Jun 17 2015, 7:58 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Gregory F. Zoeller
LeBlanc & Mulholland, LLC Attorney General of Indiana
Crown Point, Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin A. Ammons, June 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
45A03-1411-CR-394
v. Appeal from the Lake Superior
Court.
State of Indiana, The Honorable Diane Ross Boswell,
Judge.
Appellee-Plaintiff.
Cause No. 45G03-8811-CF-217
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Kevin A. Ammons (Ammons), appeals the denial of his
petition to remove his designation as a sexually violent predator (SVP) and the
accompanying requirement that he register as a sex offender for life.
[2] We affirm.
ISSUE
[3] Ammons raises one issue on appeal which we restate as: Whether the trial
court erred in denying his petition to remove his SVP designation.
FACTS AND PROCEDURAL HISTORY
[4] The relevant facts are not in dispute. On November 10, 1988, Ammons was
charged with one Count of child molesting, a Class A felony. After a trial by
jury in November 1989, Ammons was convicted and was sentenced to thirty-
five years in the Department of Correction (DOC) with 371 days of credit. In
November 2006, Ammons was released to parole, and soon thereafter, he
registered as sex offender with the Lake County Sheriff’s Department, in
Indiana. Ammons satisfactorily completed his parole in 2007. In March 2009,
Ammons moved to Iowa. As an Iowa resident, Ammons was required to
register as sex offender for ten years from the date he completed his parole. In
2011, the State of Iowa charged Ammons for failing to register as a sex
offender. Ammons pled guilty and he served eleven months of supervised
probation. Ammons continued to reside in Iowa until September 2013 when he
relocated to Indiana.
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[5] On February 19, 2014, the Lake County Sheriff’s Department notified Ammons
in writing that he was required to register as a SVP. On February 27, 2014,
Ammons filed a pro se verified petition for removal from the Registry pursuant
to Indiana Code Section 11-8-8-22,1 claiming that the Indiana Sex Offender
Registration Act (the Act) as applied to him violated the ex post facto clause of
the Indiana Constitution because he had committed the sex offense before the
Act became effective. The Lake County Prosecutors’ office2 responded to
Ammons’ petition stating in part that “there are no legal grounds on which to
object.” (Appellant’s App. p. 21). The trial court granted Ammons’ petition on
March 24, 2014. On April 16, 2014, the State filed a motion to correct error
asking the trial court to set aside its Order and set a hearing date. On May 6,
2014, the trial court vacated its initial Order and set an evidentiary hearing date
for May 28, 2014. At the hearing, the trial court took judicial notice of
Ammons’ trial transcript, heard arguments from both sides, and after both
parties had filed their briefs, it took the matter under advisement. On October
1
Ind. Code § 11-8-8-22 (c) governs petitions to remove designations or to register under less restrictive
conditions. After receiving a petition under this section, the court may: (1) summarily dismiss the petition;
or (2) give notice to [various entities] and set the matter for hearing.” I.C. § 11-8-8-22(d).
2
The record shows that the Lake County Prosecutor’s office later requested the State to appear and respond
to Ammons petition.
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15, 2014, the trial court denied Ammons’ petition to be removed from the
Registry and subsequently directed Ammons to register as a SVP.
[6] Ammons now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Indiana Sex Offender Registration Act
[7] We first determine the applicable statutory framework before turning to
Ammons’ contention on appeal.
[8] As way of background, in the wake of a convicted sex offender molesting and
murdering ten-year-old Zachary Snider, the Indiana General Assembly passed
the Act in March 2, 1994. Ind. P.L. No. 11–1994, § 7 (eff. July 1, 1994)
(codified at Ind.Code §§ 5-2-12-1 to 5-2-12-13) (current version at I.C. §§ 11-8-8-
1 to 11-8-8-22). “Originally the duty to register was prospective only, and
terminated when the offender was no longer on probation or discharged from
parole.” Wallace v. State, 905 N.E.2d, 371,375 (Ind. 2009) (citing I.C. § 5-2-12-
13 (1994)), reh’g denied. As originally drafted, an individual who committed one
of eight offenses—including child molesting where the victim was less than
eighteen years old—was required to register with law enforcement agencies for
a set period of time. I.C. §§ 5-2-12-4;-5 (1994).
