FILED
Jul 01 2016, 8:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Gregory F. Zoeller
Brownsburg, Indiana Attorney General
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard J. McVey, July 1, 2016
Appellant-Defendant, Court of Appeals Case No.
73A04-1601-CR-12
v. Appeal from the Shelby Circuit
Court
State of Indiana, The Honorable Charles D.
Appellee-Plaintiff. O’Connor, Judge
Trial Court Cause No.
73C01-0206-FA-5
Vaidik, Chief Judge.
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Case Summary
[1] Richard J. McVey was convicted of Class C felony child molesting for
molesting his half-sister in 2001. After the molestation, the legislature amended
the Indiana Sex Offender Registration Act to require lifetime registration for
offenders like McVey, as opposed to the previous requirement of ten years. It
also enacted the unlawful-entry statute, which makes it a crime for a person
who is required to register as a sex offender and who is convicted of child
molesting to enter school property. McVey contends that both enactments, as
applied to him, violate the Indiana Constitution’s prohibition against ex post
facto laws. We agree with McVey as to the lifetime-registration requirement
but not as to the unlawful-entry statute. We therefore affirm in part and reverse
in part.
Facts and Procedural History
[2] Effective July 1, 2001, a defendant eighteen years or older who is convicted of
molesting a child less than twelve years old is required to register as a sex
offender for life. See P.L. 238-2001, § 13; Ind. Code Ann. § 5-2-12-13(c)
(LexisNexis 2001), now codified at Ind. Code Ann. § 11-8-8-19(c) (West Supp.
2015). Before July 1, 2001, a defendant convicted of child molesting was
required to register for only ten years, regardless of the ages of the defendant
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and the victim. See Gonzalez v. State, 980 N.E.2d 312, 315 (Ind. 2013); see also
Ind. Code Ann. § 5-2-12-13 (LexisNexis 1997).1
[3] In addition, effective July 1, 2015, a person who is required to register as a sex
offender and who is either found to be a sexually violent predator or convicted
of, among other child crimes, child molesting commits unlawful entry by a
serious sex offender, a Level 6 felony, when he “knowingly or intentionally
enters school property.” Ind. Code Ann. § 35-42-4-14(b) (West Supp. 2015).
[4] In June 2002, the State charged McVey with five counts for molesting his half-
sister, J.H.: Count I: Class B felony child molesting; Count II: Class A felony
child molesting; Counts III-IV: Class C felony child molesting; and Count V:
Class B felony incest. The charges were based on events that occurred between
October 1998 and August 2001, which is a time period that straddles the
effective date of the amendment requiring lifetime registration. The jury found
McVey guilty of all five counts. At McVey’s December 2003 sentencing
hearing, the trial court merged Count IV with Count III and Count V with
Count I and entered judgment of conviction for Counts I, II, and III only. The
court sentenced McVey to concurrent terms of ten years for Count I, with six
years executed and four years suspended; thirty years for Count II, with twenty
1
The State, relying on Gonzalez, says that the amendment took effect in 2006. Although the statute was
recodified in 2006 from Title 5 to Title 11, the statute was actually amended in 2001 to provide that a
defendant eighteen years or older who is convicted of molesting a child less than twelve years old is required
to register as a sex offender for life. See P.L. 238-2001, § 13.
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years executed and ten years suspended; and four years for Count III, with two
years executed and two years suspended.
[5] McVey was released from the Indiana Department of Correction on July 15,
2011, at which time he started probation and registered as a sex offender for
life. See Appellant’s P-C App. p. 309 (listing registration start date as July 15,
2011). A year later, in July 2012, the trial court found that McVey violated his
probation and sent him back to the DOC for “two years executed.” Id. at 298-
99. McVey was released to parole in 2014.
[6] In the meantime, McVey sought post-conviction relief. In July 2015, the post-
conviction court vacated McVey’s convictions for Counts I and II, leaving only
a conviction for Count III.2 Specifically, the post-conviction court found that
McVey’s trial counsel was deficient because counsel “was not appropriately
knowledgeable about the admissibility of statements made during a polygraph
examination and the post-test interview” and failed to advise McVey “that
although polygraph examination results are not admissible, statements made
during the test and post-test interview are admissible.” Id. at 283-84. The court
concluded that if McVey had not made such statements during the polygraph
examination and the post-test interview, “there is a reasonable probability that
2
The charging information for Count III alleges that “between the dates of October 1998 and August 2001,”
McVey performed or submitted to fondling or touching with J.H. with the intent to arouse or satisfy his or
J.H.’s sexual desires. Appellant’s Direct Appeal App. p. 37.
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the outcome would have been different.” Id. at 285.3 The court did not vacate
Count III, however, because it found that McVey admitted at trial that he
“allowed J.H. to masturbate him,” thus committing the offense in Count III.
