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 Ind. Code § 11-8-8-22. We reverse and remand.
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 offendеr, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). Ind. Code § 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).
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. Ind. Code § 11-8-8-19(c) (2006) (footnote added). Suddenly, Gonzalez, who was over eighteen years old at the time of his crime and who committed his crime on a victim under twelve years old, qualified for required lifetime registration.
Gonzalez argues this new lifetime registration requirement viоlates 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 determine whеther 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 Jensen pled guilty to Class C felony vicarious sеxual gratification, Ind. Code § 5-2-12-5 (1996) required him to register as a sex offender for ten years following his release from prison, parole, or probation, whichever came latest. When amended SORA statutes went into effect on July 1, 2006, vicarious sexual gratification had been added to the list of offenses that caused an offender to be classified, as a matter of law, as a sexually violent predator (SVP). Ind. Code § 35-38-1-7.5(b) (2006) (including vicarious sexual gratification as a crime making offender an SVP as a matter of law). In addition, the amendments to Ind. Code § 11-8-8-19(b) required Jensen, as a SVP, to register as a sexually violent predator for life.
Jensen appealed, arguing the lifetime registration requirement violated the prohibition against ex post facto laws. The Court ultimately concluded the amendment to Ind. Code § 11-8-8-19(b), as applied to Jensen, was not an law:
The court found that there were significant obligations imposed by the rеgistration act. Many of these were already in effect 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 sеventy-two hours and registering for life. Therefore, the 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 оf finding the act non-punitive. Likewise, 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-рunitive. The court found 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 conсluded 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 factors (inсluding 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 because hе 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]
*6
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.
Thе requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. Ind. Code § 11-8-8-19(c) (assigning lifetime to person over eighteen years old who committed offense on victim under twelve). Unlike , no additional statute allows Gonzalez to petition the court to reassess his *7 lifetime registration requirement. Additionally, unlike both Flanders and , whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind. Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind. Code § 11-8-8-19(c), which does not classify him as an SVP or provide a mechanism by which he could petitiоn the court for removal of that requirement. Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.
We therefore must reverse the denial of Gonzalez’s petition to remove the lifetime SORA registration requirement and remand for removal оf the lifetime registration requirement.
Reversed and remanded.
CRONE, J., and BROWN, J., concur.
Notes
[1] Ind. Code § 35-42-4-6.
[2] Ind. Code § 11-8-8-5(a) (2006) includes the crime to which Gonzalez pled guilty, Class D felony child solicitation.
[3] Ind. Code § 35-38-1-7.5(g) states: This subsection does not apply to a person who has two (2) or more unrelated сonvictions for an offense described in IC 11-8-8-4.5 for which the person is required to register under IC 11- 8-8. A person who is a sexually violent predator may petition the court to consider whether the person should no longer be cоnsidered a sexually violent predator. The person may file a petition under this subsection not earlier than ten (10) years after: (1) the sentencing court or juvenile court makes its determination under subsection (e); or (2) the рerson is released from incarceration or secure detention. A person may file a petition under this subsection not more than one (1) time per year. A court may dismiss a petition filed under this subsection or conduct a hearing to determine if the person should no longer be considered a sexually violent predator. If the court conducts a hearing, the court shall appoint two (2) psychologists or psychiatrists who have expertise in criminal behavioral disorders to evaluate the person and testify at the hearing. After conducting the hearing and considering the testimony of the two (2) psychologists or psychiatrists, the court shall determine whether the person should no longer be considered a sexually violent predator under subsection (a). If a court finds that the person should no longer be considered a sexually violent predator, the court shall send noticе to the department of correction that the person is no longer considered a sexually violent predator.
[4] In
Flanders
, we were able to remedy the
ex post facto
violation by striking as unconstitutional the first
sentence of Ind. Code § 35-38-1-7.5(g).
Flanders
,