[9] Since its inception in 1994, the Act has been amended several times, and
actively expanded “in both breadth and scope.” Wallace, 905 N.E.2d at 375. In
Hollen v. State, 994 N.E.2d 1166, 1175 (Ind. Ct. App. 2013), we reviewed the
Act’s framework as follows:
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In 1995 the duty to register expanded to ten years after the date the
offender was released from prison, placed on parole, or placed on
probation, whichever occurred last. In 1998, the legislature defined a
“sexually violent predator” as “an individual who suffers from a
mental abnormality or personality disorder that makes the individual
likely to repeatedly engage in any of the offenses described in section 4
of this chapter.” Ind. Code § 5-2-12-4.5 (1998); P.L. No. 56-1998, § 7
(eff. July 1, 1998). That same year, the legislature amended Ind. Code
§ 35-38-1-7.5(c) to provide that “[a]t the sentencing hearing, the court
shall determine whether the person is a [SVP]. Before making a
determination under this section, the court shall consult with a board
of experts consisting of two (2) board certified psychologists or
psychiatrists who have expertise in criminal behavioral disorders.” See
Pub. L. No. 56-1988, § 17 (eff. July 1, 1998). In 2003, the legislature
amended Ind. Code § 5-2-12-13 to provide that “[a]n offender who is
found to be a [SVP] by a court under [Ind. Code] § 35-38-1-7.5(b) is
required to register for life.” P. L. No. 222-2003, § 1 (eff. July 1,
2003).3 In 2007, the legislature amended Ind. Code § 35-38-1-7.5(b) to
provide that “a person is a [SVP] by operation of law if an offense
committed by the person satisfies the conditions set forth in
subdivision (1) or (2) and the person was released from incarceration,
3
We note that Hollen court left out the 2006 Amendment. Effective July 1, 2006, the legislature amended the
Act requiring lifetime registration for a defendant whose offense qualifies the defendant as a “[SVP]”. Ind.
Code § 11-8-8-19 (2006). Child molesting—one of the offenses to which Ammons convicted of—falls within
that category. Ind. Code § 35-38-1-7.5(b) (2006). We further note that in 2006, the definition of SVP
contained no limitation on the date of a conviction that could qualify an offender for the designation. See
Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009).
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secure detention, or probation for the offense after June 30, 1994.”
P.L. No. 216–2007, § 37 (eff. May 10, 2007).
[10] Based on the plain language of Indiana Code section 35-38-1-7.5(b), we
conclude that the Act applies retroactively to Ammons. Specifically, because
Ammons was convicted of child molesting as a Class A felony—one of the
qualifying offenses listed in I.C. § 11-8-8-5—and because he was released from
incarceration after June 30, 1994, the statute provides that his status is a SVP by
operation of law and he must register. This notwithstanding, however,
Ammons’ classification as a SVP by operation of law requiring registration is
only valid if application of the Act does not violate applicable provisions of
constitutional law.
II. Ex Post Facto Claim
[11] Ammons contends that his classification as a SVP violates the Ex Post Facto
Clause under the Indiana and United State Constitutions. Responding to
Ammons’ claim, the State argues that the event triggering Ammons
requirement to register as a sex offender in Indiana was not when he committed
the underlying crimes in 1988, but when he returned to Indiana in 2013. The
State specifically argues that “[b]y reclaiming his Indiana citizenship, Ammons
voluntarily assented to Indiana law in effect in 2013.” (Appellee’s Br. p. 6).
The State further contends that the correct date to analyze Ammons’ ex post facto
claim is December 2013. We disagree. As this court noted in Burton v. State,
977 N.E.2d 1004, 1009 (Ind. Ct. App. 2012), trans. denied, “[o]f importance in
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determining whether [the Act] 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
[the Act].”
