FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Wieneke Law Offices, LLC Attorney General of Indiana
Plainfield, Indiana
FRANCES BARROW
Deputy Attorney General
FILED
Indianapolis, Indiana
Nov 21 2012, 9:19 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
THOMAS H. ANDREWS, )
)
Appellant, )
)
vs. ) No. 29A02-1112-MI-1166
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE HAMIL TON CIRCUIT COURT
The Honorable Paul A. Felix, Judge
Cause No. 29C01-1101-MI-49
November 21, 2012
OPINION- FOR PUBLICATION
MATHIAS, Judge
Thomas Andrews ("Andrews") filed a petition in Hamilton Circuit Court
requesting that his name be removed from Indiana's sex offender registry. Specifically,
Andrews, who was convicted of sex offenses in Massachusetts in 1984, 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). Because we conclude that requiring
Andrews to register as a sex offender violates Article 1, Section 24 of the Indiana
Constitution prohibiting ex post facto laws, and that Indiana state courts do not have the
authority to consider whether federal statutory penalties attach to Andrews 's conduct, we
reverse and remand with instructions to the trial court to grant Andrews ' s petition for
removal from the sex offender registry.
Facts and Procedural History
In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews
for the following offenses under two separate cause numbers: six counts of rape and
abuse of a child under cause number 84-1074 and two counts of indecent assault and
battery of a child under the age of fourteen years under cause number 84-107 5. Andrews
pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of
assault and battery of a child. The court imposed consecutive sentences for the
convictions under the separate cause numbers, and in the aggregate, Andrews was
ordered to serve a minimal term of executed prison time with several years of probation.
Ultimately, Andrews was discharged from his probation for all convictions on or about
December 14, 1989.
In 1993, Andrews, who had married, moved to Indiana to be closer to his wife 's
family. In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He
has resided in Indiana since 1997. For over twenty-five years, Andrews has owned and
2
operated a business that was eventually incorporated under Indiana law and does business
as Pro Image & Associates, LLC. Andrews works from his home address, but travels to
locations in and out of the state to meet with his company's clients.
In 2006, the State of Indiana notified Andrews that he was required to register as a
sexually violent predator, and that he was required to register for life. Andrews
registered as required by the State. But, on January 6, 2011, Andrews filed a petition
requesting removal of his name from the registry and arguing that pursuant to our
supreme court's 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not
required to register as a sex offender. The State opposed Andrews's petition and the
parties filed cross-motions for summary judgment.
The summary judgment hearing was held on November 17, 2011. At the hearing,
the State argued that Wallace did not apply to Andrews's circumstances, but also that
Andrews was required to register as a sex offender under the federal Sex Offender
Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to
as "USSORNA"). On November 30, 2011, the trial court granted the State's motion for
summary judgment and denied Andrews's motion. Andrews now appeals. 1
1
We heard oral argument in this case on September 5, 2012, at the Robert H. McKinney School of Law
in Indianapolis, Indiana. We commend counsel for their superb oral advocacy, and we thank the students,
faculty, and school personnel for their hospitality.
3
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. 2 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
offender was no longer on probation or discharged from parole. See Wallace, 905 N.E.2d
at 375. Therefore, when Andrews moved to Indiana, he was not required to register as a
sex offender under INSORA in effect at that time.
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 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.
2
The Act was formerly codified in Indiana Code chapter 5-2-12.
4
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
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 3 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."
ld. at 378.
3
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).
5
To examme 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.
ld. at 379 (citing Mendoza-Martinez, 372 U.S. at 168- 69 (footnotes omitted)).
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
6
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. at 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)
(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 fact 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,
Andrews argues that we need look no further than Wallace to determine that, as applied
to Andrews, the Act violates Indiana' s prohibition against ex post facto laws.
7
At the summary judgment hearing, the State conceded that if Andrews' s offense
had been committed in Indiana, like Wallace, Andrews would not be required to register
under INSORA. Tr. pp. 33-34. But in its brief, the State argued because Andrews
committed his offenses in Massachusetts he is not "entitled to the benefit of the ex post
facto doctrine under the Indiana Constitution." Appellee' s Br. at 19. The State also
asserted that Andrews is required to register under Massachusetts 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 for the period
required by the other jurisdiction or the period described in" section 11-8-8-19,
whichever is longer.
However, at the oral argument held in this appeal, the State conceded that
Andrews is not required to register as a sex offender in Massachusetts as a matter of law.
Specifically, Massachusetts' s sex offender registration system is distinct from Indiana' s
in that offenders who committed their crimes prior to the law' s enactment are entitled to a
hearing before the Sex Offender Registry Board to determine whether the offender poses
a risk of reoffending or is a danger to the community, and therefore, whether the sex
offender is required to register at all. See Doe v. Sex Offender Registry Bd., 882 N.E.2d
298, 308-09 (Mass. 2008).
