ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Benjamen W. Murphy Gregory F. Zoeller
Merrillville, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jan 10 2013, 11:40 am
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 45S03-1206-CR-307
ANDRE GONZALEZ, Appellant (Defendant),
v.
STATE OF INDIANA, Appellee (Plaintiff).
_________________________________
Appeal from the Lake Superior Court, No. 45G02-9606-CF-180
The Honorable Clarence D. Murray, Judge
The Honorable Natalie Bokota, Magistrate
_________________________________
On Transfer from the Indiana Court of Appeals, No. 45A03-1108-CR-369
_________________________________
January 10, 2013
Dickson, Chief Justice.
After the defendant had fully served his sentence of imprisonment and probation for
Child Solicitation, and during the ten-year period of his required registration as a sex offender,
the statutory registration requirement was amended to require lifetime registration in certain cir-
cumstances. The defendant's offense fell within these circumstances. Upon completion of his
ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex
Offender Registry, claiming refuge under the Indiana Constitution's prohibition against ex post
facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex
Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime reg-
istration requirement.
In 1997, the defendant, Andre Gonzalez, pled guilty to Child Solicitation, a class D felo-
ny.1 Ind. Code § 35-42-4-6. The trial court imposed a three-year sentence, with eighteen
months incarcerated and eighteen months on probation. Upon discharge from probation in 1999,
the defendant was required to register as a sex offender for ten years pursuant to the Sex Offend-
er Registration Act ("Act"). See Ind. Code § 5-2-12-5 (1996). In 2006, the legislature amended
the Act to require certain sex offenders, based on the details of their crimes, to register with local
law enforcement for life. See, e.g., Ind. Code § 11-8-8-19(c) (requiring lifetime registration if
offender over age eighteen and victim under age twelve at time of crime). In 2010, after the de-
fendant had completed ten years of registration, he wrote the trial court, requesting the removal
of his registration requirement. On January 27, 2011, the defendant, by counsel, filed a "Verified
Petition to Remove Sex Offender Designation Pursuant to Ind. Code 11-8-8-22." Appellant's
App'x at 34. The trial court denied the petition, and the defendant appealed. The Court of Ap-
peals reversed. Gonzalez v. State, 966 N.E.2d 648 (Ind. Ct. App. 2012). The State sought trans-
fer, urging that the decision of the Court of Appeals is inconsistent with precedent. We granted
transfer and thus consider the appeal and issues as originally presented to the Court of Appeals.
Ind. Appellate Rule 58(A).
In his appeal the defendant contends that, as applied to him, the 2006 amendments to the
Act, which belatedly extend his registration requirement from ten years to life, violate the prohi-
bition against ex post facto laws contained in the Indiana Constitution. Ind. Const. art. 1, § 24.
Important in the defendant's claim is that there is no opportunity for review of the defendant's
future dangerousness or complete rehabilitation. The State asserts that the availability of a re-
view process is irrelevant to the ex post facto determination.
The Indiana Constitution states "No ex post facto law . . . shall ever be passed." Id. This
provision prohibits, in relevant part, the passage of any law "which imposes a punishment for an
1
At the time of the offense, the victim was the nine-year-old child of the defendant's live-in girl-
friend. Appellant's App'x at 23.
2
act which was not punishable at the time it was committed; or imposes additional punishment to
that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17,
22 (1981) (quoting Cummings v. Missouri, 71 (4 Wall.) U.S. 277, 325–26, 18 L. Ed. 356, 364
(1867)) (internal quotation marks omitted). 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." Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.
2006) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S. Ct. 990, 992–93, 51 L. Ed. 2d
260, 265 (1977)).2
In evaluating an ex post facto claim under the Indiana Constitution we apply what is
commonly known as the "intent-effects" test.3 Wallace v. State, 905 N.E.2d 371, 378 (Ind.
2009). Under the first prong of this test, we determine what type of scheme the legislature in-
tended the statute to establish. Id. (citing Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146–
47, 155 L. Ed. 2d 164, 176 (2003)). If the legislature's intention was to impose punishment, the
inquiry ends and an ex post facto violation is found. If, however, the legislature's intention was
regulatory or civil in nature, then the court must move to the second prong of the inquiry to de-
termine whether the effects of the statute are so punitive as to transform the regulatory scheme
into a criminal penalty. See id.
