Jerome Michael BURTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
No. 45A03-1201-CR-6
Court of Appeals of Indiana
Nov. 8, 2012
Reversed.
DARDEN, S.J. concurs.
ROBB, C.J. concurs in part and dissents in part with separate opinion.
ROBB, Chief Judge, concurring in part, dissenting in part.
I concur in all but the final disposition of the well-considered opinion of the majority in this case. The majority reverses the Commission‘s regulatory approval of the Contract because the definition of “retail end use customer” in the Contract deviates from the statutory definition. I do not believe reversal of the Commission‘s approval of the Contract in its entirety is necessary.
The Commission has the authority to approve a final purchase contract so far as the contract comports with the statutory requirements of the SNG Act. See
As a general proposition, a contract made in violation of a statute is void and unenforceable. Jaehnen v. Booker, 806 N.E.2d 31, 36 (Ind.Ct.App.2004), trans. denied. However, if a contract contains an unauthorized provision that can be eliminated without frustrating the basic purpose of the contract, the remainder of the contract may be enforced. Harbour v. Arelco, Inc., 678 N.E.2d 381, 385 (Ind. 1997) (holding that if remainder of car rental contract had conformed with statutory requirements, the inclusion of a provision for recovery of attorney fees not authorized by statute would not have rendered entire contract invalid because the primary purpose of the contract would not be frustrated by eliminating that provision). Because the transportation customers are an easily identifiable group, I believe we could merely exclude that part of the Contract which includes transportation customers in the definition of retail end use customers without frustrating the primary purpose of the Contract. Accordingly, I would hold, with the exclusion of that part of the Contract definition of retail end use customers which applies to transportation customers, that the Contract was properly approved by the Commission.
Kristin A. Mulholland, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
SHARPNACK, Senior Judge.
STATEMENT OF THE CASE
In this interlocutory appeal, Jerome Michael Burton challenges the trial court‘s denial of his motion to dismiss the charge of failure to register as a sex offender.
We reverse and remand.
ISSUE
The issue is whether it is a violation of the ex post facto provision of the Indiana Constitution to require Burton to register under the Indiana Sex Offender Registration Act (“SORA“) as one who is required to register in another state, Illinois, when the statutes requiring him to register in Illinois and in Indiana were enacted after he had been convicted of the qualifying offense in Illinois.
FACTS AND PROCEDURAL HISTORY
In 1987, Burton was convicted in Illinois of aggravated criminal sexual assault and sentenced to six years. At that time in Illinois, Burton was under no requirement to register. In 1996, Illinois amended its SORA to require persons who had committed crimes such as Burton‘s to register for a period of ten years. Thereafter, he was convicted in Illinois in 2003 and in 2007 for sex offender registration violations. Burton then moved to Indiana and, in 2009, was convicted in Indiana of failure to register as a sex or violent offender and was sentenced to one year pursuant to our SORA. See
DISCUSSION AND DECISION
Burton contends that, as applied to him, our SORA constitutes retroactive punishment forbidden by the ex post facto prohibition contained in the Indiana Constitution because he committed his crime in Illinois before any registration was required by either Illinois or Indiana.
When the constitutionality of a statute is challenged, we begin with the presumption that the statute is constitutional. Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). The party challenging the statute labors under the heavy burden of proving otherwise. Id. All reasonable doubt must be resolved in favor of the statute‘s constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind.2000).
The Indiana Constitution provides that “[n]o ex post facto law shall ever be passed.”
In Wallace v. State, 905 N.E.2d 371 (Ind.2009), our Supreme Court held unanimously that mandatory sex offender registration is punitive and that application of Indiana‘s SORA to an offender who had committed his offense prior to the enactment of our SORA violated the ex post facto prohibition of the Indiana Constitution.
Jensen v. State, 905 N.E.2d 384 (Ind. 2009), was handed down the same day as Wallace. At the time Jensen pleaded guilty there was in place an Indiana SORA requirement that he register for a period of ten years. Six years later, our SORA was amended in several respects, including a provision that a person who committed one of the offenses to which Jensen had pleaded guilty was required to register for life. The legislation contained no provision preventing application of our SORA to crimes committed prior to its effective date. The trial court ruled that Jensen was required to register for life. Our Supreme Court was sharply divided on the merits but affirmed the trial court. Two justices found that the additional requirement to register for life did not impose any greater burden or have any greater adverse effect on Jensen and, thus, the requirement did not violate our state‘s ex post facto prohibition as applied to him. Id. at 394. One justice concurred in result on the basis that because the original period of ten years had not yet expired, the claim of unconstitutionality of the lifetime registration requirement was not ripe for adjudication. Id. at 396. The remaining two justices found that the controversy was ripe and the enhanced requirement to register for life was an additional punishment that violated our state‘s ex post facto
Here, the State seeks to enforce our SORA‘s requirement to register on Burton because he is required to register in Illinois. Burton relies on Wallace and argues that it would violate the ex post facto provision of our state constitution to compel him to register under Indiana‘s SORA when there was no statute in Illinois or Indiana requiring registration when he committed his offense.