8
In light of its concession that Andrews is not required to register under INSORA,
the State is left only with its argument that Andrews has an independent duty to register
under federal law. In 1994, Congress began to require States to maintain federally
compliant systems for sex-offender registration and community notification. Failure to
do so resulted in the loss of certain law enforcement funds.
"In an effort to make these state schemes more comprehensive, uniform, and
effective, Congress in 2006 enacted [US SO RNA] as part of the Adam Walsh Child
Protection and Safety Act" for the stated purpose of protecting the public from sex
offenders. Carr v. United States, 130 S.Ct. 2229 (2010); 42 U.S.C. § 16901. Rather than
establishing a federal agency to implement USSORNA, Congress, through its spending
power, Article I, Section 8, directed all states and the District of Columbia to create local
registries that comply with specific national standards. 42 U.S.C. §§ 16911(10),
16912(a). Included in its many provisions,
[US]SORNA instructs States to maintain sex-offender registries that
compile an array of information about sex offenders; to make this
information publicly available online; to share the information with other
jurisdictions and with the Attorn~y General for inclusion in a
comprehensive national sex-offender registry; and to "provide a criminal
penalty that includes a maximum term of imprisonment that is greater than
1 year for the failure of a sex offender to comply with the requirements of
this subchapter." Sex offenders, in turn, are required to "register, and keep
the registration current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is a student,"
and to appear in person periodically to "allow the jurisdiction to take a
current photograph, and verify the information in each registry in which
that offender is required to be registered."
9
4
Id. at 2240-41 (citing 42 U.S.C. §§ 16913, 16914, 16918-21).
USSORNA imposes a federal obligation on all sex offenders to register in each
jurisdiction where the offender resides, works, and goes to school. Specifically, 42 U.S.C.
§ 16913, USSORNA' s registry requirements provide:
(a) In general
A sex offender [defined to include any offender who was convicted of a sex
offense] shall register, and keep the registration current, in each jurisdiction
where the offender resides, where the offender is an employee, and where
the offender is a student. ...
(b) Initial registration
The sex offender shall initially register [either] before completing a
sentence of imprisonment with respect to the offense giving rise to the
registration requirement; or [for those not sentenced to prison] not later
than 3 business days after being sentenced ....
(c) Keeping the registration current
A sex offender shall [update his registration within] 3 business days after
each change of name, residence, employment, or student status [by]
appear[ing] in person in at least 1 jurisdiction involved ... and inform[ing]
that jurisdiction of all [relevant] changes ....
(d) Initial registration of sex offenders unable to comply with subsection (b)
The Attorney General shall have the authority to specify the applicability of
the [registration] requirements ... to sex offenders convicted before the
enactment of this chapter or its implementation in a particular jurisdiction,
and to prescribe rules for the registration of any such sex offenders and for
other categories of sex offenders who are unable to comply with subsection
(b).
The Act also established a federal criminal offense covering any person who ( 1)
"is required to register under [USSORNA] ," (2) "travels in interstate or foreign
4
Like most states, Indiana has not full y implemented USSORNA.
10
commerce," and (3) "knowingly fails to register or update a registration." 18 U.S.C. §
2250. Congress' s intent in enacting 18 U.S.C. § 2250 was simply "to subject to federal
prosecution sex offenders who elude [US]SORNA' s registration requirements by
traveling in interstate commerce." Carr, 130 S.Ct. at 2241.
The United States Supreme Court has considered two challenges to USSORNA by
convicted sex offenders whose criminal acts occurred prior to USSORNA' s enactment,
but because the issues raised were able to be resolved under the plain language of the Act,
the Court declined to consider the petitioners's constitutional challenges to USSORNA.
In Carr, the United States Supreme Court examined whether 18 U.S.C. § 2250 "applies to
sex offenders whose interstate travel occurred prior to USSORNA' s effective date." 130
S.Ct. at 2233. The offender in Carr was convicted of a sex offense and completed his
interstate travel prior to USSORNA's effective date.
After examining the plain language of the statute, the Court held that
"preenactment travel falls outside the statute' s compass" and stated:
Had Congress intended to subject any unregistered state sex offender who
has ever traveled in interstate commerce to federal prosecution under §
2250, it easily could have adopted language to that effect. That it declined
to do so indicates that Congress instead chose to handle federal and state
sex offenders differently .... To the contrary, it is entirely reasonable for
Congress to have assigned the Federal Government a special role in
ensuring compliance with [US]SORNA's registration requirements by
federal sex offenders -persons who typically would have spent time under
federal criminal supervision. It is similarly reasonable for Congress to have
given the States primary responsibility for supervising and ensuring
compliance among state sex offenders and to have subjected such offenders
to federal criminal liability only when, after [US]SORNA' s enactment, they
use the channels of interstate commerce in evading a State' s reach.
ld. at 2238.
