Rex S. Lovett v. State of Indiana

Dec 11 2015, 8:43 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy D. Griner Gregory F. Zoeller Mishawaka, Indiana Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rex S. Lovett, December 11, 2015 Appellant-Petitioner, Court of Appeals Case No. 20A04-1506-MI-591 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Respondent Judge Trial Court Cause No. 20D03-1502-MI-41

Bailey, Judge. Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 1 of 11

Case Summary [1] Rex Lovett (“Lovett”) filed a petition for relief from sex offender registration

requirements under Indiana’s Sex Offender Registration Act (“SORA”). The

trial court denied his petition. Lovett appeals, arguing that the registration

requirement is unconstitutional as applied to him because it violates the ex post

facto clause of the Indiana Constitution. Because Lovett was, at the time of and

as a result of his original offense, subject to sex offender reporting requirements

in another state, we conclude that an ongoing requirement to register in Indiana

is not an additional, ex post facto punishment under the Indiana Constitution. [2] We affirm.

Facts and Procedural History [3] On August 28, 1991, Lovett was convicted of rape of a child and child

molestation in the State of Washington. After serving his sentence, Lovett was

released from incarceration on May 13, 2003. Under Washington law, Lovett

is required to register as a sex offender indefinitely. [4] Upon his release from incarceration in May 2003, Lovett moved to Indiana. In

addition to being required to register as a sex offender, in 2007, Lovett was

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 2 of 11

required to register as a serious violent predator and comply with more rigorous

restrictions after the General Assembly passed amendments to SORA.1 [5] On February 11, 2015, Lovett filed a petition for relief from the sex offender

registration requirements. Following a hearing, the trial court denied Lovett’s

petition. Lovett now appeals.

Discussion and Decision [6] In this appeal, Lovett contends that the trial court erred when it denied his

petition because the requirements of Indiana’s SORA are ex post facto

punishments as applied to him. [7] Article 1, section 24 of the Indiana Constitution provides that “[n]o ex post

facto law…shall ever be passed.” Among other things,

the ex post facto prohibition forbids the state to enact any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes punishment additional to that which was already imposed. 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 the type of conduct that will give rise to criminal penalties. [8] Burton v. State, 977 N.E.2d 1004, 1007 (Ind. Ct. App. 2012) (emphasis added)

(internal citations omitted), trans. denied.

1 Ind. Code ch. 11-8-8.

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 3 of 11 [9] In a line of cases beginning with the Indiana Supreme Court’s decision in

Wallace v. State, 905 N.E.2d 371 (Ind. 2009), Indiana courts have addressed a

variety of ex post facto challenges to the sex offender registration requirements

under SORA. In Wallace, the Indiana Supreme Court was presented with an

appeal by an individual who had been tried, convicted, and sentenced for sex

offenses in the State of Indiana before Indiana’s SORA had been enacted into

law. Id. at 373. In those circumstances, the Wallace Court held that registration

requirements of SORA were unconstitutional ex post facto punishments as

applied to Wallace, concluding that as to Wallace, SORA “impose[d] burdens

that have the effect of adding punishment beyond that which could have been

imposed when his crime was committed.” Id. at 384. [10] In Lovett’s case, the applicable facts are as follows. The State of Washington

enacted its own version of SORA, which had already taken effect before Lovett

was convicted of his crimes. Thus, Lovett was required upon release from

imprisonment to register himself with authorities in the State of Washington,

and this requirement was imposed immediately upon Lovett’s conviction.

Rather than remain in Washington after his release from imprisonment in 2003,

Lovett traveled to and settled in Indiana. When Lovett arrived in Indiana, our

state’s SORA had been enacted and was in effect. [11] Nevertheless, Lovett argues that because his conviction date precedes the

adoption of Indiana’s SORA, the imposition of a lifetime registration

requirement in Indiana is an ex post facto punishment as to him. He argues that

Wallace, as well as a line of cases from this Court, mandate this result because,

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 4 of 11

he says, the date of an individual’s conviction has been deemed determinative

for Indiana ex post facto analysis in Hough v. State, 978 N.E.2d 505 (Ind. Ct. App.

2012), trans. denied; Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012), trans.

denied; Burton, supra. An examination of each of these cases shows that they are

distinguishable from the case at bar, and that none of them impose the rule

Lovett’s argument suggests: that a conviction date for a crime committed

outside Indiana and prior to the enactment of Indiana’s SORA is by itself

dispositive as to Indiana’s ex post facto analysis. [12] Burton, in particular, is instructive. Burton had been convicted of a sex offense

in Illinois in 1987 and was subsequently required by that state to register in

1996. Burton, 977 N.E.2d at 1006. He failed to do so, and was convicted for

registration violations in 2003 and 2007; these offenses imposed upon Burton

an ongoing registration requirement. Id. at 1008. The Burton Court centered its

analysis in part upon the date of Burton’s conviction for his initial sex offense in

Illinois, which predated both Illinois’s and Indiana’s SORA enactments by

several years. The Burton Court rejected the State’s argument that Burton’s

ongoing registration requirement in Illinois as a result of his 2003 and 2007

convictions prevented Indiana registration requirements from being an ex post

facto punishment as to Burton. Id. at 1009. [13] In reaching its decision, the Burton Court acknowledged that its holding as to

the ex post facto nature of registration requirements might properly be limited to