First, "it is difficult to determine legislative intent since there is no available legislative
history and the Act does not contain a purpose statement." Wallace, 905 N.E.2d at 383 (quoting
Spencer v. O'Connor, 707 N.E.2d 1039, 1043 (Ind. Ct. App. 1999)). However, we are aided by
the principle that every statute stands before us clothed with the presumption of constitutionality
until that presumption is clearly overcome by a contrary showing. State v. Rendleman, 603
2
The defendant makes his ex post facto challenge solely on the basis of the Indiana Constitution
and not the U.S. Constitution. See Appellant's App'x 35 (referencing only the Indiana Constitution in his
Petition); Appellant's Br. at 7 ("Andre only raises a state claim which seems to offer more protection.").
3
While Indiana courts have adopted an approach consistent with the federal standard through use
of the intent-effects test, see Hevner v. State, 919 N.E.2d 109, 111 (Ind. 2010); Wallace v. State, 905
N.E.2d 371, 378 (Ind. 2009), the defendant is correct in his assertion that "Indiana does not use the
heightened standard of clearest proof . . . as used by the United States Supreme Court . . . ." Appellant's
Br. at 7; Wallace, 905 N.E.2d at 378 n.7 ("The heightened standard of clearest proof is not consistent with
this State's decisional law."). Thus, our analysis under the intent-effects test is independent from that of
the federal standard. See Wallace, 905 N.E.2d at 378.
3
N.E.2d 1333, 1334 (Ind. 1992). The defendant has put forth no evidence of punitive intent on
the part of the legislature with respect to the 2006 amendments to the Act. Therefore, as this
Court has consistently done, we assume without deciding that, in passing the Act, "the legisla-
ture'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 at 379.
Second, we consider whether the effects of the Act, as applied to the defendant, are so
punitive in nature as to constitute a criminal penalty. Wallace, 905 N.E.2d at 378. In evaluating
a statute's effects we are guided by the seven factors listed in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644, (1963).
[1] Whether 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 find-
ing of scienter, [4] whether its operation will promote the traditional aims of punish-
ment—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 as-
signable for it, and [7] whether it appears excessive in relation to the alternative purpose
assigned.
Wallace, 905 N.E.2d at 379 (alterations in original) (quoting Mendoza-Martinez, 372 U.S. at
168–69, 83 S. Ct. at 567–68, 9 L. Ed. 2d at 661). No one factor is determinative. We address
each factor in turn, noting that "our task is not simply to count the factors on each side, but to
weigh them." Id. (quoting State v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992)) (internal quotation
marks omitted).
1. Affirmative Disability or Restraint
The first factor is "[w]hether the sanction involves an affirmative disability or restraint."
Mendoza-Martinez, 372 U.S. at 168, 83 S. Ct. at 567, 9 L. Ed. 2d at 661. We have found that the
Act imposes significant affirmative obligations and a severe stigma on those to whom it applies.
Lemmon v. Harris, 949 N.E.2d 803, 811 (Ind. 2011) [hereinafter Harris]; Jensen v. State, 905
N.E.2d 384, 391 (Ind. 2009); Wallace, 905 N.E.2d at 379. The duties on the defendant are sig-
nificant: he must provide a wide array of personal information which is made public, Ind. Code
§ 11-8-8-8, must register in person with local law enforcement and have his photograph taken
annually, Ind. Code § 11-8-8-14(a), must re-register upon changes in residential or employment
4
status, Ind. Code § 11-8-8-11, and must carry valid identification at all times, Ind. Code § 11-8-
8-15, among other requirements.
The State contends that, because the defendant's offense, Child Solicitation, has always
been a qualifying sex offense, and because he was already required to register as a sex offender
at the time of his discharge from probation, see Ind. Code § 5-2-12-5 (1996), there is no further
burden or restraint placed on the defendant aside from a change in the duration of the registration
requirement. Appellee's Br. at 7–8. However, this Court has found that an increase to a lifetime
registration requirement was a particularly important additional restraint which leans in favor of
treating the effects of the Act as punitive. Harris, 949 N.E.2d at 811. Here, we again find that
the 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.