[12] Turning to Ammons’ arguments regarding whether his registration and status
as an SVP violate the prohibition against ex post facto laws in the Indiana
Constitution and the United States Constitution, we observe that Article I, § 10
of the United States Constitution prohibits the States from enacting laws with
certain retroactive effects. Minton v. State, 802 N.E.2d 929, 933 (Ind. Ct. App.
2004), trans. denied. Similarly, the Indiana Constitution provides, “[N]o ex post
facto law . . . shall ever be passed.” IND. CONST. art. I, § 24. The ex post facto
prohibition forbids any law that imposes a punishment for an act that was not
punishable at the time it was committed, or imposes additional punishment to
the punishment then prescribed. Wallace, 905 N.E.2d at 377. “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.; see also Blakemore v. State, 925 N.E.2d 759, 761 (Ind. Ct.
App. 2010).
[13] When we evaluate an ex post facto claim under the Indiana Constitution, our
courts apply the “intent-effects” test. Wallace, 905 N.E.2d at 378. First, we
examine “what type of scheme” the General Assembly intended the Act to
establish. Id. Our supreme court has held that “in passing the Act ‘the
legislature’s intent was to create a civil, non-punitive, regulatory scheme.’”
State v. Pollard, 908 N.E.2d 1145, 1150 (Ind. 2009); see also Wallace, 905 N.E.2d
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at 379. We must therefore consider whether the effects of the Act, as applied to
Ammons, “are so punitive in nature as to constitute a criminal penalty.” See
Gonzalez v. State, 980 N.E.2d 312, 317 (Ind. 2013) (citing Wallace, 905 N.E.2d at
378).
[14] In evaluating a statute’s effects, our supreme court has adopted a seven-factor
test—the Mendoza-Martinez test—for determining whether a law is an
unconstitutional ex post facto law: “(1) whether the sanction involves an
affirmative disability or restraint; (2) whether it has historically been regarded as
punishment; (3) whether it comes into play only on a finding of scienter; (4)
whether it promotes the traditional aims of punishment—retribution and
deterrence; (5) whether the behavior to which it applies is already a crime; (6)
whether it has a rational alternative purpose; and (7) whether it is excessive in
relation to the alternative purpose assigned.” Wallace, 905 N.E.2d at 379.
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). No one factor is
outcome determinative, and “our task is not simply to count the factors on each
side, but to weigh them.” Id. We address each factor in turn.
1. Affirmative Disability or Restraint
[15] The first of the Mendoza-Martinez factors considers whether the sanction
involves an affirmative disability or restraint. The Gonzalez court noted that the
Act “imposes significant affirmative obligations and a severe stigma on those to
whom it applies.” Gonzalez, 980 N.E.2d at 317. The court further noted that an
offender must provide a wide array of personal information that is made public,
must register in person with local law enforcement and have his photograph
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taken annually, must re-register on changes in residential or employment status,
and he must carry valid identification at all times, among other requirements.
Id. In addition, the Gonzalez court found “extension of such intrusive
registration obligations to a lifetime requirement is an additional affirmative
restraint which weighs in favor of treating the effects of [the Act] as punitive.”
Id.
[16] Ammons committed the child molesting offense in 1988; registration for the
offense was not even required until July 1, 1994. In November 2006, Ammons
was released from the DOC. At the time, the legislature had amended the Act
such that a defendant who committed an offense qualifying the defendant as a
“sexually violent predator” under I.C. § 11-8-8-19 must register for life. When
Ammons committed the 1988 child molesting offense, he had not received fair
warning that his conduct would give rise to having to register as a sex offender,
let alone register for life. See Wallace 905 N.E.2d at 384. Considered as a
whole, the Act imposes substantial affirmative disabilities and restraints on
Ammons, and this first factor clearly favors treating the effects of the Act as
punitive when applied to him.
