May 29 2015, 8:47 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Joel M. Schumm
Attorney General of Indiana
Paul T. Babcock
Kyle Hunter Certified Legal Intern
Deputy Attorney General Appellate Clinic
Indianapolis, Indiana Indiana University Robert H. McKinney
School of Law
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, May 29, 2015
Appellant-Respondent, Court of Appeals Case No.
49A05-1410-MI-463
v. Appeal from the Marion Superior
Court
Scott Zerbe, The Honorable Timothy W. Oakes,
Appellee-Petitioner Judge
Case No. 49D13-1403-MI-9780
Crone, Judge.
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
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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
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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 § 11-8-8-19(f).1
[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.2 A sex offender may petition a court to remove his designation as an
offender or impose less restrictive registration conditions. Ind. Code § 11-8-8-
22(c). The petitioner bears the burden of proving that he is entitled to relief.
Ind. Code § 11-8-8-22(h). In March 2014, Zerbe filed a petition to remove his
designation as an offender, asserting that SORA is an unconstitutional ex post
1
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.
2
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.
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facto law as applied to him because it was enacted after he committed his
Michigan offense, and therefore he “did not have a 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 filed a response in opposition. After a
hearing, the trial court issued an order summarily granting Zerbe’s petition.
The State now appeals.
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, 4 N.E.3d 821, 823 (Ind. Ct. App. 2014) (citations and italics
omitted), trans. denied. “‘The critical question in evaluating an ex post facto
claim “is whether the law changes the legal consequences of acts completed
before its effective date.”’” Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct. App.
2012) (quoting United States v. Brady, 26 F.3d 282, 291 (2nd Cir. 1994) (quoting
Weaver v. Graham, 450 U.S. 24, 31 (1981)).
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[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, 907 N.E.2d 559, 564 (Ind.
Ct. App. 2009), trans. denied. The constitutionality of a statute is a question of
law that we review de novo without deference to the trial court’s determination.
Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). “The party challenging the
constitutionality of a statute bears the burden of proof, and all doubts are
resolved against that party and in favor of the legislature.” Id.
[8] We recently addressed a substantially similar ex post facto challenge by a Texas
sex offender who moved to Indiana in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct.
App. 2015), reh’g denied. In 2001, Tyson committed aggravated sexual assault
in Texas, for which he was adjudicated a delinquent in 2002. Under Texas law,
he was required to register as a sex offender from 2002 until 2014. “In 2006,
SORA was amended to include in the definition of sex offender ‘a person who
is required to register as a sex offender in any jurisdiction.’” Id. at 1076
(quoting Ind. Code § 11-8-8-5(b)(1)). Tyson moved to Indiana in 2009. In
2012, he was stopped by a police officer in Lake County for an expired license
plate. The officer conducted a background check and learned that Tyson was
required to register as a sex offender in Texas and that the Lake County Sexual
Offender Registry showed no record of him registering as a sex offender in
Indiana. The State charged Tyson with failure to register as a sex offender.
Tyson filed a motion to dismiss, which the trial court denied.
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[9] On appeal, Tyson argued that SORA was unconstitutional as applied to him.
He asserted 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, 973 N.E.2d at 102 (holding that 2006 statute
prohibiting certain offenders from residing within 1000 feet of youth program
center was not unconstitutional ex post facto law as applied to defendant who
committed child molesting in 2001 and moved within 1000 feet of church with
youth program center in 2011 “because [his] residency decision occurred after
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the enactment of the statute”; “The fact that an element of a crime ‘“draws
upon antecedent facts”’ does not make [the statute] an ex post facto law. United
States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (quoting Cox v. Hart, 260
U.S. 427, 435, 43 S. Ct. 154, 67 L. Ed. 332 (1922)).”).
[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, 905 N.E.2d 371 (Ind. 2009), in which the defendant was “charged,
convicted, and served the sentence for” child molesting before SORA was
enacted in 1994. Id. at 384. Sometime after 2003, Wallace was charged with
and convicted of failure to register as a sex offender. On appeal, he claimed
that SORA violated the ex post facto provisions of the Indiana and U.S.
Constitutions. Our supreme court held that, as applied to Wallace, SORA
violated the ex post facto clause of the Indiana Constitution “because it
impose[d] burdens that have the effect of adding punishment beyond that which
could have been imposed when his crime was committed.” Id.
[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 offenders) by amending SORA to require out-of-state sex offenders to
continue fulfilling their obligation to register upon moving to Indiana. The
State observes that when Burton moved to Indiana, he “had the expectation
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that, as someone who had an existing registration requirement in another state,
he was required to register in Indiana.” Appellant’s Br. at 11. See Bd. of Trs. of
Hamilton Heights Sch. Corp. v. Landry, 638 N.E.2d 1261, 1268 (Ind. Ct. App.
1994) (“All persons are presumed to know the criminal laws.”), opinion on reh’g.
We agree with the State that “the date of the commission of the crime was
dispositive in Wallace, but it is not here,” and that, as in Tyson, we “should
consider the date that Zerbe moved to Indiana … as the relevant date for the ex
post facto analysis.” Id. at 12.
[13] Zerbe also cites Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), trans.
denied (2013). Burton committed a sex offense in Illinois in 1987 and was
sentenced to six years. At that time, he was under no obligation to register in
Illinois. “In 1996, Illinois amended its SORA to require persons who had
committed crimes such as Burton’s to register for a period of ten years.” Id. at
1006. “The version of [Indiana’s] SORA under which Burton is required to
register first became effective in 2006.” Id. Burton was convicted in Illinois for
registration violations in 2003 and 2007 and moved to Indiana, where he was
convicted of failure to register in 2009. Following his release, Burton was
charged with two more counts of failure to register and filed a motion to
dismiss on ex post facto grounds, which the trial court denied.
[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
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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 Burton “does not provide a complete
analysis necessary for an as-applied constitutional challenge” based on the facts
of this case. Id. at 12.3
3
Zerbe also cites Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012), trans. denied (2013), and State v.
Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012), trans. denied (2013). Because neither defendant was required to
register under SORA when they moved to Indiana, we find those cases inapplicable.
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[16] Consistent with our holding in Tyson, then, we conclude that SORA is not an
unconstitutional ex post facto law as applied to Zerbe. Therefore, we reverse
the trial court’s grant of his petition to remove his designation as a sex offender.
[17] Reversed.
Brown, J., concurs.
Baker, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, Court of Appeals Case No.
49A05-1410-MI-463
Appellant-Plaintiff,
v.
Scott Zerbe,
Appellee-Defendant.
Baker, Judge, dissenting.
[18] 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.
[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
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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, 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.
[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.” Slip op. p. 7. 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). I see no meaningful distinction between those cases and the instant
case. Moreover, I part ways with the majority in its criticism of the Burton
analysis.
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[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.
[23] 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 Zerbe 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 [Michigan’s]
laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Zerbe 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 and would affirm the trial court’s
judgment.
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