FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER KATHLEEN M. SWEENEY
Attorney General of Indiana Indianapolis, Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 03 2012, 9:12 am
CLERK
of the supreme court,
IN THE court of appeals and
tax court
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant, )
)
vs. ) No. 64A05-1203-MI-113
)
TERRY J. HOUGH, )
)
Appellee. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Judge
Cause No. 64D01-1008-MI-87812
December 3, 2012
OPINION – FOR PUBLICATION
MATHIAS, Judge
Terry Hough (“Hough”) filed a petition in Porter Superior Court requesting that
his name be removed from Indiana’s sex offender registry. Specifically, Hough, who was
convicted of rape in Pennsylvania in 1993, argued that his name should be removed from
the registry pursuant to our supreme court’s decision in Wallace v. State, 905 N.E.2d 371
(Ind. 2009). The trial court granted Hough’s petition and the State appeals. Specifically,
the State argues that Hough should not be removed from the sex offender registry
because he would still be required to register under Pennsylvania’s registry law, and he
has an independent duty to register as a sex offender under the federal Sex Offender
Registration and Notification Act.
We affirm.
Facts and Procedural History
In 1993, Hough was convicted of rape in Montgomery County, Pennsylvania. He
was ordered to serve two to five years incarceration. Hough was released to parole in
1997, and he completed his parole in 1998. Shortly after completing his parole, Hough
moved to Indiana.
Pennsylvania enacted its first sex offender registry law, known as Megan’s law, in
1996, while Hough was incarcerated in that jurisdiction. But Pennsylvania officials did
not require Hough to register as a sex offender upon release from incarceration and/or
parole because he notified Pennsylvania officials of his move to Indiana. Hough was told
that he would be subject to Indiana’s registration requirement, and he did register in
Indiana. Appellant’s App. p. 32. Hough also registered in Illinois because he was
employed in that state. However, in 2007, Hough received a notice from the State of
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Illinois that he was no longer required to register as a sex offender. Appellant’s App. p.
34.
On August 19, 2010, Hough filed a petition to remove himself from the Indiana
sex offender registry. Hough claimed that he should be removed because his conviction
occurred before Indiana and Pennsylvania enacted their sex offender registry laws, and
argued that, pursuant to Wallace v. State, 905 N.E.2d 371 (Ind. 2009), his petition should
be granted. In response, the State argued that under Pennsylvania’s current sex offender
registry law, Hough would be required to register for life, and therefore, Wallace is
inapplicable to Hough’s situation. The State also claimed that Hough has an independent
duty to register under the federal Sex Offender Registration and Notification Act.
After holding a hearing on Hough’s petition, the trial court issued an order
granting Hough’s petition to remove his name from the Indiana sex offender registry.
The State filed a motion to correct error, which the trial court denied on February 10,
2012. The State now appeals.
I. Indiana’s Sex Offender Act and Wallace v. State
Indiana’s Sex Offender Registration Act (“INSORA”) currently codified at
Indiana Code chapter 11-8-8 was first enacted in 1994.1 INSORA required persons
convicted of certain sex crimes to register as sex offenders. But sex offenders convicted
in another jurisdiction prior to the Act’s June 30, 1994 effective date were not required to
register. Moreover, the duty to register was prospective only and terminated when the
1
The Act was formerly codified in Indiana Code chapter 5-2-12.
3
offender was no longer on probation or discharged from parole. See Wallace, 905 N.E.2d
at 375.
But in 2001, INSORA was amended to require all offenders convicted of certain
sex offenses to register as sex offenders regardless of the date of their conviction. This
change in the law was challenged under the Ex Post Facto Clause contained in the
Indiana Constitution in Wallace. In that case, Wallace was charged with two counts of
child molesting in 1988, and he pleaded guilty to one count in 1989. Wallace completed
his sentence and probation in 1992, two years before the General Assembly first passed
the Act requiring persons convicted of child molesting to register as sex offenders.
In 2003, Wallace was notified that he was required to register as a sex offender.
Wallace insisted that he was not required to register because his 1989 plea agreement did
not require him to do so. Thereafter, Wallace was charged with Class D felony failing to
register as a sex offender, and was found guilty as charged.