11
In Reynolds v. United States, 132 S.Ct. 975 (2012), the Court considered "the date
on which this federal registration requirement took effect with respect to sex offenders
convicted before [USSORNA] became law." Id. at 978. The sex offender in Reynolds
was convicted in 2001, but engaged in interstate travel after USSORNA's enactment in
2007 and failed to update his registration. The offender relied on the following provision
in 42 U.S.C. section 16913 to argue that USSORNA did not apply to him:
The Attorney General shall have the authority to specify the applicability of
the [registration] requirements ... to sex offenders convicted before the
enactment of this chapter or its implementation in a particular jurisdiction,
and to prescribe rules for the registration of any such sex offenders and for
other categories of sex offenders who are unable to comply with subsection
(b).
On February 28, 2007, "the Attorney General promulgated an Interim Rule specifying
that '[t]he requirements of [the Act] apply to all sex offenders, including sex offenders
convicted of the offense for which registration is required prior to the enactment of that
Act."' Reynolds, 132 S.Ct. at 978 (citing 72 Fed.Reg. 8897 (codified at 28 C.F.R. §
72.3)). Despite promulgation of this Rule, the Court held that USSORNA's registration
requirements do not apply to pre-USSORNA offenders until the Attorney General "so
specifies." 5 Id. at 984.
5
The Reynolds Court did not consider whether under the February 28, 2007 Interim Rule, the Attorney
General pad validly specified the application of the registration requirements to pre-Act offenders. Pre-
and post-Reynolds, there has been significant discussion among the federal circuits as to whether the
Interim Rule or subsequent guidelines issued by the Attorney General fulfill the requirements of 42 U.S.C.
section 16913(d). See~ United States v. Gould, 568 F.3d 459,469-70 (4th Cir. 2009) (noting that the
Fourth, Seventh, and Eleventh Circuits have concluded that the Interim Rule was a valid specification of
the applicability of the registration requirements to Pre-Act offenders); but see U.S. v. Stevenson, 676
F.3d 557, 560 (6th Cir. 2012) (holding that issuance of the rule did not comply with the notice and
comment procedures prescribed by the Administrative Procedures Act); United States v. Valverde, 628
F.3d 1159, 1162 (9th Cir. 2010).
12
While the Supreme Court has declined to consider ex post facto challenges to
USSORNA, the federal circuit courts of appeals have generally rejected ex post facto
claims. In particular, the State argues the Seventh Circuit's rejection of such a challenge
in United States v. Leach, 639 F.3d 769 (7th Cir. 2011), controls the outcome ofthis case.
The sex offender at issue in Leach was convicted of child molesting in Indiana in 1990.
Just before his release from prison in 1994, Indiana's sex offender registration statute
went into effect. When he moved from Indiana to South Carolina in 2008, he failed to
notify law enforcement officials in either state that he had changed his residence.
Although he eventually reported his move to an Indiana child support enforcement
official, he never notified South Carolina authorities of his residence within that
jurisdiction.
Leach was eventually arrested and returned to Indiana where he was indicted in
federal court for failing to register as a sex offender after traveling in interstate commerce
in violation of USSORNA. Leach moved to dismiss the indictment alleging he was
indicted in violation of the Ex Post Facto Clauses of the United States and Indiana
Constitutions. The district court denied the motion, and Leach entered a conditional
guilty plea while preserving his right to appeal. 6
6
The Seventh Circuit briefly addressed the issue of venue because Leach was arrested in South Carolina.
However, because Leach was required to update his registration in Indiana when he left the state under
USSORNA, but failed to do so, the court observed that venue was proper in either Indiana or South
Carolina had the federal government opted to prosecute there. Id. at 772.
13
The Seventh Circuit first addressed Leach's argument that USSORNA violates
the Ex Post Facto Clause under the Indiana Constitution and his reliance on Wallace v.
State. The court rejected the challenge, stating:
[T]he question before us is not whether Indiana has adopted a compliant
registration system (an issue relating only to its entitlement to certain
federal funds, see Carr, 130 S.Ct. at 2232), nor is it whether
[US]SORNA-a federal statute-"complies" with the law of any particular
state. The Supremacy Clause establishes that state constitutional provisions
cannot override federal statutes. See U.S. CONST. art. VI, cl. 2; see also
United States v. Baer, 235 F.3d 561 , 562 (lOth Cir.2000). And even if
Indiana' s system were flawed (a point on which we express no opinion),
Leach was also required to register in South Carolina and did not. We are
thus left only with Leach' s argument that [US]SORNA violates the Ex Post
Facto Clause of the United States Constitution.
