Rex S. Lovett v. State of Indiana , 47 N.E.3d 657 ( 2015 )


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  •                                                                        Dec 11 2015, 8:43 am
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Amy D. Griner                                             Gregory F. Zoeller
    Mishawaka, Indiana                                        Attorney General of Indiana
    Kyle Hunter
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Rex S. Lovett,                                            December 11, 2015
    Appellant-Petitioner,                                     Court of Appeals Case No.
    20A04-1506-MI-591
    v.                                                Appeal from the Elkhart Superior
    Court
    State of Indiana,                                         The Honorable Teresa L. Cataldo,
    Appellee-Respondent                                       Judge
    Trial Court Cause No.
    20D03-1502-MI-41
    Bailey, Judge.
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015                   Page 1 of 11
    Case Summary
    [1]   Rex Lovett (“Lovett”) filed a petition for relief from sex offender registration
    requirements under Indiana’s Sex Offender Registration Act (“SORA”). The
    trial court denied his petition. Lovett appeals, arguing that the registration
    requirement is unconstitutional as applied to him because it violates the ex post
    facto clause of the Indiana Constitution. Because Lovett was, at the time of and
    as a result of his original offense, subject to sex offender reporting requirements
    in another state, we conclude that an ongoing requirement to register in Indiana
    is not an additional, ex post facto punishment under the Indiana Constitution.
    [2]   We affirm.
    Facts and Procedural History
    [3]   On August 28, 1991, Lovett was convicted of rape of a child and child
    molestation in the State of Washington. After serving his sentence, Lovett was
    released from incarceration on May 13, 2003. Under Washington law, Lovett
    is required to register as a sex offender indefinitely.
    [4]   Upon his release from incarceration in May 2003, Lovett moved to Indiana. In
    addition to being required to register as a sex offender, in 2007, Lovett was
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 2 of 11
    required to register as a serious violent predator and comply with more rigorous
    restrictions after the General Assembly passed amendments to SORA.1
    [5]   On February 11, 2015, Lovett filed a petition for relief from the sex offender
    registration requirements. Following a hearing, the trial court denied Lovett’s
    petition. Lovett now appeals.
    Discussion and Decision
    [6]   In this appeal, Lovett contends that the trial court erred when it denied his
    petition because the requirements of Indiana’s SORA are ex post facto
    punishments as applied to him.
    [7]   Article 1, section 24 of the Indiana Constitution provides that “[n]o ex post
    facto law…shall ever be passed.” Among other things,
    the ex post facto prohibition forbids the state to enact any law which
    imposes a punishment for an act which was not punishable at the time
    it was committed or imposes punishment additional to that which was
    already imposed. The underlying purpose of the ex post facto clause is
    to give effect to the fundamental principle that persons have a right to
    fair warning of the type of conduct that will give rise to criminal
    penalties.
    [8]   Burton v. State, 
    977 N.E.2d 1004
    , 1007 (Ind. Ct. App. 2012) (emphasis added)
    (internal citations omitted), trans. denied.
    1
    Ind. Code ch. 11-8-8.
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015       Page 3 of 11
    [9]    In a line of cases beginning with the Indiana Supreme Court’s decision in
    Wallace v. State, 
    905 N.E.2d 371
     (Ind. 2009), Indiana courts have addressed a
    variety of ex post facto challenges to the sex offender registration requirements
    under SORA. In Wallace, the Indiana Supreme Court was presented with an
    appeal by an individual who had been tried, convicted, and sentenced for sex
    offenses in the State of Indiana before Indiana’s SORA had been enacted into
    law. Id. at 373. In those circumstances, the Wallace Court held that registration
    requirements of SORA were unconstitutional ex post facto punishments as
    applied to Wallace, concluding that as to Wallace, SORA “impose[d] burdens
    that have the effect of adding punishment beyond that which could have been
    imposed when his crime was committed.” Id. at 384.
    [10]   In Lovett’s case, the applicable facts are as follows. The State of Washington
    enacted its own version of SORA, which had already taken effect before Lovett
    was convicted of his crimes. Thus, Lovett was required upon release from
    imprisonment to register himself with authorities in the State of Washington,
    and this requirement was imposed immediately upon Lovett’s conviction.
    Rather than remain in Washington after his release from imprisonment in 2003,
    Lovett traveled to and settled in Indiana. When Lovett arrived in Indiana, our
    state’s SORA had been enacted and was in effect.
    [11]   Nevertheless, Lovett argues that because his conviction date precedes the
    adoption of Indiana’s SORA, the imposition of a lifetime registration
    requirement in Indiana is an ex post facto punishment as to him. He argues that
    Wallace, as well as a line of cases from this Court, mandate this result because,
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 4 of 11
    he says, the date of an individual’s conviction has been deemed determinative
    for Indiana ex post facto analysis in Hough v. State, 
    978 N.E.2d 505
     (Ind. Ct. App.
    2012), trans. denied; Andrews v. State, 
    978 N.E.2d 494