On appeal of his conviction, Wallace claimed that INSORA violated the ex post
facto prohibitions of Article 1, Section 24 of the Indiana Constitution and Article 1,
Section 10 of the United States Constitution because his crime was committed and his
sentence was served before the Act was enacted in 1994. Our supreme court initially
observed:
The United States Constitution provides that “[n]o State shall . . . pass
any . . . ex post facto Law.” The Indiana Constitution provides that “[n]o ex
post facto law . . . shall ever be passed.” Among other things “[t]he ex post
facto prohibition forbids the Congress and the States to enact any law
‘which imposes a punishment for an act which was not punishable at the
time it was committed; or imposes additional punishment to that then
prescribed.’” The underlying purpose of the Ex Post Facto Clause is to
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give effect to the fundamental principle that persons have a right to fair
warning of that conduct which will give rise to criminal penalties.
Id. at 377 (internal citations omitted). The court then addressed Wallace’s claims only
under the Indiana Constitutional provision 2 and applied the “intent-effects” test to
determine whether INSORA imposed punishment. After assuming without deciding that
the General Assembly intended INSORA to be non-punitive, the court considered
“whether the statutory scheme is so punitive in effect as to negate that intention thereby
transforming what had been intended as a civil regulatory scheme into a criminal penalty.”
Id. at 378.
To examine INSORA’s effects, our supreme court applied seven factors
promulgated by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69 (1963). Those factors are
[1] [w]hether the sanction involves an affirmative disability or restraint, [2]
whether it has historically been regarded as a punishment, [3] whether it
comes into play only on a finding of scienter, [4] whether its operation will
promote the traditional aims of punishment-retribution and deterrence, [5]
whether the behavior to which it applies is already a crime, [6] whether an
alternative purpose to which it may rationally be connected is assignable
for it, and [7] whether it appears excessive in relation to the alternative
purpose assigned.
Id. at 379 (citing Mendoza–Martinez, 372 U.S. at 168–69 (footnotes omitted)).
2
The court observed that Indiana’s Act was similar to Alaska’s Act, which the United States Supreme
Court concluded does not violate the Ex Post Facto Clause of the United States Constitution. Id. at 378
(citing Smith v. Doe, 583 U.S. 84 (2003)). However, the offender in Doe later challenged Alaska’s Act
under its State Constitution. The Alaska Supreme Court held that the Act’s “registration, disclosure, and
dissemination provisions violate the protection against ex post facto laws afforded by the Alaska
Constitution as it applies to defendants who committed their crimes before the legislature enacted
ASORA[.]” Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).
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The court made the following observations with regard to each of the seven
factors: 1) “the Act’s registration and notification provisions impose substantial
disabilities on registrants” because “the Act imposes significant affirmative obligations
and a severe stigma on every person to whom it applies[;]” 2) the Act’s “dissemination
provision at least resembles the [historical] punishment of shaming” and are “comparable
to supervised probation or parole[;]” 3) the Act “overwhelmingly applies to offenses that
require a finding of scienter for there to be a conviction[;]” 4) the Act’s deterrent effect is
substantial and promotes community condemnation of the offender, which are both
included in the traditional aims of punishment; 5) the Act applies “only to behavior that is
already, and exclusively, criminal[;]” 6) the “Act advances a legitimate purpose of public
safety” to “protect the public from repeat offenders[;]” and 7) although the Act serves as
a legitimate means to protect the public from sex offenders, the registration and
disclosure requirements are not “tied to a finding that the safety of the public is
threatened” because “information on all sex offenders [is] available to the general public
without restriction and without regard to whether the individual poses any particular
future risk.” Id. 380-84.
After weighing the seven factors, and concluding that only the sixth factor
weighed in favor of treating INSORA’s effects as regulatory and non-punitive, the court
concluded 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.” Id. at 384. See also Hevner v. State, 919 N.E.2d 109, 112-13 (Ind. 2010)
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(concluding that as applied to Hevner, the Act violates the prohibition on ex post facto
laws contained in the Indiana Constitution because on the date Hevner committed
possession of child pornography, a first time offender was not classified as a sex offender
under the Act); Cf. Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009) (concluding that the
effects of the Act are non-punitive when applied to Jensen because the “broad and
sweeping” disclosure requirements were in place and applied to Jensen at the time of his
guilty plea in 2000; therefore requiring him to register for life under the 2006 amendment
to the Act does not violate Indiana’s constitutional prohibition against ex post facto
laws); Herron v. State, 918 N.E.2d 682, 684 (Ind. Ct. App. 2009) (citing Jensen and
concluding that the Act is not an ex post facto law as applied to Herron because he was
required by Arizona to register as a sex offender when he committed his offense). In this
case, Hough argues that we need look no further than Wallace to determine that, as
applied to Hough, the Act violates Indiana’s prohibition against ex post facto laws.
