In the Matter of Mark J. HUGHES, Respondent.
No. 98S00-1208-DI-477.
Supreme Court of Indiana.
Jan. 8, 2013.
312
The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the State of Arizona and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On August 21, 2012, this Court issued an “Order to Show Cause,” to which Respondent has not responded.
Respondent was admitted to practice law in Indiana and in Arizona. On May 10, 2012, the presiding disciplinary judge of the Supreme Court of Arizona entered a “Judgment of Disbarment,” accepting Respondent‘s consent to disbarment in which he admitted to violating that jurisdiction‘s rules of professional conduct.
The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.
Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.
If Respondent is reinstated to practice in Arizona, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect. In particular, reinstatement in Indiana is contingent on the cure of Respondent‘s current suspensions for noncompliance with this state‘s continuing legal education requirements and for nonpayment of registration fees.
The Clerk of this Court is directed to forward notice of this Order to Respondent, to the Indiana Supreme Court Disciplinary Commission, to the Supreme Court of Arizona, to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court‘s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court‘s decisions.
All Justices concur.
Andre GONZALEZ, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
No. 45S03-1206-CR-307.
Supreme Court of Indiana.
Jan. 10, 2013.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant‘s offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution‘s prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement.
In 1997, the defendant, Andre Gonzalez, pled guilty to Child Solicitation, a class D felony.1
In his appeal the defendant contends that, as applied to him, the 2006 amendments to the Act, which belatedly extend his registration requirement from ten years to life, violate the prohibition against
The Indiana Constitution states “No ex post facto law . . . shall ever be passed.”
In evaluating an ex post facto claim under the Indiana Constitution we apply what is commonly known as the “intent-effects” test. Wallace v. State, 905 N.E.2d 371, 378 (Ind.2009).3 Under the first prong of this test, we determine what type of scheme the legislature intended the statute to establish. Id. (citing Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146-47, 155 L.Ed.2d 164, 176 (2003)). If the legislature‘s intention was to impose punishment, the inquiry ends and an ex post facto violation is found. If, however, the legislature‘s intention was regulatory or civil in nature, then the court must move to the second prong of the inquiry to determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty. See id.
First, “it is difficult to determine legislative intent since there is no available legislative history and the Act does not contain a purpose statement.” Wallace, 905 N.E.2d at 383 (quoting Spencer v. O‘Connor, 707 N.E.2d 1039, 1043 (Ind.Ct.App.1999)). However, we are aided by the principle that every statute stands before us clothed with the presumption of constitutionality until that presumption is clearly overcome by a contrary showing. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992). The defendant has put forth no evidence of punitive intent on the part of the legislature with respect to the 2006 amendments to the Act. Therefore, as this Court has consistently done, we assume without deciding that, in passing the Act,
Second, we consider whether the effects of the Act, as applied to the defendant, are so punitive in nature as to constitute a criminal penalty. Wallace, 905 N.E.2d at 378. In evaluating a statute‘s effects we are guided by the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, (1963).
[1] Whether the sanction involves an affirmative disability 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, 905 N.E.2d at 379 (alterations in original) (quoting Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661). No one factor is determinative. We address each factor in turn, noting that “our task is not simply to count the factors on each side, but to weigh them.” Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992)) (internal quotation marks omitted).
1. Affirmative Disability or Restraint
The first factor is “[w]hether the sanction involves an affirmative disability or restraint.” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. We have found that the Act imposes significant affirmative obligations and a severe stigma on those to whom it applies. Lemmon v. Harris, 949 N.E.2d 803, 811 (Ind.2011) [hereinafter Harris]; Jensen v. State, 905 N.E.2d 384, 391 (Ind.2009); Wallace, 905 N.E.2d at 379. The duties on the defendant are significant: he must provide a wide array of personal information which is made public,
The State contends that, because the defendant‘s offense, Child Solicitation, has always been a qualifying sex offense, and because he was already required to register as a sex offender at the time of his discharge from probation, see
2. Sanctions That Have Historically Been Considered Punishment
The next factor, “whether [the sanction] has historically been regarded as a punishment,” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, which involves the dissemination and widespread availability of offenders’ per-
3. Finding of Scienter
In applying the third factor, “whether [the statute] comes into play only on a finding of scienter,” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, our focus is whether the sanction is linked to a showing of mens rea. If so, it is more likely to be considered punishment. Here, the defendant‘s criminal conviction for Child Solicitation is a prerequisite for registration, and this offense requires a showing of mens rea,4 as do the vast majority of offenses to which the Act applies. Wallace, 905 N.E.2d at 381. Therefore, this factor also weighs in favor of treating the effects as punitive.