2. Sanctions that Have Historically Been Considered Punishment
[17] The Gonzalez court found the next factor, whether the sanction has historically
been regarded as a punishment, also weighed in favor of punitive treatment.
Gonzalez , 980 N.E.2d at 318. It noted that the dissemination and widespread
availability of offenders’ personal information has been found to resemble the
historical punishment of “shaming,” and by extending the duration of the
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registration requirement from ten years to life, the Act has the effect of
increasing shame on the defendant. Id. at 317-18. Here, we find that this factor
weighs the same way for Ammons.
3. Finding Scienter4
[18] The third factor is whether the statute comes into play only on a finding of
scienter. Id. “The existence of a scienter requirement is customarily an
important element in distinguishing criminal from civil statutes.” Wallace, 905
N.E.2d at 381. We focus on whether the sanction is linked to a showing of
mens rea; if it is, it is more likely to be considered punishment. Id. As our
supreme court observed in Wallace, the Act “overwhelmingly applies to offenses
that require a finding of scienter for there to be a conviction.” Id. In this case
however, Ammons qualifying offense is one of the few offenses included in the
Act for which there is no scienter requirement. Id. at n. 11; see I.C. § 35-42-4-3
(2013) (no scienter requirement for the offense of child molesting where there is
sexual intercourse or deviate sexual conduct with a child under the age of
fourteen). Thus, this factor is not punitive as applied to Ammons.
4
The term scienter is Latin for “knowingly” and is defined as “[a] degree of knowledge that makes a person
legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1463 (9th ed.
2009).
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4. The Traditional Aims of Punishment
[19] We next ask “whether [the Act’s] operation will promote the traditional aims of
punishment—retribution and deterrence.” Mendoza–Martinez, 372 U.S. at 168.
The underlying assumption is that if the statute promotes the traditional aims of
punishment, the statute is more likely punitive than regulatory. First, we
observe that under the Indiana Constitution the primary objective of
punishment is rehabilitation, not retribution. “The penal code shall be founded
on the principles of reformation, and not of vindictive justice.” IND. CONST.
art. I, § 18. Second, in addition to deterrence there are other objectives,
including the need to protect the community by sequestration of the offender
and community condemnation of the offender. Wallace, 905 N.E.2d at 381.
[20] It is true that to some extent, the deterrent effect of the registration and
notification provisions of the Act is merely incidental to its regulatory function.
Wallace, 905 N.E.2d at 381. And we have no reason to believe the Legislature
passed the Act for purposes of retribution—“vengeance for its own sake.” Id.
Nonetheless it strains credulity to suppose that the Act’s deterrent effect is not
substantial, or that the Act does not promote “community condemnation of the
offender,” both of which are included in the traditional aims of punishment.
Abercrombie v. State, 441 N.E.2d 442, 444 (Ind. 1982). Here, we conclude that
the fourth Mendoza–Martinez factor slightly favors treating the effects of the Act
as punitive when applied to Ammons.
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5. Application Only to Criminal Behavior
[21] Under the fifth factor we consider “whether the behavior to which [the Act]
applies is already a crime.” Mendoza–Martinez, 372 U.S. at 168. The fact that a
statute applies only to behavior that is already, and exclusively, criminal
supports a conclusion that its effects are punitive. Wallace, 905 N.E.2d at 382.
Although the registration requirement is triggered exclusively by criminal
behavior, Ammons’ offense, child molestation, was not a registration-triggering
offense at the time of its commission in 1988. In this regard, we conclude that
the factor supports the conclusion that the Act is punitive in effect as to
Ammons.
6. Advancing a Non-Punitive Interest
[22] We next ask whether, in the words of our supreme court, “an alternative
purpose to which [the Act] may rationally be connected is assignable for it.”
Mendoza–Martinez, 372 U.S. at 168-69. This statement is best translated as an
inquiry into whether the Act advances a legitimate regulatory purpose. Wallace,
905 N.E.2d at 383. Because the Act advances the legitimate regulatory purpose
of protecting the public from repeat sexual crime offenders, our cases have
consistently treated this factor as non-punitive. Gonzalez, 980 N.E.2d at 319.