     (Ind. Ct. App. 2012), trans.
    denied; Burton, supra. An examination of each of these cases shows that they are
    distinguishable from the case at bar, and that none of them impose the rule
    Lovett’s argument suggests: that a conviction date for a crime committed
    outside Indiana and prior to the enactment of Indiana’s SORA is by itself
    dispositive as to Indiana’s ex post facto analysis.
    [12]   Burton, in particular, is instructive. Burton had been convicted of a sex offense
    in Illinois in 1987 and was subsequently required by that state to register in
    1996. Burton, 977 N.E.2d at 1006. He failed to do so, and was convicted for
    registration violations in 2003 and 2007; these offenses imposed upon Burton
    an ongoing registration requirement. Id. at 1008. The Burton Court centered its
    analysis in part upon the date of Burton’s conviction for his initial sex offense in
    Illinois, which predated both Illinois’s and Indiana’s SORA enactments by
    several years. The Burton Court rejected the State’s argument that Burton’s
    ongoing registration requirement in Illinois as a result of his 2003 and 2007
    convictions prevented Indiana registration requirements from being an ex post
    facto punishment as to Burton. Id. at 1009.
    [13]   In reaching its decision, the Burton Court acknowledged that its holding as to
    the ex post facto nature of registration requirements might properly be limited to
    “those offenders who committed crimes in states which had no registration
    requirements at the time of the offenses.” Id. at 1010. As the Burton Court
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 5 of 11
    observed, “the date of the commission of the crime and the law in place at that
    time is relevant to the ex post facto analysis.” Id. at 1009. This accords with
    the statement of our supreme court in Wallace that an ex post facto law is
    prohibited “because it imposes burdens that have the effect of adding
    punishment beyond that which could have been imposed when [the] crime was
    committed.” 905 N.E.2d at 384.
    [14]   A review of the Indiana cases at issue here demonstrates conformance to the
    Burton Court’s interpretation of the requirements of Wallace. In Hough, Hough
    had been convicted of a sex offense in 1993 in Pennsylvania, which did not
    adopt an equivalent to SORA until 1996. 978 N.E.2d at 505. Thus, upon
    conviction, Hough was not required to register in Pennsylvania, and this Court
    accordingly concluded that a requirement to register as a sex offender in
    Indiana was an unconstitutional ex post facto punishment. Id. at 506-07.
    [15]   In Andrews, Andrews had been convicted of a sex offense in Massachusetts in
    1984, and the Massachusetts sex offender registry law did not operate in a
    manner identical to that of Indiana. 978 N.E.2d at 495. When he moved to
    Indiana in 1993, this state’s SORA had not yet been enacted; when he again
    moved to Indiana in 1997, SORA did not require registration of individuals
    who had been convicted of sex offenses outside of Indiana. Id. Based upon the
    date of Andrews’s conviction, the different registration regime in Massachusetts
    under which Andrews had never been required to register, and the lack of an
    independent federal requirement that Andrews register as a sex offender, this
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 6 of 11
    Court held that Indiana’s SORA requirements were an unconstitutional ex post
    facto punishment as to Andrews. Id. at 498, 502.
    [16]   In each of these cases, then, this Court has held as an ex post facto punishment a
    sex offender registration requirement where the individual’s conviction came
    before the enactment of Indiana’s SORA. In each case, the analysis has turned
    on more than simply the date of an individual’s conviction, because each of
    these cases was unlike Wallace, which considered only the effect of an Indiana
    conviction prior to the enactment of Indiana’s SORA. In the other cases, there
    have been two crucial points: the date of the individuals’ conviction, and the
    use of Indiana’s ex post facto doctrine to evaluate the consequences of a
    conviction with respect to another state’s SORA enactment. In Burton and
    Hough, the states in which those individuals were convicted did not have SORA
    enactments prior to the individuals’ underlying convictions. In Andrews,
    Massachusetts’s SORA enactment did not impose registration as a matter of
    law without a hearing, statutory procedures which did not exist in Indiana and
    under which Andrews was never required to register in Massachusetts.
    [17]   Here, unlike these cases, Lovett was convicted of a sex offense in another state
    and was required to register indefinitely in that state as of the time of his
    conviction. The date of his conviction relative to Indiana law is not, as the
    Burton Court observed, the sole determinant of whether a requirement to
    register as a sex offender in Indiana constitutes an ex post facto punishment. The
    question is, instead, whether such a requirement would impose additional
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 7 of 11
    punishment for Lovett’s offenses beyond those burdens already placed upon
    him at the time of his conviction.
    [18]   We conclude that the registration requirement does not do so, and thus
    Indiana’s SORA is not an ex post facto punishment as to Lovett.2 Lovett was
    subject to registration requirements in the State of Washington from the date of
    his conviction; it is not adding to his punishment to require continued
    registration in Indiana. And he should not be allowed to evade these
    requirements simply by relocating to Indiana, when the sole basis for that
    evasion would be a conviction date for a crime committed outside Indiana. We