Id. at 284-85. Because McVey had already served the sentence for Count III,
the court ordered him released from parole immediately. Id. at 292.4
[7] In September 2015, McVey filed two petitions pursuant to Indiana Code section
11-8-8-22(c), which provides that an offender may petition a court to be
removed from the registry and to require him to register under less-restrictive
conditions.5 First, McVey filed a petition to be removed from the lifetime sex-
offender registry. Second, he filed a petition asking to be exempt from the
unlawful-entry statute because he was convicted of the qualifying offense (child
molesting) before the statute went into effect.6 Following a hearing, the trial
court denied both petitions. Id. at 338.
3
On direct appeal, McVey argued that the trial court abused its discretion by admitting these statements into
evidence. We affirmed, concluding that McVey voluntarily made the statements. McVey v. State, 863 N.E.2d
434, 442-43 (Ind. Ct. App. 2007), reh’g denied, trans. denied. On post-conviction, McVey framed the issue as
ineffective assistance of counsel.
4
The record shows that McVey was incarcerated from July 8, 2002, to July 22, 2002, and from October 1,
2003, to July 15, 2011, for Counts I, II, and III. Appellant’s P-C App. p. 294.
5
Contrary to the State’s argument on appeal, McVey filed these petitions in the correct court. Indiana Code
section 11-8-8-22(d) provides that an offender shall file the petition “in the circuit or superior court of the
county in which the offender resides.” Because McVey lives in Shelby County, he correctly filed the petition
in Shelby Circuit Court (which happened to be the same court where he was convicted, sentenced, and
granted partial post-conviction relief).
6
McVey alleged that he needed to enter school property because he was in the process of applying for a
commercial driver’s license (CDL) and, as part of that process, needed to take a course at Blue River Career
Programs, which serves both high-school students and adults. See Blue River Career Programs,
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[8] McVey now appeals.
Discussion and Decision
I. Retroactive Application of Lifetime-Registration
Requirement
McVey first contends that because the events underlying Count III took place
before July 1, 2001—which is when the amendment requiring him to register as
a sex offender for life as opposed to ten years went into effect—requiring him to
register as a sex offender for life violates Indiana’s prohibition against ex post
facto laws. Article 1, Section 24 of the Indiana Constitution prohibits ex post
facto laws, which impose punishment for an act that was not punishable at the
time it was committed or which assign additional punishment to an act already
punished. Flanders v. State, 955 N.E.2d 732, 748 (Ind. Ct. App. 2011), trans.
denied, reh’g denied. “The policy underlying 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.” Gonzalez, 980 N.E.2d
at 316 (quotation omitted).
[9] The Indiana Supreme Court addressed whether the retroactive application of
the 2001 amendment, which changed the registration requirement from ten
years to life, violated Indiana’s ex post facto provision in Gonzalez. In that case,
http://www.brcp.k12.in.us/ (last visited June 9, 2016); see also Ind. Code § 35-31.5-2-285 (defining “school
property”).
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the defendant pled guilty to child solicitation in 1997, well before the 2001
amendment became effective. After the defendant had fully served his sentence
and probation and during the ten-year period of his required registration, the
statute was amended to require lifetime registration. Our Supreme Court
concluded that Indiana’s Ex Post Facto Clause prohibited retroactive
application of the lifetime-registration requirement to the defendant. Id. at 315.
[10] Like the defendant in Gonzalez, McVey argues that because he committed the
offense in Count III before the amendment went into effect on July 1, 2001,
Indiana’s Ex Post Facto Clause prohibits retroactive application of the lifetime-
registration requirement to him.7 McVey acknowledges that the charging
information for Count III alleges that the offense occurred between October
1998 and August 2001, which includes a brief period when the amendment was
effective; however, he points out that Count III is based entirely on his
admission at trial that he let J.H. masturbate him, which occurred before July 1,
2001. He is correct.
[11] In its order vacating McVey’s convictions in Counts I and II, the post-
conviction court explained that it was not vacating his conviction in Count III
because McVey admitted at trial that he “allowed J.H. to masturbate him,” thus
committing the offense in Count III. Appellant’s P-C App. p. 284-85. Indeed,
7
Although our Supreme Court found an ex post facto violation “as applied” to the defendant in Gonzalez,
980 N.E.2d at 321, the only ground upon which the State distinguishes Gonzalez is that the defendant in
Gonzalez committed the offense before the 2001 amendment went into effect. But as explained below, we also
find that McVey committed the offense before the 2001 amendment went into effect.
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McVey testified at trial that he had engaged in only one sex act with J.H. That
is, on one occasion, J.H. came into McVey’s bedroom when he was asleep;
when he woke up, J.H. “was stroking [his] penis.” Direct Appeal Tr. p. 407.
