ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Payne Gregory F. Zoeller
Ryan & Payne Attorney General of Indiana
Marion, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 06 2010, 3:28 pm
______________________________________________________________________________
CLERK
In the of the supreme court,
court of appeals and
tax court
Indiana Supreme Court
_________________________________
No. 27S02-1001-CR-5
GARY M. HEVNER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Grant Superior Court, No. 27D02-0604-FD-72
The Honorable Randall L. Johnson, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 27A02-0808-CR-717
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January 6, 2010
Rucker, Justice.
We consider a claim that the Indiana Sex Offender Registration Act (“the Act”)
constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the
Indiana Constitution because it requires the defendant to register as a sex offender, when the Act
contained no such requirement at the time the defendant committed the triggering offense.
Facts and Procedural History
Between October and November of 2005, Indiana resident Gary M. Hevner downloaded
on his computer a number of sexually graphic files depicting children. As a consequence, on
April 28, 2006, the State charged Hevner with possession of child pornography as a Class D
felony. See Ind. Code § 35-42-4-4. After a three day jury trial that began June 23, 2008, he was
convicted as charged. This was Hevner‟s first offense under the statute. After a hearing on July
21, 2008, the trial court sentenced Hevner to a three-year term which was suspended to time
served and placed Hevner on probation for two and one-half years. Among other things the trial
court ordered Hevner to register as a sex offender, directed him to undergo a “sex offender
assessment and follow recommendations[,]” and declared that Hevner was “subject to the Rules
for Sex Offenders as approved by the Grant County Circuit and Superior Courts.” Br. of
Appellant at 5.
At the time Hevner committed his crime, a person convicted for the first time of
possessing child pornography was not considered a sex offender and thus was not required to
register as such. See Ind. Code § 5-2-12-4(a)(13) (2005) (“As used in this chapter, „offender‟
means a person convicted of . . . [p]ossession of child pornography [ ] if the person has a prior
unrelated conviction for possession of child pornography. . . .”). While Hevner was awaiting
trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind.
Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before
Hevner was convicted but after he was charged – the legislature amended the statute to require
anyone convicted of possession of child pornography to register as a sex offender regardless of
whether the person had accumulated a prior unrelated conviction. See Ind. Code § 11-8-8-
4.5(a)(13) (2007) (“. . . as used in this chapter, „sex offender‟ means a person convicted of . . .
[p]ossession of child pornography (IC 35-42-4-4(c)).”); see also Ind. Code § 11-8-8-7 (providing
among other things, “. . . the following persons must register under this chapter: . . . [a] sex or
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violent offender who resides in Indiana . . . .” or “[a] sex or violent offender who works or
carries on a vocation or intends to work or carry on a vocation full-time or part-time” for a
specified period). Thus, at the time of his conviction, Hevner was required to register as a sex
offender.
Hevner appealed contending: (1) the State violated an order in limine during closing
arguments, (2) the evidence was insufficient to sustain the conviction, and (3) the registration
requirement violated the ex post facto prohibitions of both the Indiana and federal constitutions.
The Court of Appeals affirmed the judgment of the trial court in an unpublished memorandum
decision. Hevner v. State, No. 27A02-0808-CR-717 (Ind. Ct. App. Mar. 31, 2009). We grant
transfer to address Hevner‟s ex post facto claim. In all other respects we summarily affirm the
Court of Appeals‟ decision.
Discussion
The United States Constitution provides that “[n]o State shall . . . pass any . . . ex post
facto Law.” U.S. Const. art. I, § 10. The Indiana Constitution provides that “[n]o ex post facto
law . . . shall ever be passed.” Ind. Const. art. I, § 24. Among other things, “[t]he ex post facto
prohibition forbids the Congress and the States to enact any law „which imposes a punishment
for an act which was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed.‟” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)). 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. Armstrong v. State, 848
N.E.2d 1088, 1093 (Ind. 2006).
Hevner contends that as applied to him the Act violates both the Indiana and federal
constitutional prohibitions against ex post facto laws. Recently, in Wallace v. State, we noted
that the United States Supreme Court concluded that Alaska‟s Sex Offender Registration Act,
which is very similar to Indiana‟s Act, did not violate the Ex Post Facto Clause of the United
States Constitution. Wallace, 905 N.E.2d 371, 378 (Ind. 2009). We thus proceeded to evaluate
Wallace‟s claim under the Indiana Constitution albeit adopting the same analytical framework
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the Supreme Court employed to evaluate ex post facto claims under the federal constitution. Id.
at 378.
In evaluating ex post facto claims under the Indiana Constitution we apply what is
commonly referred to as the “intent-effects” test. Id. Under this test the court must first
determine whether the legislature meant the statute to establish civil proceedings. Id. at 379. If
the intention of the legislature was to impose punishment, then that ends the inquiry, because
punishment results. Id. If, however the court concludes the legislature intended a non-punitive
regulatory scheme, then the court must further examine whether the statutory scheme is so
punitive in effect as to negate that intention thereby transforming what was intended as a civil
regulatory scheme into a criminal penalty. Id.