Id. at 772. The Seventh Circuit then rejected Leach' s federal ex post facto claim because
"[a] sex offender violates the statute when, at any time after [US]SORNA was enacted,
he travels in interstate commerce and then fails to register. Because the law targets only
the conduct undertaken by convicted sex offenders after its enactment, it does not violate
the Ex Post Facto Clause." ld. at 773 (citations omitted). Finally, the court stated that
USSORNA' s registration requirements are triggered without respect to the date of the
conviction and federal guidelines require pre-USSORNA offenders to comply with those
requirements. "But that does not make them retrospective: [US]SORNA merely creates
new, prospective legal obligations based on the person' s prior history." ld. at 773.
Turning to our consideration of whether Andrews is required to register on
Indiana' s state registry in light of the Leach decision, we first observe that Leach' s
circumstances are factually distinct from those in this case. Leach failed to re-register as
a sex offender when he moved to South Carolina in 2008. He was then prosecuted under
14
federal law, in federal district court under 18 U.S.C. § 2250. The Seventh Circuit briefly
considered Leach's Wallace argument, but in the end, indicated that whether Leach was
required to register under Indiana's Act was unavailing because he was required to
7
register in South Carolina under USSORNA, and failed to do so. See id. at 722.
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 US SORNA 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.
7
The U.S, Department of Justice recognizes that sex offender registration is conducted at the state level
and that each jurisdiction has the authority to determine which offenders will be required to register.
Moreover, the federal government acknowledges that despite SO RNA, a jurisdiction should not register
an offender unless the offender is required to register under the jurisdiction's laws. Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, U.S. Department of Justice,
Sex Offender Registration and Notification in the United States: Current Case Law and Issues (July 2012).
15
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. 8 Greater protection of Hoosiers's rights under the Indiana Constitution is
8
Acknowledging that some provisions of USSORNA may not pass state constitutional muster, Congress
enacted 42 U .S.C. § 16925, which contains the stated goal of bringing states into substantial compliance
with USSORNA to assist the state in avoiding the Joss of federal funding. Specifically, that section
provides in pertinent part:
(b) State constitutionality
(I) In general
When evaluating whether a jurisdiction has substantially implemented this subchapter,
the Attorney General shall consider whether the jurisdiction is unable to substantially
implement this subchapter because of a demonstrated inability to implement certain
provisions that would place the jurisdiction in violation of its constitution, as determined
by a ruling of the jurisdiction's highest court.
(2) Efforts
If the circumstances arise under paragraph (1 ), then the Attorney General and the
jurisdiction shall make good faith efforts to accomplish substantial implementation of
this subchapter and to reconcile any conflicts between this subchapter and the
jurisdiction's constitution. In considering whether compliance with the requirements of
this subchapter would likely violate the jurisdiction's constitution or an interpretation
thereof by the jurisdiction's highest court, the Attorney General shall consult with the
chief executive and chief legal officer of the jurisdiction concerning the jurisdiction's
interpretation of the jurisdiction's constitution and rulings thereon by the jurisdiction's
highest court.
(3) Alternative procedures
If the jurisdiction is unable to substantially implement this subchapter because of a
limitation imposed by the jurisdiction's constitution, the Attorney General may
determine that the jurisdiction is in compliance with this chapter if the jurisdiction has
made, or is in the process of implementing reasonable alternative procedures or
accommodations, which are consistent with the purposes of this chapter.
16
not an uncommon principle in our state's jurisprudence. 9 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").
Andrews, who on the record before us is an apparently rehabilitated and
productive citizen of our state, was convicted of a sex offense almost thirty years ago,
and well before Indiana enacted INSORA. Accordingly, pursuant to our supreme court's
opinion in Wallace, we must conclude that Andrews's petition for removal of his name
from Indiana's sex offender registry should have been granted.
Reversed and remanded with instructions to grant Andrews's petition for removal
of his name and any other identifying information from Indiana's sex offender registry.
VAIDIK, J. and BARNES, J., concur.
See~ Litchfield v. State, 824 N.E.2d 356, 363 (Ind. 2005) (noting that searches of trash are generally
9
permissible under the Fourth Amendment, but applying a stricter analysis under Article I, Section 11 of
the Indiana Constitution and concluding that generally it is "not reasonable for law enforcement to search
indiscriminately through people's trash").
17