Likewise, here, this factor weighs in favor of treating the effects of the Act as
non-punitive. See id.
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7. Excessiveness in Relation to Articulated Purpose
[23] Consideration of the seventh factor, i.e. whether the Act “appears excessive in
relation to the alternative purpose assigned,” centers on whether a registered
sex offender “can petition the court for relief from the obligation of continued
registration and disclosure.” See Gonzalez, 980 N.E.2d at 319.
[24] In Wallace, our supreme court recognized that the Act imposes “significant
affirmative obligations and a severe stigma on every person to whom it applies”
and “exposes registrants to profound humiliation and community-wide
ostracism.” Wallace, 905 N.E.2d at 379-80. Mindful of such onerous effects,
the court highlighted a deficiency of the Act as it then existed, observing:
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.
Id. at 384. On the same day that it handed down Wallace, our supreme court
handed down Jensen, a plurality decision supporting the proposition that
portions of the Act requiring lifetime registration may be applied retroactively if
the offender was already required to register at the time of his offense. Jensen,
905 N.E.2d at 394. In Jensen, under the terms of the Act at the time of Jensen’s
sentencing, he was required to report and register as a sex offender for a period
of ten years. Id. at 389. After his release from prison and probation, Jensen
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annually reported and registered as a sex offender. Id. During the ten-year
reporting period, the local sex offender registration coordinator contacted
Jensen and informed him that, due to an amendment of the Act, Jensen would
have to register for life as a SVP. Id. Jensen filed a motion with the trial court
to determine his registration status. Id. The trial court found Jensen to be a
SVP who must register for life. Id.
[25] Jensen appealed the trial court’s decision, and a panel of this court found that
the application of the amendment to the Act violated state ex post facto
considerations as applied to Jensen. Jensen v. State, 878 N.E.2d 400, 403 (Ind.
Ct. App. 2007), trans. granted. On transfer, our Supreme Court, using the
intents-effects test, determined that the amendment to the Act as applied to
Jensen was not punitive in nature, and thus did not run afoul of ex post facto
considerations. Jensen, 905 N.E.2d at 394. See also Lemmon v. Harris, 949
N.E.2d 803, 812–13 (Ind. 2011) (applying Jensen and concluding that a SVP
designation with lifetime registration requirements did not violate the ex post
facto clause).
[26] After the supreme court’s decision in both Wallace and Jensen, the General
Assembly responded by amending Indiana Code Section 11-8-8-22 (governing
sex offender registration) to address a mechanism by which a SVP can petition
the court for relief from the obligation of continued registration and disclosure.
By comparison, Indiana Code Section 35–38–1–7.5 (g) (governing findings
regarding sexually violent predators) grants relief to SVPs who can demonstrate
that they are no longer likely to reoffend. We understand the wording of
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Indiana Code Section 35–38–1–7.5(g) to provide offenders with an alternate
path to remove their SVP status by showing that they are no longer likely to
reoffend.
[27] As stated in the foregoing, SVP requirements were amended in 2006 and 2007.
The statutes now provide that offenders who commit certain specified crimes
are automatically classified as SVP. See Ind. Code § 35–38–1–7.5(b). Ammons
was convicted of child molesting and was released from incarceration after June
30, 1994, and thus, under the 2007 Amendment, is a SVP by operation of law.
However, following the reasoning of the Jensen court, we find that Indiana
Code section 35-38-1-7.5(g) allowing for an individualized determination based
on the likelihood to reoffend after an offender’s original ten-year registration
requirement is up, makes the Act seem even less punitive as applied to
Ammons. In sum, we find that on this seventh factor, the Act leans towards
treating the Act as non-punitive as applied to Ammons.