4. Traditional Aims of Punishment
The fourth factor considers “whether [the statute‘s] operation will promote the traditional aims of punishment—retribution and deterrence.”5 Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. The more the Act promotes these traditional aims of punishment, the more likely it is to be punitive. Harris, 949 N.E.2d at 812 (citing Jensen, 905 N.E.2d at 393). Although lifetime registration required by the Act has a likely deterrent effect and promotes community condemnation of offenders, it also serves a valid regulatory function by providing the public with information related to community safety. As to the relative punitive or regulatory values served by this factor, we are guided by prior decisions of this Court that have not found deterrent and retributive effects as to a defendant claiming that the increased registration period violates the Ex Post Facto Clause, and that have interpreted this factor as non-punitive as to such a defendant. Compare Harris, 949 N.E.2d at 812 (offense required registration both before and after 2007 amendments to Act; factor favored non-punitive treatment), with Wallace, 905 N.E.2d at 381-82 (offense did not require registration at time committed; factor favored punitive treatment). This factor weighs in favor of treating the effects of the Act as non-punitive.
5. Applicability Only to Criminal Behavior
The fifth factor for consideration is “whether the behavior to which [the statute] applies is already a crime.” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. Although the registration requirement is triggered exclusively by criminal behavior, the defendant‘s offense, Child Solicitation, was already a registration-triggering offense at the time of commission. Our prior cases, in analogous circumstances, have weighed this factor in favor of treating the enhanced registration period as non-punitive as applied.
6. Advancing Non-Punitive Interest
Under the sixth factor, we determine “whether an alternative purpose to which [the statute] may rationally be connected is assignable for it.” Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661. Because the Act advances the legitimate regulatory purpose of protecting the public from repeat sexual crime offenders, our cases have consistently treated this factor as non-punitive. Harris, 949 N.E.2d at 812; Pollard, 908 N.E.2d at 1152-53; Jensen, 905 N.E.2d at 393; Wallace, 905 N.E.2d at 383. Likewise, here, this factor weighs in favor of treating the effects of the Act as non-punitive.
7. Excessiveness in Relation to Articulated Purpose
The seventh and final factor to be considered is “whether [the statute] appears excessive in relation to the alternative purpose assigned.” Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661. Our previous cases have reached differing results based on the outcome of this final factor.
In Wallace, we determined the seventh factor to be punitive for a defendant convicted and released prior to the Act‘s 1994 passage. In so doing, we found it significant that “the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.” Wallace, 905 N.E.2d at 384. In Jensen, this Court found that the effects of the Act applied differently to Jensen than they had to Wallace. We first noted that the 2006 amendments had changed nothing with regard to Jensen‘s actual disclosure requirements; they had changed only the duration of the requirement.6 Jensen, 905 N.E.2d at 394. Second, Jensen, unlike Wallace, was able to petition the court after ten years for reconsideration of his status as a sexually violent predator (“SVP“). Id. (citing
Here, unlike defendants Jensen and Harris, the defendant is not an SVP. Under Indiana law, there are two avenues by which a sex offender may qualify as an SVP. First, a person can qualify as an SVP by reason of a “mental abnormality or personality disorder that makes the in-
The State contends that a distinction must be made between an SVP whose registration requirement is based on his or her mental state and someone in the defendant‘s position whose increased registration requirement is “based on facts admitted by him . . . that do not change with the passage of time, or with rehabilitation.” Appellee‘s Trans. Br. 6-7. As noted above, this seventh Mendoza-Martinez factor requires that we consider whether the retroactive application appears excessive in relation to the alternative purpose assigned. The alternative purpose is protection of the public from repeat sexual crime offenders. The degree to which a prior offender has been rehabilitated and does not present a risk to the public is thus integral to our evaluation of whether an extension of the ten-year registration requirement is reasonable in relation to such public protection. The availability of meaningful review of an offender‘s future dangerousness is therefore germane to the determination of whether a statute‘s effects are excessive. Under the procedures contained in
In the present case, the defendant, Gonzalez, as a non-SVP, may not predicate his request for relief on the grounds that he has been rehabilitated and presents no risk to the public. And the trial court has refused to grant a hearing despite his repeated attempts to seek the trial court‘s review of his claim of ex post facto punishment. Thus, as to this defendant, we find that the retroactive imposition of a lifetime registration requirement appears excessive in relation to the purpose of protecting the public from repeat sexual crime offenders. For these reasons, we find this seventh factor weighs slightly in favor of treating the enhanced registration period as punitive rather than non-punitive.
Conclusion
We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant‘s claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute‘s effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d at 378-79. The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana‘s criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed. As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the Indiana Constitution.
We reverse the denial of the defendant‘s petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.
DAVID, MASSA, RUSH, JJ., concur.
RUCKER, J. concurs in result.
Notes
A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under twelve (12) years of age to engage in any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person commits child solicitation.
Id. (emphasis added).