    therefore affirm the judgment of the trial court.
    [19]   Affirmed.
    [20]   Mathias, J., concurs.
    [21]   Baker, J., dissents with separate opinion.
    2
    This Court has previously concluded in dicta that when an individual has been convicted of an offense in
    another state and the individual was required as of the time of that offense to register as a sex offender in that
    state, there is no ex post facto violation associated with Indiana’s later-enacted registration requirement. In
    Herron v. State, 
    918 N.E.2d 682
     (Ind. Ct. App. 2009), Herron had been convicted in 1984 as a sex offender in
    Arizona and, as of the time of his offense, was required to register for life. Id. at 684. After his release from
    prison, Herron registered as a sex offender in Arizona. He later moved to Indiana, and Indiana authorities
    requested that Herron register in 2008. Herron filed a petition seeking to avoid registration requirements
    under Indiana’s SORA, contending that this requirements was an ex post facto punishment. The trial court
    denied the petition, and this Court affirmed the trial court’s judgment, finding that, waiver notwithstanding,
    because Herron “was required by Arizona to register as a sex offender when he committed his offense,” he was
    not subject to an ex post facto punishment by the later-enacted Indiana registration requirements. Id. at 684
    (emphasis added).
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015                          Page 8 of 11
    IN THE
    COURT OF APPEALS OF INDIANA
    Rex S. Lovett,                                            Court of Appeals Case No.
    20A04-1506-MI-591
    Appellant-Petitioner,
    v.
    State of Indiana,
    Appellee-Respondent
    Baker, Judge, dissenting.
    [22]   I respectfully dissent. In Wallace v. State, 
    905 N.E.2d 371
     (Ind. 2009), our
    Supreme Court held that mandatory sex offender registration is punitive, and
    that application of SORA to an offender who had committed his offense prior
    to the enactment of SORA violated the ex post facto prohibition of the Indiana
    Constitution.
    [23]   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 when applied to an individual who had committed his offense prior to
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015           Page 9 of 11
    SORA’s enactment. State v. Hough, 
    978 N.E.2d 505
     (Ind. Ct. App. 2012)
    (holding that defendant, who had been convicted of rape in Pennsylvania prior
    to SORA enactment, could not be required to register as sex offender in
    Indiana), trans. denied; Andrews v. State, 
    978 N.E.2d 494
     (Ind. Ct. App. 2012)
    (holding that defendant, who had been convicted of sex offenses in
    Massachusetts prior to SORA enactment, could not be required to register as
    sex offender in Indiana), trans. denied; Burton v. State, 
    977 N.E.2d 1004
    , 1010
    (Ind. Ct. App. 2012) (holding that defendant, who had been convicted of sex
    offenses in Illinois prior to SORA enactment, could not be required to register
    as sex offender in Indiana), trans. denied.
    [24]   I acknowledge that in this case, SORA imposed no additional burdens on
    Lovett because he was already required to register in Washington. That was
    also the case in Hough and in Burton, however. Hough, 978 N.E.2d at 505-06
    (had defendant remained in Pennsylvania, he would have been required to
    register; the State did not require him to register only because he planned to
    relocate immediately to Indiana upon his release); Burton, 977 N.E.2d at 1006-
    07 (defendant was required to register in Illinois and had been convicted twice
    in that State of registration violations).
    [25]   I see no meaningful distinction between those cases and the instant case. In
    neither Wallace, nor Hough, nor Burton, nor Andrews, did the court explicitly
    include as part of its analysis the date of enactment of the SORA equivalent in
    the state of conviction. In my view, the majority engrafts this requirement onto
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 10 of 11
    the prior cases, creating a second prong of a test that does not otherwise exist.
    Consequently, I part ways with the majority’s analysis of the relevant cases.
    [26]   In this case, Lovett’s Washington convictions occurred in 1991. SORA, which
    requires sex offenders to register upon release from jail, was enacted three 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.
    [27]   The State urges us to focus on the year in which Lovett moved to Indiana—
    2003. According to the State, because Lovett 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.
    [28]   While I see the logic in the State’s position on this issue, as well as the
    majority’s decision, the case law could not be clearer. Our Supreme Court, plus
    three panels of this Court, have plainly held that the date of primary importance
    is the date of the original conviction. Notwithstanding the state of the law at
    the time Lovett moved to Indiana, he is a resident of this State and “is entitled
    to the protections afforded to him by the Indiana Constitution. Therefore, even
    though he would be required to register as a sex offender under [Washington’s]
    laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Lovett was
    convicted of a sex offense before Indiana enacted SORA. Therefore, I believe
    that requiring him to register as a sex offender would violate Indiana’s
    constitutional prohibition against ex post facto laws; I would affirm the trial
    court’s judgment.
    Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 11 of 11
    

Document Info

Docket Number: 20A04-1506-MI-591

Citation Numbers: 47 N.E.3d 657

Filed Date: 12/11/2015

Precedential Status: Precedential

Modified Date: 1/12/2023