2. Sanctions That Have Historically Been Considered Punishment
The next factor, "whether [the sanction] has historically been regarded as a punishment,"
Mendoza-Martinez, 372 U.S. at 168, 83 S. Ct. at 567, 9 L. Ed. 2d at 661, which involves the dis-
semination and widespread availability of offenders' personal information, has been found to re-
semble the historical punishment of "shaming." See Harris, 949 N.E.2d at 811; Jensen, 905
N.E.2d at 392. By extending the duration of the registration requirement from ten years to life,
the Act has the effect of increasing shame on the defendant, which weighs in favor of punitive
treatment.
3. Finding of Scienter
In applying the third factor, "whether [the statute] comes into play only on a finding of
scienter," Mendoza-Martinez, 372 U.S. at 168, 83 S. Ct. at 567, 9 L. Ed. 2d at 661, our focus is
whether the sanction is linked to a showing of mens rea. If so, it is more likely to be considered
punishment. Here, the defendant's criminal conviction for Child Solicitation is a prerequisite for
5
registration, and this offense requires a showing of mens rea,4 as do the vast majority of offenses
to which the Act applies. Wallace, 905 N.E.2d at 381. Therefore, this factor also weighs in fa-
vor of treating the effects as punitive.
4. Traditional Aims of Punishment
The fourth factor considers "whether [the statute's] operation will promote the traditional
aims of punishment—retribution and deterrence."5 Mendoza-Martinez, 372 U.S. at 168, 83 S.
Ct. at 567, 9 L. Ed. 2d at 661. The more the Act promotes these traditional aims of punishment,
the more likely it is to be punitive. Harris, 949 N.E.2d at 812 (citing Jensen, 905 N.E.2d at 393).
Although lifetime registration required by the Act has a likely deterrent effect and promotes
community condemnation of offenders, it also serves a valid regulatory function by providing the
public with information related to community safety. As to the relative punitive or regulatory
values served by this factor, we are guided by prior decisions of this Court that have not found
deterrent and retributive effects as to a defendant claiming that the increased registration period
violates the Ex Post Facto Clause, and that have interpreted this factor as non-punitive as to such
a defendant. Compare Harris, 949 N.E.2d at 812 (offense required registration both before and
after 2007 amendments to Act; factor favored non-punitive treatment), with Wallace, 905 N.E.2d
at 381–82 (offense did not require registration at time committed; factor favored punitive treat-
ment). This factor weighs in favor of treating the effects of the Act as non-punitive.
5. Applicability Only to Criminal Behavior
The fifth factor for consideration is "whether the behavior to which [the statute] applies is
already a crime." Mendoza-Martinez, 372 U.S. at 168, 83 S. Ct. at 567, 9 L. Ed. 2d at 661. Alt-
4
See Indiana Code Section 35-42-4-6(3) (1994), the law in place at the time the defendant com-
mitted his crime:
A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under
twelve (12) years of age to engage in any fondling or touching intended to arouse or satisfy the
sexual desires of either the child or the older person commits child solicitation.
Id. (emphasis added).
5
It is important to note that under our state constitution the primary aim of punishment is rehabil-
itation, not retribution or deterrence. Ind. Const. art. 1, § 18.
6
hough the registration requirement is triggered exclusively by criminal behavior, the defendant's
offense, Child Solicitation, was already a registration-triggering offense at the time of commis-
sion. Our prior cases, in analogous circumstances, have weighed this factor in favor of treating
the enhanced registration period as non-punitive as applied. Harris, 949 N.E.2d at 812; Jensen,
905 N.E.2d at 393. We decline to depart from our precedent.
6. Advancing Non-Punitive Interest
Under the sixth factor, we determine "whether an alternative purpose to which [the stat-
ute] may rationally be connected is assignable for it." Mendoza-Martinez, 372 U.S. at 168–69,
83 S. Ct. at 567–68, 9 L. Ed. 2d at 661. Because the Act advances the legitimate regulatory pur-
pose of protecting the public from repeat sexual crime offenders, our cases have consistently
treated this factor as non-punitive. Harris, 949 N.E.2d at 812; Pollard, 908 N.E.2d at 1152–53;
Jensen, 905 N.E.2d at 393; Wallace, 905 N.E.2d at 383. Likewise, here, this factor weighs in
favor of treating the effects of the Act as non-punitive.