The State does not dispute that if Hough’s offense had been committed in Indiana,
he would not be required to register for the reasons expressed in Wallace. However, the
State asserts that Hough is required to register for life under Pennsylvania’s sex offender
registry law, and therefore he must register in Indiana as required by Indiana Code
sections 11-8-8-4.5 and 5. Sections 11-8-8-4.5 and 5 define the term “sex offender” and
“sex or violent offender” respectively and in part as “a person who is required to register
as a sex offender in any jurisdiction[.]” And Indiana Code section 11-8-8-19(f) requires
persons who must “register as a sex or violent offender in any jurisdiction” to “register
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for the period required by the other jurisdiction or the period described in” section 11-8-
8-19, whichever is longer.
The State claims that Hough would be required to register as a sex offender for life
in Pennsylvania if he resided in that state. See 42 Pa.C.S.A. § 9795.1(b). While Hough
was serving his sentence for rape, Pennsylvania enacted its first sex offender registration
law, known as Megan’s Law, and the registration portion of the statute took effect on
April 21, 1996. When Hough was released from prison in 1997, he would have been
classified as a sexually violent predator under Megan’s Law,3 which might have required
that he register as a sex offender for life. See Commonwealth v. Williams, 733 A.2d 593,
595 (Pa. 1999). But the Williams court held that the sexually violent predator provisions
of the Act violated the procedural due process guarantees of the Fourteenth Amendment,
and struck all of the relevant provisions of Megan’s Law I pertaining to sexually violent
predators. Id. at 607-08.
Thereafter, on May 10, 2000, Megan’s Law I was amended, and the amended
version, Megan’s Law II, went into effect on July 9, 2000. Under Megan’s Law II, which
is the law currently in effect in Pennsylvania, an offender convicted of rape is required to
register for life. See 42 Pa.C.S.A. § 9795.1(b). Pennsylvania’s courts have repeatedly
held that the Megan’s Law’s registration requirements are not punitive and do not
implicate the ex post facto clauses of the federal and state constitutions. See e.g.
3
Had Hough remained in Pennsylvania, he would have been presumed to be a sexually violent predator,
but he would have been assessed by the State Board to Assess Sexually Violent Predators. The Board
was required to submit a written report to the trial court, and the court would then make an ultimate
determination of the offender’s status. See Commonwealth v. Williams, 733 A.2d 593, 597 (Pa. 1999).
8
Commonwealth v. Williams, 832 A.2d 962, 984 (Pa. 2003). We agree with the State that
if he resided in Pennsylvania, Hough would be required to register as a sex offender for
life. Commonwealth v. Wilson, 910 A.2d 10, 15-16 (Pa. 2006); Commonwealth v.
Gaffney, 733 A.2d 616, 622 (Pa. 1999).
Our court recently considered circumstances similar to those presented in this case
in Burton v. State, No. 45A03-1201-CR-6 (Nov. 8, 2012 Ind. Ct. App. 2012). The sex
offender in Burton was convicted in Illinois of aggravated criminal sexual assault in 1987.
After he served his six-year sentence, Illinois enacted its sex offender registration law
under which Burton was required to register as a sex offender for ten years. He was later
convicted of sex offender registration violations in 2003 and 2007. Because the ten-year
registration period started over after his 2007 violation, Illinois law would require Burton
to register in Illinois if he resided there. After moving to Indiana in 2009, he was
convicted of failing to register as a sex or violent offender in our state and was sentenced
to one year incarceration. When he was released from prison, Burton registered as a sex
offender until October 2009, but failed to register thereafter. In April 2011, Burton was
charged with failing to register pursuant to Indiana Code section 11-8-8-17. Burton
unsuccessfully moved to dismiss the charges on the ground that the requirement to
register violated the ex post facto provision of the Indiana Constitution.