After about a minute, he ejaculated. Id. Although McVey did not testify as to
when this single incident occurred, Indiana State Police Officer Mark James
did. Officer James testified that he interviewed McVey on May 28, 2002,
during which McVey said that the incident occurred “approximately twelve to
fourteen months ago.” Id. at 223. Accordingly, the single incident for which
McVey now stands convicted occurred sometime between March and May
2001, which is before the amendment went into effect on July 1, 2001. Because
Indiana’s Ex Post Facto Clause prohibits retroactive application of the lifetime-
registration requirement to McVey, he is required to register for only ten years.
[12] McVey claims, however, that this ten-year period has already expired and
therefore he should be removed from the sex-offender registry, because “[b]ut
for the sentences imposed for counts one and two, which were subsequently
vacated, [he] would have been released from the [DOC] on September 30,
2004,” not July 15, 2011. Indiana Code section 11-8-8-19(a) provides that
when a sex offender is required to register for ten years, the sex offender must
do so “until the expiration of ten (10) years after the date” the sex offender is
released from a penal facility for the sex offense requiring registration. The
registration period is tolled during any period that the sex offender is
incarcerated. Ind. Code § 11-8-8-19(a).
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[13] The record shows that McVey was released from the DOC for Counts I, II, and
III on July 15, 2011. See Appellant’s P-C App. p. 297. Nevertheless, McVey
argues that “fundamental due process and basic fairness” dictate that the ten-
year period should be treated as if it started on September 30, 2004. Appellant’s
Reply Br. p. 10. McVey, however, cites no authority in support of this
argument. In addition, the plain language of the statute provides that the ten-
year period starts when the sex offender is released from prison, not when the
sex offender should have been released. Accordingly, we find that McVey’s
ten-year registration period started when he was actually released from prison
on July 15, 2011. Because McVey was incarcerated from May 1, 2012, to May
1, 2014—a total of 730 days—for violating his probation, see Appellant’s P-C
App. p. 298-99, McVey’s ten-year-registration period is extended for 730 days.8
II. Retroactive Application of Unlawful-Entry Statute
[14] McVey next contends that applying the unlawful-entry statute to him violates
Indiana’s ex post facto provision because he committed the qualifying offense
(child molesting) in 2001, well before the unlawful-entry statute went into effect
on July 1, 2015.9
8
McVey notes that he was incarcerated for 150 days in another case. See Appellant’s Reply Br. p. 10.
If McVey was incarcerated for any days in addition to the 730 days he was incarcerated for violating
his probation, then his ten-year registration period is extended by these days as well.
9
The State argues that it is too early for McVey to make an ex post facto claim because he has not been
charged with unlawful entry by a serious sex offender. See Appellee’s Br. p. 26-27. A person “should not be
required to face the Hobson’s choice between forgoing behavior that he believes to be lawful and violating the
challenged law at the risk of prosecution.” Smith v. Wis. Dep’t of Agric., 23 F.3d 1134, 1141 (7th Cir. 1994); see
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[15] In evaluating an ex post facto claim under the Indiana Constitution, our courts
apply the “intent-effects” test. Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009),
reh’g denied. First, we examine “what type of scheme” the General Assembly
intended the Sex Offender Registration Act (“the Act”) to establish. Gonzalez,
980 N.E.2d at 316. If the legislature’s purpose was to impose punishment, then
the inquiry ends and an ex post facto violation is found. Id. If, however, the
legislature’s intent was regulatory or civil in nature, then the court must move
to the second prong of the inquiry to determine whether the effects of the Act
are so punitive as to transform the regulatory scheme into a criminal penalty.
Id. Because there is no available legislative history and the Act does not contain
a purpose statement, our Supreme Court has consistently assumed without
deciding that the legislature’s intent in passing the Act was to create a civil,
regulatory, non-punitive scheme, and then moved to the second part of the test.
See id.
[16] For the second part of the test, we consider whether the effects of the Act, as
applied to that defendant, are so punitive in nature as to constitute a criminal
penalty. Id. at 317. In evaluating the effects, we apply the following seven
factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963): (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
also Greer v. Buss, 918 N.E.2d 607, 614 (Ind. Ct. App. 2009) (acknowledging that a person “need not ‘first
expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his
exercise of constitutional rights’” (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
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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 it has a rational alternative
purpose; and (7) whether it appears excessive in relation to the alternative
purpose. Jensen v. State, 905 N.E.2d 384, 391 (Ind. 2009). These factors are
neither exhaustive nor dispositive; they provide a framework for the analysis.
Tyson v. State, No. 45S03-1509-CR-528, 2016 WL 756366 (Ind. Feb. 25, 2016).