II. Balancing the Factors
[28] Turning to the Mendoza- Martinez factors, we are mindful that our task in
applying the factors is not simply to count the factors on each side, but to weigh
them. Gonzalez, 980 N.E.2d at 317. Furthermore, as this court found in
Flanders v. State, 955 N.E.2d 732, 751 (Ind. Ct. App. 2011), trans. denied, we
“accorded special weight” to the seventh factor of whether a sanction appears
excessive in relation to the alternative purpose assigned to it.
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[29] Ammons maintains that his “name could be substituted for [] Wallace’s name
in the supreme court analysis.” (Appellant’s Br. p. 8). In Wallace, the Indiana
supreme court held that the application of the Act to persons whose crimes
were committed before the Act’s 1994 enactment was unconstitutional as an ex
post facto law. See id. at 374-75. In applying the above mentioned factors, the
Wallace court concluded that only factor number six—advancing a non-punitive
interest—favored treating the registration requirement as non-punitive. “The
remaining factors, particularly the factor of excessiveness, point[ed] in the other
direction.” Id. at 384. In this regard, the Wallace 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.
[30] As discussed above, we concluded that factor one, two, four, and five of the
Mendoza-Martinez factors were punitive as applied to Ammons. The remaining
factors leaned towards treating the Act as non-punitive. As this court found in
Flanders we accord great weight to the seventh factor of whether a sanction
appears excessive in relation to the alternative purpose assigned to it. Although
Ammons argues that his case is more comparable to Wallace, our review of the
seventh factor, yields a different result. In Wallace, it was significant that the
Act provided no mechanism by which a SVP can petition the court for relief
from the obligation of continued registration and disclosure; nor shorten their
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registration or notification period, even on the clearest proof of rehabilitation.
Wallace, 905 N.E.2d at 384.
[31] As we noted above, effective July 1, 2006, the legislature amended the Act
requiring lifetime registration for a defendant whose offense qualifies the
defendant as a SVP. Ind. Code § 11-8-8-19 (2006). Child molesting is a
registration-triggering offense and our courts have consistently held that the Act
advances a legitimate regulatory purpose to protect the public from repeat sex
offenders, and most important—in light of the seventh factor—Ammons may
petition the trial court in the future for review of his dangerousness and
rehabilitation status at that time. See I.C. § 35-38-1-7.5(g); Lemmon, 949 N.E.2d
812-13.
[32] Like Jensen, and unlike Wallace, Ammons can avail himself of Indiana Code
section 35-38-1-7.5(g), by predicating his request for relief on the grounds that
he has been rehabilitated and presents no risk to the public. Moreover, our
supreme court found in both Jensen and Lemmon that the seventh factor was
non-punitive, and in light of that fact, the defendants in those cases had not
carried their burden of demonstrating that as applied to them, the Act violates
the Ex Post Facto Clause. While several of the factors lean toward treating the
Act as punitive as applied to Ammons, our determination must be governed by
the majority opinions in Lemmon and Jensen. Wallace does not compel reversal
of the trial court’s denial of Ammons’ petition to remove his designation as a
SVP.
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CONCLUSION
[33] In light of the foregoing, we conclude that Ammons has not carried his burden
of demonstrating that as applied to him the Act violates the Indiana
constitutional prohibition against ex post facto laws. In this regard, we affirm
the trial court.
[34] Affirmed.
[35] Bailey, J. concurs
[36] Barnes, J. dissents with separate opinion
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Kevin A. Ammons, Court of Appeals Case No.
45A03-1411-CR-394
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Barnes, Judge, dissenting.
[37] I respectfully dissent. I do not believe that requiring Ammons to register as a
sex offender is consistent with the Indiana Constitution’s Ex Post Facto Clause
as interpreted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind.
2009). As such, I conclude that the trial court should have granted Ammons’s
petition to be removed from Indiana’s sex offender registry.
[38] Although the majority proceeds to analyze Ammons’s registration requirement
under the full seven-part “intent-effects” test for Ex Post Facto claims, I do not
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believe it is necessary to do so, nor did either of the parties do so in their briefs.
