Kevin Allyn AMMONS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 45S03-1604-CR-167.
Supreme Court of Indiana.
April 5, 2016.
50 N.E.3d 143
On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1411-CR-394
While the facts presented in this case may have made the decision on immunity a close call, in those circumstances, we err on the side of narrowly construing a finding of immunity. Because the designated evidence of official action does not demonstrate the prioritization or cost-benefit analysis that went into the development and approval of the Main Street Project, the City is not entitled to discretionary function immunity under the ITCA on summary judgment. Although it may be true that the City was within the planning phase of its reconstruction project when the incident occurred, we cannot reach that conclusion without drawing an inference against the non-movant. Thus, we affirm the trial court‘s denial of summary judgment. On remand, the City “bear[s] the burden [of] demonstrat[ing] the discretionary nature of the decision in order to prevail on a claim of immunity.” Peavler, 528 N.E.2d at 48.
Conclusion
Based upon our review of the designated evidence and our existing precedent, the City failed to meet its burden of demonstrating that the challenged act or omission was a policy decision made by consciously balancing risks and benefits. Thus, the City was not entitled to summary judgment on the question of discretionary function immunity under the ITCA. We affirm the trial court‘s denial of summary judgment and remand for further proceedings.
RUSH, C.J., DICKSON, RUCKER, and MASSA, JJ., concur.
Kristin A. Mulholland, Crown Point, IN, Attorney for Appellant.
PER CURIAM.
Kevin Ammons committed child molesting in Indiana in 1988 and was convicted in 1989, before passage of any part of Indiana‘s Sex Offender Registry Act (the “Act” or “SORA“). Ammons was released in 2006 and completed parole in 2007. Ammons registered as a sex offender as the law at the time required of him. In 2009, Ammons moved to Iowa, where he was also required to register as a sex offender. In 2013, Ammons moved back to Indiana and in 2014 the State notified him he was required to register as a sex offender. Ammons sought removal from the registry, and the trial court ultimately denied his motion. Ammons appealed, and a divided Court of Appeals affirmed. Ammons v. State, 36 N.E.3d 1079 (Ind.Ct.App.2015).
In the Court of Appeals, Ammons argued that because he committed his offense six years prior to the passage of SORA, application of the Act to him violates the Ex Post Facto Clause—Article 1, section 24—of the Indiana Constitution. Ammons relied on our opinion in Wallace v. State, 905 N.E.2d 371 (Ind.2009). In Wallace,
we found our ... Act violated Indiana‘s Ex Post Facto Clause because it imposed a punitive burden as applied to an offender who committed his crime—and even served his sentence—before any registration requirement existed.
Tyson v. State, 51 N.E.3d 88, 2016 WL 756366, at *3 (Ind. Feb. 25, 2016) (citing Wallace, 905 N.E.2d at 384) (emphasis in Tyson, footnotes omitted).
In response to Ammons’ argument, the State contended there is no ex post facto violation here because SORA is not being applied retroactively to Ammons, but rather, “the State is targeting Ammons’ conduct taken after [SORA]‘s enactment.” Appellee‘s Br. at 4. The State argued that because Ammons moved to Iowa in 2009 after our decision in Wallace was handed down, he could not benefit from that decision because he was living in Iowa. And it is undisputed that in Iowa, Ammons was subject to a registration requirement. According to the State, when Ammons moved back to Indiana in 2013, he had notice of and therefore “voluntarily assented to Indiana law in effect in 2013.” Id. at 6. In 2013, Indiana law required (as it does today) that offenders who are under a registration obligation in another state must register when they move to Indiana. See
Ammons responded that these statutes constitute an ex post facto violation because they were enacted after the date of his crime. The Court of Appeals agreed on that point. 36 N.E.3d at 1082. But after the Court of Appeals decided Ammons’ case, this Court rejected the same argument. In State v. Zerbe we held statutes requiring an Indiana resident to register were non-punitive in intent and effects when applied to an offender already required to register in another jurisdiction.
Because Ammons was already under an obligation to register, and
All Justices concur.