Lead Opinion
Case Summary
[1] Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as. a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him “fair warning that his conduct would result in a penalty requiring him to register as a sex offender.” Appellant’s App. at 5. The State opposed Zerbe’s petition, which the trial court granted.
[2] On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse.
Facts and Procedural History
[3] The relevant facts are undisputed. In 1991, Zerbe engaged in sexual activity with a fourteen-year-old victim in Michigan. In 1992, he was convicted of criminal sexual conduct in the second degree and was sentenced to a minimum term of eight years. He was released from prison in 1999. Under Michigan law, Zerbe was required to register as a sex offender for twenty-five years. Mich. Comp Laws § 28.725.
[4] In 1994, the Indiana legislature enacted SORA, which requires persons convicted of certain offenses to register as sex offenders. Ind.Code ch. 5-2-12 (1994) (now Ind.Code ch. 11-8-8). SORA has been amended many times since. Most relevant for our purposes, in 2006 SORA was amended to define sex offender as “a person who is required to register as a sex offender in any jurisdiction.” Ind.Code § 11 — 8—8—5(b)(1). And in 2007 SORA was amended to provide that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction, at minimum. Ind.Code § n-s-s-w®.
[5] In December 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan.
Discussion and Decision
[6] Zerbe’s petition alleged that SORA, as applied to him, violates Article 1, Section 24 of the Indiana Constitution, which provides that no ex post facto law “shall ever be passed.”
The ex post facto clause forbids laws imposing punishment for an act that was not otherwise punishable when it was committed or imposing additional punishment for an act then proscribed. A law is ex post facto if it substantially disadvantages a defendant because it increases his punishment or deprives him of some defense or lesser punishment that was available at the time of the crime. Underlying the ex post facto clause is the desire to give people fair warning of the conduct that will give rise to criminal penalties.
Seales v. State,
[7] Unlike a facial constitutional challenge, an as-applied challenge asks only that the reviewing court declare the challenged statute unconstitutional on the facts of the particular case. Dowdell v. City of Jeffersonville,
[8] We recently addressed a substantially similar ex post facto challenge by a Texas sex offender who moved to Indiana in Tyson v. State,
[9] On appeal, Tyson argued that SORA was unconstitutional as applied to him. He assei’ted that
at the time he committed his predicate offense in Texas, there was no requirement in Indiana that a thirteen-year-old register as a sex offender because the offender was required to do so in Texas and that, therefore, he did not have fair warning of the sex offender registry penalty at the time he committed his offense in Texas. He further argue[d] that, to impose a registration requirement upon him based on the 2006 amendment of SORA-that changed the definition of sex offender in Indiana violated the prohibition on ex post facto laws.
Id. at 1075-76.
[10] We disagreed, concluding that
Tyson had fair warning and notice that when he moved to Indiana and subjected himself to Indiana’s laws, that he was required to register as a sex offender. No new duty was imposed on Tyson as he was already required to register in Texas, and the legal requirement that such registration continue upon his relocation to Indiana already existed at the time of his move in 2009 as SORA had changed in 2006. Therefore, Tyson’s status as a sex offender was not triggered by moving to Indiana; it merely maintained the status as it was. His requirement to continue registration as it already existed was triggered when Tyson chose to subject himself to Indiana law by moving to Indiana. Because Tyson had fair warning of the registration requirement, SORA was not an ex post facto violation as applied to Tyson.
Id. at 1076-77. See also Sewell,
[11] We see no reason to reach a different conclusion in this case, and we find Zerbe’s cited authorities inapposite, at best. Zerbe relies primarily on Wallace v. State,
[12] Here, however, SORA imposed no additional burdens on Zerbe because he was already required to register in Michigan. The State points out that “Zerbe’s position is that he should be able to decrease his punishment by moving to Indiana.” Appellant’s Reply Br. at 4 (emphasis added). We presume that our legislature sought to avoid this absurd result (as well as an influx of convicted sex of
[13] Zerbe also cites Burton v. State,
[14] Another panel of this Court reversed, stating,
Had the qualifying offense and the enactment of the registration requirement occurred in Indiana, Wallace would dictate dismissal of the charges. We hold that Burton has the protection of our constitution as to the application of our SORA, without regard to the fact that he was convicted of the qualifying sex offense in Illinois. It is for us, not Illinois, to determine who is required to register under our SORA.
Id. at 1008-09. The panel further stated,
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.
Id. at 1009.
[15] The State suggests that Burton’s reliance on Wallace is misplaced, noting that the Wallace court “did not consider the issue of relocation to Indiana and the expectations of sex offenders who had registration requirements in other jurisdictions.” Appellant’s Br. at 12. The State also points out that “Burton did not commit his crime in Indiana, and he was not subject to Indiana’s laws or Indiana’s registration requirement until he moved to Indiana.” Id. at 11. Consequently, we agree with the State that Brnion “does not provide a complete analysis necessary for an as-applied constitutional challenge” based on the facts of this case. Id. at 12.
[17] Reversed.
Notes
. We note that prior amendments required persons with certain out-of-state convictions to register as sex offenders in Indiana, but we need not mention them here.
. SORA's registration requirements apply to persons who reside or work in Indiana as defined in Indiana Code Section 11-8-8-7. Zerbe does not challenge whether these definitions apply to him.
. Zerbe also cites Andrews v. State,
Dissenting Opinion
dissenting.
[18] I respectfully dissent. In Wallace v. State,
[19] On at least three occasions since Wallace, this Court has had occasion to consider the application of Wallace to individuals who were convicted of sex offenses in other states before SORA was enacted. In these cases, the defendant later moved to Indiana and argued that application of SORA as applied to him was unconstitutional. On each of these three occasions, this Court found that application of SORA was, in fact, unconstitutional under the ex post facto clause. State v. Hough,
[20] ' I acknowledge that in this case, as noted by the majority, “SORA imposed no additional burdens on Zerbe because he was already required to register in Michigan.” Op. p. 837. That was also the case in Hough and in Burton, however. Hough,
[21] In this case, Zerbe’s Michigan conviction occurred in 1992. SORA, which requires sex offenders to register upon release from jail, was enacted two years later, in 1994. In 2001, the legislature amended SORA to require those with out-of-state convictions to register in Indiana upon residence in this State.
[22] The State argues that we should focus on the date of the year in which Zerbe moved to Indiana — 2012—over a decade after the 2001 amendment. According to the State, because Zerbe knew when he moved to Indiana that he would be required to register as a sex offender under SORA, there is no violation of the ex post facto clause.