Responding to Burton’s appeal of the denial of his motion to dismiss, the State
argued that Burton was required to register in Illinois when he moved to Indiana and
therefore the requirement to register in Indiana imposed no additional burden on him.
Observing that if Burton’s sex offense had occurred in Indiana, Wallace would dictate
9
dismissal of the charges, we concluded that as a resident of Indiana, “Burton has the
protection of our constitution as to the application of our [INSORA], 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” Act.4 Id. at 7.
We also rejected the State’s claim that Burton should be required to register in
Indiana under the Full Faith and Credit Clause of the United States Constitution. Our
court concluded that the clause was not implicated in Burton’s case because the
“requirement by Illinois under its law that Burton register as a sex offender in Illinois is
no more than that; it is not a requirement to register anywhere else. . . . Our decision has
no effect on the enforcement of the Illinois requirement.” Id. at 9.
We reach the same conclusion in this case. As a resident of Indiana since 1998,
Hough 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
Pennsylvania’s laws, Indiana’s law controls. Because he was convicted of a sex offense
before Indiana enacted INSORA, requiring Hough to register as a sex offender would
violate Indiana’s constitutional prohibition against ex post facto laws. See Wallace, 905
N.E.2d at 384.
We are mindful of the State’s concern that by failing to require registration,
Indiana will become a haven for sex offenders. However, we can reasonably conclude
4
We also rejected the State’s argument that because Burton’s continued obligation to register in Illinois
stemmed from his 2007 conviction for failure to register, his obligation to register in Indiana does not
violate our state’s ex post facto clause. Our court concluded that the date of Burton’s 1987 conviction
and it is the law in place on the date of the offense that is relevant to the ex post facto analysis. Slip. op.
at 8.
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that the number of sex offenders who might not be required to register pursuant to our
supreme court’s decision in Wallace is relatively small. As our court noted in Burton,
“[a]ny 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.” Slip.
op. at 9.
Finally, the State argues that Hough has a separate registration requirement under
the federal Sex Offender Registration and Notification Act (“USSORNA”). We recently
considered this argument in Andrews v. State, No. 29A02-1112-MI-1166 (Nov. 21, 2012
Ind. Ct. App. 2012). Like the circumstances presented in this case, Andrews was
convicted of a sex offense in another state before Indiana enacted INSORA. The State
conceded that Andrews was not required to register as a sex offender in Massachusetts,
the state where he was convicted of a sex offense. Concluding that Andrews’s duty to
register as a sex offender under USSORNA and any resulting federal criminal
prosecution if he fails to register was not dispositive of our resolution of whether he was
required to register under INSORA, we observed:
Indiana is the only state that has ever required Andrews to register as a sex
offender, and he has resided in Indiana since 1997. But while Andrews
may have a federal duty to register under USSORNA if he engages in
interstate travel, and could be subject to prosecution in federal district court
under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.
Andrews has filed his petition in Indiana state court seeking removal of his
name from Indiana’s sex offender registry. After acknowledging that our
state sex offender registry law does not run afoul of the Ex Post Facto
Clause of the United States Constitution, our supreme court concluded in
Wallace that Hoosiers are entitled to greater protection under the
prohibition on ex post facto laws contained in the Indiana Constitution.
Greater protection of Hoosiers’s rights under the Indiana Constitution is not
11
an uncommon principle in our state’s jurisprudence. See Wallace, 905
N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.
2002)) (stating “[t]he Indiana Constitution has unique vitality, even where
its words parallel federal language”).
Slip op. at 15-16.
Likewise, in the case before us, Indiana is the only state that currently requires
Hough to register as a sex offender, and he has resided in our state since 1998. Pursuant
to our supreme court’s decision in Wallace, to continue to require that Hough register as a
sex offender for a conviction pre-dating the enactment of INSORA would violate
Indiana’s constitutional prohibition against ex post facto laws. See Ind. Const. Art. 1, §
24; 905 N.E.2d at 384. For all of these reasons, we affirm the trial court’s order granting
Hough’s petition to remove his name from the Indiana sex offender registry.
Affirmed.
VAIDIK, J., and BARNES, J., concur.
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