We assume without deciding that when the Legislature amended Ind. Code § 11-8-8-4.5
(2007) requiring first time possessors of child pornography to register as sex offenders, it
intended a civil regulatory scheme. The question is whether the registration requirement is
punitive in effect. As declared in Wallace we examine this issue by applying a seven-factor test:
“[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 finding of
scienter, [4] whether its operation will promote the traditional aims of punishment-retribution
and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an
alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it
appears excessive in relation to the alternative purpose assigned.” Wallace, 905 N.E.2d at 379
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (alterations in original).
No one factor is determinative. “[O]ur task is not simply to count the factors on each side, but to
weigh them.” Wallace, 905 N.E.2d at 379 (quoting State v. Noble, 829 P.2d 1217, 1224 (Ariz.
1992)).
Applying the test we concluded that only factor number six – advancing a non-punitive
interest – favored treating the registration requirement as non-punitive. “The remaining factors,
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particularly the factor of excessiveness, point[ed] in the other direction.” Wallace, 905 N.E.2d at
384. This conclusion is equally applicable here.1
As a general rule, a court must sentence a defendant under the statute in effect on the date
the defendant committed the offense. Biddinger v. State, 868 N.E.2d 407, 411 n.6 (Ind. 2007).2
Between October and November of 2005, when Hevner committed the crime of possession of
child pornography, only persons convicted of a prior possession offense were required to register
as sex offenders under the Act. By the time of Hevner‟s trial and sentencing the Legislature had
amended the Act making it applicable to first time offenders. As applied to Hevner 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 the crime was committed.
In a related argument Hevner also complains that as a condition of probation the trial
court entered an order prohibiting him “from living within one thousand (1,000) feet of a school .
. . .” Pet. to Trans. at 7. According to Hevner, he “would not have been subject to that
requirement but for the fact he is registered as a sex offender.” Id.3 We first observe the record
is not entirely clear that the trial court imposed this restriction as a condition of probation.
Although at the sentencing hearing counsel for Hevner made some reference to a 1,000 feet
restriction, see e.g., Tr. at 310, when the trial court entered its written order of sentence no such
restriction was included. See Br. of Appellant at 6-7. In any event assuming the trial court
1
We observe that the Court of Appeals‟ memorandum decision in this case was issued one month before
our opinion in Wallace. In its Response To Petition To Transfer, the State quotes Wallace extensively
and concedes that at least four factors favor treating the effect of the Act as punitive when applied to
Hevner: whether the sanction involves an affirmative disability or restraint, whether it has historically
been regarded as a punishment, whether it comes into play only on a finding of scienter, and whether the
behavior to which it applies is already a crime. See Resp. to Pet. to Trans. at 5-7. We appreciate the
State‟s candor.
2
There are exceptions to this rule; neither of which is applicable here. See Palmer v. State, 679 N.E.2d
887, 892 (Ind. 1997) (concerning ameliorative statutes, which are statutes that decrease the maximum
penalty); Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002) (discussing remedial statutes, and noting
“remedial statutes will be applied retroactively to carry out their legislative purposes unless to do so
violates a vested right or constitutional guarant[ee].”).
3
Ind. Code § 35-38-2-2.2 provides in relevant part, “As a condition of probation for a sex offender. . . the
court shall: . . . (2) prohibit the sex offender from residing within one thousand (1,000) feet of school
property . . . .”
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imposed on Hevner a 1,000 feet residency restriction, on this record we cannot conclude the trial
court erred. We have long recognized that a trial judge enjoys wide latitude in fashioning the
terms of a defendant‟s probation. Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999) (citing State ex
rel. Abel v. Vigo Cir. Ct., 462 N.E.2d 61, 63 (Ind. 1984)); see also Ind. Code § 35-38-2-
2.3(a)(14) (providing that the court may impose any term of probation “reasonably related to the
person‟s rehabilitation.”). These provisions may include preventing a defendant convicted of a
sex offense from residing in certain areas. Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct.
App. 1999).
Because of the ex post facto provisions of the Indiana Constitution, the trial court may
not order Hevner to register as a sex offender. And for the same reasons we discussed in State v.
Pollard, Hevner is not subject to prosecution for violation of Ind. Code § 35-42-4-11, the
residency restriction statute. Pollard, 908 N.E.2d 1145, 1154 (Ind. 2009) (noting that the
defendant was charged and convicted for a crime qualifying him as an offender against children
before the residency restriction statute was enacted and thus as applied violated the prohibition of
the ex post facto laws contained in the Indiana Constitution). However, having been convicted
of possession of child pornography, a sex offense at the time Hevner committed his crime, he is
subject to conditions of probation that “have a reasonable relationship to the treatment of the
accused and the protection of the public.” Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App.
2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000
feet of school property is an unreasonable condition.
Conclusion
We reverse that portion of the trial court‟s sentencing order directing Hevner to register
as a sex offender. This cause is remanded for further proceedings.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
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