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Thursday, April 30, 2009

Ind. Decisions - Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act

In Richard P. Wallace v. State of Indiana, an 18-page, 5-0 opinion, Justice Rucker writes:

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”) require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *

Having previously granted transfer we now reverse the judgment of the trial court on Wallace's ex post facto claim. In all other respects we summarily affirm the opinion of the Court of Appeals. * * *

[The opinion gives a thorough history of sex offender laws.]

Wallace contends that as applied to him the Act violates the ex post facto prohibitions of both the Indiana and federal Constitutions because he committed his crime, was sentenced, and served his sentence before any registration or notification was required. * * *

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry 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. Thus, the non-punitive purpose of the Act, although of unquestioned importance, does not serve to render as non-punitive a statute that is so broad and sweeping. We conclude that the seventh Mendoza-Martinez factor favors treating the effects of the Act as punitive.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view - advancing a non-punitive interest – points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

In Todd Jensen v. State of Indiana, a 19-page, 3-2 opinion, Justice Rucker writes:
In an opinion handed down today we concluded the Indiana Sex Offender Registration Act ("Act"), as applied in that case, violated the prohibition against ex post facto laws contained in the Indiana Constitution. See Wallace v. State, No. 49S02-0803-CR-138, ___ N.E.2d___, (Ind. Apr. 30, 2009). As we explain below the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here. * * *

But the effects of the Act apply to Jensen much differently than they applied to appellant Wallace. The "broad and sweeping" disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, "petition the court to consider whether the person should no longer be considered a sexually violent predator." Ind. Code § 35-38-1-7.5(g) (2006). We conclude therefore that the seventh Mendoza-Martinez factor favors treating the effects of the Act as non- punitive when applied to Jensen.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only three lean in favor of treating the effects of the Act as punitive when applied to Jensen. The remaining factors point in the other direction. Importantly, the last Mendoza-Martinez factor, which we afford "considerable weight in deciding whether the [Act is] punitive-in-fact," Wallace, ___ N.E.2d ___, slip op. at 17 (citation omitted), leans in favor of treating the Act as non-punitive when applied to Jensen. We conclude therefore that Jensen has not carried his burden of demonstrating that as applied to him the Act violates the Indiana constitutional prohibition against ex post facto laws. On this issue we affirm the trial court‘s ruling. We now address Jensen‘s remaining claims, which the Court of Appeals did not reach.

Jensen contends that "[r]equiring Mr. Jensen to register as a sex offender for life violates his right to life, liberty, and the pursuit of happiness under the State and Federal Constitutions." We make the following observations. First, although Jensen cites the Fourteenth Amendment to the United States Constitution and Article 1 section 1 of the Indiana Constitution he advances no argument concerning the Federal Constitution. This claim is thus waived. Second, Jensen devotes slightly more than one page to his Indiana constitutional claim. In doing so he cites to a single case * * * This claim is also waived. Trueblood v. State, 715 N.E.2d 1242, 1255 (Ind. 1999) (finding claim waived when defendant failed to cite authority or make cogent argument in its favor). * * *

We affirm the judgment of the trial court.

Shepard, C.J., concurs.
Sullivan, J., concurs in result with separate opinion.
Boehm, J., dissents with separate opinion in which Dickson, J., concurs.

[Justice Sullivan's concurring opinion begins] Jensen contends that he has been subjected to punishment on an ex post facto basis as a consequence of amendments to the Indiana Sex Offender Registration Act in 2006 that had the effect of converting his 10-year registration requirement into a lifetime registration requirement. I do not believe Jensen‘s claim that these 2006 amendments imposed additional punishment on him is ripe for adjudication. For this reason, I concur only in the result of the Court‘s opinion.

[Justice Boehm's dissent begins] I respectfully dissent. I agree with the implicit holding of the majority that this case is ripe for resolution. However, I believe the enhanced registration requirements enacted in 2006 constitute an additional punishment that violates the Ex Post Facto Clause as applied to Jensen, whose crimes were committed in 1998.

Posted by Marcia Oddi on April 30, 2009 02:56 PM
Posted to Ind. Sup.Ct. Decisions