In response, the State argues as follows:
- this case is more like Jensen than Wallace because Burton was already under a requirement to register in Illinois and the requirement to register in Indiana imposes no additional burden on him;
- it is Burton‘s 2007 conviction in Illinois for the sex offender registration violation rather than his original sex offense conviction that is the predicate for his requirement to register in Illinois, and that conviction came after both states had registration requirements applicable to Burton;
- the application of the Illinois registration statute to Burton is not an ex post facto violation under the Illinois Constitution and, under principles of Full Faith and Credit and comity, Indiana should accept Burton‘s requirement to register in Illinois as a predicate to apply our SORA to him and compel him to register; and
- public policy considerations dictate that we not make Indiana a “haven” for offenders similarly situated as Burton.
We address each of the State‘s arguments in turn. First, the State argues that this case is more like Jensen than Wallace because Burton was already under an obligation to register in Illinois when he came to Indiana and the requirement to register in Indiana thus imposes no additional burden on him. There is, however, a significant difference in this case from Jensen. In Jensen, there was in effect at the time of his offense a requirement to register. Thus, the initial requirement did not violate the ex post facto prohibition under our constitution. Here, the initial requirement to register was an ex post facto violation under our constitution. That difference brings this case under Wallace, not Jensen.1
We conclude that the analysis and holding in Wallace apply to this case. We are deciding whether the ex post facto provision of the Indiana Constitution prevents the application of Indiana‘s SORA to require Burton, a resident of Indiana, to register as a sex offender on the ground that he is required to register in Illinois as a consequence of having been convicted in Illinois of a sex offense prior to the enactment of both the statutes of Illinois and Indiana that required registration. Had
The State also contends that Burton‘s obligation to register as a sex offender under our SORA does not violate our state‘s ex post facto prohibition because it stems purely from his 2007 Illinois conviction of failure to register. Although Illinois had not enacted its sex offender registration act at the time of Burton‘s crime, by 1996 it had amended its act to require Burton to register for a period of ten years. See
In support of its argument that Burton‘s registration requirement in Indiana stems from his 2007 Illinois conviction of failure to register, the State cites
We cannot agree. Burton‘s current registration requirement in Illinois is an extension of the registration requirement imposed upon him in 1996 by virtue of his 1987 conviction. The State‘s argument gives no force to the fundamental fact that, but for his 1987 conviction, Burton would not be subject to any requirement to register. Of importance in determining whether our SORA violates our constitution‘s prohibition on ex post facto laws is the date of the commission of the crime in relation to the passage of our SORA. See Wallace, 905 N.E.2d at 384 (holding that SORA violates ex post facto clause of Indiana Constitution where defendant committed his offense before SORA was enacted). Thus, it is the date of the commission of the crime and the law in place at that time that is relevant to the ex post facto analysis. See, e.g., Pollard, 908 N.E.2d at 1148-49 (noting that ex post facto prohibition forbids enactment of any law which imposes punishment for act which was not punishable at time it was
The State also claims that it would be a violation of the Full Faith and Credit Clause of the U.S. Constitution if we are “permitted to second-guess Illinois‘s valid determination that [Burton] must register as a sex offender.” Appellee‘s Br. p. 15. The Full Faith and Credit Clause provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
Finally, the State argues that public policy should lead us to require registration by Burton, because if we do not, Indiana will become a “haven” for offenders like Burton. Any haven would be only for those who, under our constitution, could not be compelled to register in violation of our state‘s prohibition of ex post facto laws. The State does not, and we cannot, quantify the number of such potential relocators to Indiana. Whatever the number, it will lessen as time passes. Indiana‘s SORA was enacted in 1994, and other states have registration laws that were enacted earlier. We are dealing only with those offenders who committed crimes in states which had no registration requirements at the time of the offenses. The concern of the State does not outweigh the value of enforcing our constitution in the application of our registration statute.
CONCLUSION
For the reasons stated, we reverse the trial court and remand with instructions to grant Burton‘s motion to dismiss.
Reversed and remanded with instructions.
MAY, J., and BARNES, J., concur.