Ammons’s 2011 Iowa conviction for failing to register as a sex offender was
based upon his 1988 Indiana conviction for child molesting. Putting aside the
question of the effect of the Iowa conviction for the moment, Ammons’s 1988
conviction, six years before enactment of Indiana’s sex offender registry, places
him on all fours with Wallace’s holding. No further analysis in that regard is
required, I believe. The majority cites in part Indiana Code Section 35-38-1-
7.5(g)’s provision for petitioning for removal of a sexually violent predator
determination as distinguishing this case from Wallace. However, this statutory
provision was already in effect in 2009 and noted by the Wallace court, and it
did not alter its analysis and conclusion that requiring a defendant to be placed
on the sex offender registry for a crime committed prior to the registry’s
creation violates the Indiana Constitution’s Ex Post Facto Clause. See Wallace,
905 N.E.2d at 384 n.14. I would also note that although the majority cites the
addition of Indiana Code Section 11-8-8-22 and its procedures for removal from
the sex offender registry, that statute was enacted for the purpose of addressing
Ex Post Facto claims such as Ammons’s and is not an independent basis for
removal from the registry. See Gonzalez v. State, 980 N.E.2d 312, 320 (Ind.
2013).
[39] Additionally, I disagree with the majority that this case is like Jensen v. State,
905 N.E.2d 384 (Ind. 2009). In that case, the court held that there was no Ex
Post Facto violation with respect to a defendant who committed a crime
requiring registration after the registration’s enactment, but the legislature
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subsequently amended the registration requirements to make them more
onerous. Jensen, 905 N.E.2d at 394. Here, however, Ammons committed his
crime before there was any registration requirement, which puts him squarely
within Wallace and not Jensen.
[40] The wrinkle in this case, of course, is that Ammons was convicted of failing to
register as a sex offender in Iowa after the Indiana registry was created and
before he moved back to Indiana—which conviction ordinarily would require
registration in Indiana. But that Iowa conviction “piggybacked” upon
Ammons’s pre-registry offense in Indiana. The majority seems to agree with
Ammons—as do I—that for purposes of an Ex Post Facto analysis, the relevant
date here is 1988—the year of Ammons’s original Indiana conviction—and not
2013, when he moved back to Indiana. The majority also cites Burton v. State,
977 N.E.2d 1004 (Ind. Ct. App. 2012), trans. denied. In that case, the defendant
committed a sex crime in Illinois in 1987, before there was a sex offender
registry in either Illinois or Indiana. Later, the defendant was twice convicted
in Illinois of failing to register as a sex offender; unlike in Indiana, Illinois law
does not bar retroactive sex offender registry requirements. The defendant then
moved to Indiana and was charged with failing to register as a sex offender,
based upon his Illinois convictions for failing to register.
[41] On appeal, this court held that the defendant while living in Indiana was
entitled to the protections of the Indiana Constitution and, thus, under Wallace
he could not be required to register as a sex offender in Indiana, even if he
could be forced to do so in Illinois. Burton, 977 N.E.2d at 1009. We also noted
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that, despite the defendant’s Illinois conviction for failing to register as a sex
offender that was entered after creation of Indiana’s sex offender registry, the
relevant date for purposes of Wallace was that of the original conviction that led
to the registry requirement, which occurred prior to the Indiana registry’s
creation. Id. Although the State asks us to reconsider Burton, I voted to concur
in that case, and I adhere to that vote. I also believe it is virtually
indistinguishable from the present case. That is, despite the 2011 Iowa
conviction for failing to register as a sex offender, that conviction stems from
Ammons’s pre-registry Indiana conviction for child molesting. And, so long as
Ammons lives in Indiana, he is entitled to the protections of Indiana’s
Constitution as interpreted by Wallace.
[42] Applying Burton and Wallace, I believe requiring Ammons to register as a sex
offender in Indiana violates the Indiana Constitution. I vote to reverse the
denial of Ammons’s petition to be removed from the Indiana sex offender
registry.
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