[17] Our Supreme Court addressed the retroactive application of a similar statute,
the residency-restriction statute, in State v. Pollard, 908 N.E.2d 1152 (Ind. 2009).
Effective July 1, 2006, a person who is required to register as a sex offender and
who is either found to be a sexually violent predator or convicted of certain
crimes against children commits sex offender registry offense, a Level 6 felony,
if he knowingly or intentionally resides within 1000 feet of school property, a
youth-program center, or a public park. Ind. Code Ann. § 35-42-4-11 (West
Supp. 2015). In Pollard, the defendant argued that the residency-restriction
statute violated Indiana’s ex post facto provision because he committed the
qualifying offense before the statute went into effect.10 In determining the
effects of the statute, the Court analyzed the seven factors from Mendoza-
Martinez and concluded that Factors 1, 2, 4, 5, and 7 were punitive as applied to
10
The public law that created the residency-restriction statute contains a non-code provision that the statute
applies “only to crimes committed after June 30, 2006.” See P.L. 6-2006, § 10. Accordingly, our Supreme
Court noted in Bleeke v. Lemmon that this statute applies only to offenders who commit their crimes after June
30, 2006. 6 N.E.3d 907, 922-23 (Ind. 2014).
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the defendant: (1) the restraint imposed by the residency-restriction statute was
not minor or indirect, as it affected the defendant’s freedom to live in a house
that he owned before the statute went into effect and had lived in for twenty
years; (2) living restrictions are common conditions of probation and parole; (4)
the residency-restriction statute is designed to reduce the likelihood of future
crimes by depriving sex offenders of the opportunity to commit the crimes; (5)
the defendant’s guilt on the qualifying offense exposed him to further criminal
liability under the residency-restriction statute; and (7) because the residency-
restriction statute also applies to sexually violent predators (which can include
defendants convicted of sex crimes not involving children) and the abbreviated
record presented on appeal did not include the sex offense that the defendant
was convicted of, restricting residence based on conduct that may have nothing
to do with crimes against children was punitive. Accordingly, the Court
concluded that, as applied to the defendant, the residency-restriction statute
violated Indiana’s ex post facto provision because it “impose[d] burdens that
ha[d] the effect of adding punishment beyond that which could have been
imposed when his crime was committed.” Id. at 1154.
[18] Using Pollard as a guide, we find that Factors 1 and 7 are non-punitive as
applied to McVey and thus readily distinguish this case from Pollard. As for
Factor 1, which addresses whether the law subjects those within its purview to
an affirmative disability or restraint, the record shows that McVey wants to
enter school property, Blue River Career Programs, to take a CDL class.
Notably, McVey does not allege that this is the only place where he can take the
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class. And it appears that McVey started the CDL process after the unlawful-
entry statute went into effect on July 1, 2015. An offender who is prohibited
from entering school property to take a class after the unlawful-entry statute
became effective is very different from an offender who is prohibited from living
in a house that the offender owned and lived in for twenty years before the
residency-restriction statute became effective. The effects to McVey are minor
in comparison. See Sewell v. State, 973 N.E.2d 96, 103 (Ind. Ct. App. 2012)
(applying the residency-restriction statute to the defendant did not violate
Indiana’s ex post facto provision because he “did not reside [in] or own
property within 1,000 feet of the church when he was convicted of child
molesting. Nor has he shown that he resided in property which only later fell
within a protected zone . . . . We conclude that because [the defendant’s]
residency decision occurred after the enactment of the statute, [his] prosecution
does not violate” Indiana’s ex post facto provision). This factor is non-punitive
as applied to McVey.
[19] Factor 7, which addresses whether the statute appears excessive in relation to
the alternative purpose assigned, is given the greatest weight. See Pollard, 908
N.E.2d at 1153. Although the unlawful-entry statute, like the residency-
restriction statute, also applies to sexually violent predators (which can include
defendants convicted of sex crimes not involving children), McVey was
convicted of child molesting, which is a crime against children. In contrast, in
Pollard, it was unknown whether the defendant’s sex-offense conviction was
against a child. Id. at 1147 n.1 (“The stipulated facts say nothing about the
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nature of the offense or the sentence imposed.”). Accordingly, the Pollard Court
found that because the residency-restriction statute applied to sexually violent
predators, restricting residence based on conduct that may have nothing to do
with crimes against children was punitive as applied to the defendant. But
because McVey was convicted of child molesting, this factor is non-punitive as
applied to McVey.
[20] Because of the distinctions between Pollard and this case—particularly Factor 7,
which is given the greatest weight—we conclude that, as applied to McVey, the
unlawful-entry statute does not violate Indiana’s ex post facto provision.
[21] Affirmed in part and reversed in part.
Barnes, J. and Mathias, J., concur.
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