aims of punishment, but this was also true of the versions in effect prior to 2006; therefore, the court concluded that the fourth factor leaned in favor of finding the act non-punitive. Likеwise, the act applies only to behavior that is already a crime, but that was true before 2006. Therefore, the court concluded that the fifth factor leaned in favor of finding the act non-punitive. The court fоund that the act clearly promoted a rational alternative purpose: public safety. Therefore, the court concluded that the sixth factor also leaned in favor of finding the act non- punitive. Id . As to the seventh factor, the court stated:
The “broad and sweeping” disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, “petition the court to consider whether the person should no longer be considered a sexually violent predator.”Ind.Code § 35–38–1– 7.5(g) (2006).
Thus, the court also concludеd that the seventh factor leaned in favor of finding the act non-punitive and noted that this factor is afforded “considerable weight” when applying the seven-factor test. Because four of the seven factоrs (including the weighty seventh factor) leaned in favor of finding the act non- punitive, the court concluded that it was not an law.
Flanders
,
In
Flanders
, a SVP by virtue of his crime and multiple sex offenses, challenged his
registration requirement on
ex post facto
grounds beсause he was unable to petition for
removal of the lifetime registration requirement, unlike other SVPs. We concluded the
analysis of first six factors of the intent-effects test was the same under the facts presented in
both and
Flanders
. However, the seventh factor, “whether [the statute’s effect]
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appears excessive in relation to the alternative purpose assigned,”
Jensen
,
Just as in Flanders , our analysis of the first six factors of the intent-effects test in the instant case is identical to that in . Thus, we need only consider the seventh factor.
The requirement that Gonzаlez register as a sex offender for life is based on his age at
the time of the crime and the age of his victim.
We therefore must reverse the denial of Gonzalez’s petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.
Reversed and remanded.
CRONE, J., and BROWN, J., concur.
Notes
[1]
[2]
[3]
[4] In
Flanders
, we were able to remedy the
ex post facto
violation by striking as unconstitutional the first
sentence of