7. Excessiveness in Relation to Articulated Purpose
The seventh and final factor to be considered is "whether [the statute] appears excessive
in relation to the alternative purpose assigned." Mendoza-Martinez, 372 U.S. at 169, 83 S. Ct. at
568, 9 L. Ed. 2d at 661. Our previous cases have reached differing results based on the outcome
of this final factor.
In Wallace, we determined the seventh factor to be punitive for a defendant convicted
and released prior to the Act's 1994 passage. In so doing, we found it significant 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 registra-
tion or notification period, even on the clearest proof of rehabilitation." Wallace, 905 N.E.2d at
384. In Jensen, this Court found that the effects of the Act applied differently to Jensen than they
had to Wallace. We first noted that the 2006 amendments had changed nothing with regard to
7
Jensen's actual disclosure requirements; they had changed only the duration of the requirement.6
Jensen, 905 N.E.2d at 394. Second, Jensen, unlike Wallace, was able to petition the court after
ten years for reconsideration of his status as a sexually violent predator ("SVP"). Id. (citing Ind.
Code § 35-38-1-7.5(g) (2006)). We thus concluded that the seventh factor weighed in favor of
non-punitive treatment. Id.; see also Harris, 949 N.E.2d at 812–13 (finding seventh factor non-
punitive due to availability of individualized review of SVP status under Indiana Code Section
35-38-1-7.5(g)).
Here, unlike defendants Jensen and Harris, the defendant is not an SVP. Under Indiana
law, there are two avenues by which a sex offender may qualify as an SVP. First, a person can
qualify as an SVP by reason of a "mental abnormality or personality disorder that makes the in-
dividual likely to repeatedly commit a sex offense." Ind. Code § 35-38-1-7.5(a). This determi-
nation may be made by the court upon request by the prosecuting attorney. Ind. Code
§ 35-38-1-7.5(e) (providing that, if it grants the motion of the prosecuting attorney, the court
shall conduct a hearing at which two court-appointed psychologists or psychiatrists with exper-
tise in criminal behavior disorders evaluate the person and testify). Second, a person may be-
come an SVP by virtue of the offense committed. Ind. Code § 35-38-1-7.5(b). Here, the defend-
ant neither had a hearing to determine SVP status under subsection (a), nor committed a qualify-
ing offense under subsection (b). Rather, his lifetime registration requirement arose under Indi-
ana Code Section 11-8-8-19(c) due to the nature of his offense and the fact that, when commit-
ted, the defendant was at least eighteen years of age and the victim less than twelve years of age.
Thus, unlike Jensen and Harris, the defendant has no available channel through which he may
petition the trial court for review of his future dangerousness or complete rehabilitation. Com-
pare Ind. Code § 11-8-8-19(b) (providing that an SVP "is required to register for life"), and Ind.
6
Here, as in Jensen, the effect of the 2006 amendments was to lengthen the duration of the regis-
tration requirement without adding any additional restraints or burdens. However, the defendant's situa-
tion here differs from that of Jensen in that, at the time the defendant committed his crime in 1996, the
Act was less restrictive than it was at the time of Jensen's crime in 1998. In 1996, limited information
was available on offenders, the verification process was minimal, and the availability of information to
the public was limited. Amendments to the Act in 1998 imposed heavy restraints on offenders related to
notification requirements and verification of the disclosed information. Wallace, 905 N.E.2d at 375–76
(noting that the 1998 amendments require disclosure of an offender's fingerprints, photograph, address,
complete criminal history, and information concerning treatment of mental disorders, and that the 1998
amendments require local law enforcement to verify the offender's current residence by mailing a form to
the offender once per year, which the offender must return in person).
8
Code § 35-38-1-7.5(g) (allowing an SVP to "petition the court to consider whether the person
should no longer be considered a sexually violent predator"), with Ind. Code § 11-8-8-19(c)
(providing that a sex offender falling under the section [i.e. a non-SVP] "is required to register
for life"), and Ind. Code § 11-8-8-22(j) (allowing a non-SVP asserting a claim of ex post facto
punishment to petition the trial court to remove the designation of sex offender or to permit reg-
istration under less restrictive conditions). Future dangerousness or complete rehabilitation are
not grounds upon which a non-SVP could base such a petition.
The State contends that a distinction must be made between an SVP whose registration
requirement is based on his or her mental state and someone in the defendant's position whose
increased registration requirement is "based on facts admitted by him . . . that do not change with
the passage of time, or with rehabilitation." Appellee's Trans. Br. 6–7. As noted above, this sev-
enth Mendoza-Martinez factor requires that we consider whether the retroactive application ap-
pears excessive in relation to the alternative purpose assigned. The alternative purpose is pro-
tection of the public from repeat sexual crime offenders. The degree to which a prior offender
has been rehabilitated and does not present a risk to the public is thus integral to our evaluation
of whether an extension of the ten-year registration requirement is reasonable in relation to such
public protection. The availability of meaningful review of an offender's future dangerousness is
therefore germane to the determination of whether a statute's effects are excessive. Under the
procedures contained in Indiana Code Section 11-8-8-22, the sole avenue of relief available to a
non-SVP defendant, a trial court may, if it chooses, summarily dismiss an offender's petition
without ever setting a hearing.7 Ind. Code § 11-8-8-22(e)(1). Further, Indiana Code Section 11-
8-8-22 may be utilized only when there is an ameliorative change in federal or state law applica-
ble to an offender's prior conduct, Ind. Code § 11-8-8-22(b), (g), or when an offender files an ex
7
While it is true that an SVP's petition under Indiana Code Section 35-38-1-7.5(g) may also be
dismissed by the trial court without a hearing, id. ("A court may dismiss a petition filed under this subsec-
tion or conduct a hearing to determine if the person should no longer be considered a sexually violent
predator."), that section also expressly allows an SVP to repeatedly file such petition "not more than one
(1) time per year." Id. Thus, if an SVP's petition is dismissed by the trial court, the SVP has the oppor-
tunity to re-petition annually. Id. But if a non-SVP's petition is summarily dismissed by the trial court,
Indiana Code Section 11-8-8-22 offers no similar express opportunity to re-petition the trial court unless
or until there is a further ameliorative or punitive change in the law. The statute does not expressly permit
(nor does it deny) a non-SVP the opportunity to file repeated requests for review of a lifetime registration
requirement based on a claim of ex post facto punishment. We find this distinction to magnify the dispar-
ity as to the availability of meaningful review.
9
post facto claim, Ind. Code § 11-8-8-22(j). Neither of these avenues of relief relates to an of-
fender's future dangerousness in relation to the alternative purpose assigned, protection of the
public.
In the present case, the defendant, Gonzalez, as a non-SVP, may not predicate his request
for relief on the grounds that he has been rehabilitated and presents no risk to the public. And
the trial court has refused to grant a hearing despite his repeated attempts to seek the trial court's
review of his claim of ex post facto punishment. Thus, as to this defendant, we find that the ret-
roactive imposition of a lifetime registration requirement appears excessive in relation to the
purpose of protecting the public from repeat sexual crime offenders. For these reasons, we find
this seventh factor weighs slightly in favor of treating the enhanced registration period as puni-
tive rather than non-punitive.
Conclusion
We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant's
claim that, as applied to him, the retroactive imposition of a lifetime registration period violates
the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive
or non-punitive factors, but to consider them collectively to determine whether the application of
the challenged statute's effects upon the defendant are so punitive in nature as to constitute a
criminal penalty. See Wallace, 905 N.E.2d 378–79. The underlying conviction of the defendant
for Child Solicitation was for a D felony, the lowest class of felony under Indiana's criminal
code. Although the defendant was sentenced to the maximum term of three years, eighteen
months were suspended to probation. Because of the nature of the offense, the then-prevailing
statutes required him to register as a sex offender for ten years, which registration he completed.
As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply
to this defendant and his circumstances, we find that to apply the 2006 amendments so as to sub-
ject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the
Indiana Constitution.
We reverse the denial of the defendant's petition to remove the lifetime registration re-
10
quirement and remand for further proceedings consistent with this opinion.
David, Massa, Rush, JJ., concur.
Rucker, J. concurs in result.
11