“those offenders who committed crimes in states which had no registration

requirements at the time of the offenses.” Id. at 1010. As the Burton Court Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 5 of 11

observed, “the date of the commission of the crime and the law in place at that

time is relevant to the ex post facto analysis.” Id. at 1009. This accords with

the statement of our supreme court in Wallace that an ex post facto law is

prohibited “because it imposes burdens that have the effect of adding

punishment beyond that which could have been imposed when [the] crime was

committed.” 905 N.E.2d at 384. [14] A review of the Indiana cases at issue here demonstrates conformance to the

Burton Court’s interpretation of the requirements of Wallace. In Hough, Hough

had been convicted of a sex offense in 1993 in Pennsylvania, which did not

adopt an equivalent to SORA until 1996. 978 N.E.2d at 505. Thus, upon

conviction, Hough was not required to register in Pennsylvania, and this Court

accordingly concluded that a requirement to register as a sex offender in

Indiana was an unconstitutional ex post facto punishment. Id. at 506-07. [15] In Andrews, Andrews had been convicted of a sex offense in Massachusetts in

1984, and the Massachusetts sex offender registry law did not operate in a

manner identical to that of Indiana. 978 N.E.2d at 495. When he moved to

Indiana in 1993, this state’s SORA had not yet been enacted; when he again

moved to Indiana in 1997, SORA did not require registration of individuals

who had been convicted of sex offenses outside of Indiana. Id. Based upon the

date of Andrews’s conviction, the different registration regime in Massachusetts

under which Andrews had never been required to register, and the lack of an

independent federal requirement that Andrews register as a sex offender, this

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 6 of 11

Court held that Indiana’s SORA requirements were an unconstitutional ex post

facto punishment as to Andrews. Id. at 498, 502. [16] In each of these cases, then, this Court has held as an ex post facto punishment a

sex offender registration requirement where the individual’s conviction came

before the enactment of Indiana’s SORA. In each case, the analysis has turned

on more than simply the date of an individual’s conviction, because each of

these cases was unlike Wallace, which considered only the effect of an Indiana

conviction prior to the enactment of Indiana’s SORA. In the other cases, there

have been two crucial points: the date of the individuals’ conviction, and the

use of Indiana’s ex post facto doctrine to evaluate the consequences of a

conviction with respect to another state’s SORA enactment. In Burton and

Hough, the states in which those individuals were convicted did not have SORA

enactments prior to the individuals’ underlying convictions. In Andrews,

Massachusetts’s SORA enactment did not impose registration as a matter of

law without a hearing, statutory procedures which did not exist in Indiana and

under which Andrews was never required to register in Massachusetts. [17] Here, unlike these cases, Lovett was convicted of a sex offense in another state

and was required to register indefinitely in that state as of the time of his

conviction. The date of his conviction relative to Indiana law is not, as the

Burton Court observed, the sole determinant of whether a requirement to

register as a sex offender in Indiana constitutes an ex post facto punishment. The

question is, instead, whether such a requirement would impose additional

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 7 of 11

punishment for Lovett’s offenses beyond those burdens already placed upon

him at the time of his conviction. [18] We conclude that the registration requirement does not do so, and thus

Indiana’s SORA is not an ex post facto punishment as to Lovett.2 Lovett was

subject to registration requirements in the State of Washington from the date of

his conviction; it is not adding to his punishment to require continued

registration in Indiana. And he should not be allowed to evade these

requirements simply by relocating to Indiana, when the sole basis for that

evasion would be a conviction date for a crime committed outside Indiana. We

therefore affirm the judgment of the trial court. [19] Affirmed. [20] Mathias, J., concurs. [21] Baker, J., dissents with separate opinion.

2 This Court has previously concluded in dicta that when an individual has been convicted of an offense in another state and the individual was required as of the time of that offense to register as a sex offender in that state, there is no ex post facto violation associated with Indiana’s later-enacted registration requirement. In Herron v. State, 918 N.E.2d 682 (Ind. Ct. App. 2009), Herron had been convicted in 1984 as a sex offender in Arizona and, as of the time of his offense, was required to register for life. Id. at 684. After his release from prison, Herron registered as a sex offender in Arizona. He later moved to Indiana, and Indiana authorities requested that Herron register in 2008. Herron filed a petition seeking to avoid registration requirements under Indiana’s SORA, contending that this requirements was an ex post facto punishment. The trial court denied the petition, and this Court affirmed the trial court’s judgment, finding that, waiver notwithstanding, because Herron “was required by Arizona to register as a sex offender when he committed his offense,” he was not subject to an ex post facto punishment by the later-enacted Indiana registration requirements. Id. at 684 (emphasis added).

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 8 of 11

IN THE COURT OF APPEALS OF INDIANA

Rex S. Lovett, Court of Appeals Case No. 20A04-1506-MI-591 Appellant-Petitioner,

v.

State of Indiana, Appellee-Respondent

Baker, Judge, dissenting. [22] I respectfully dissent. In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), our

Supreme Court held that mandatory sex offender registration is punitive, and

that application of SORA to an offender who had committed his offense prior

to the enactment of SORA violated the ex post facto prohibition of the Indiana

Constitution. [23] On at least three occasions since Wallace, this Court has had occasion to

consider the application of Wallace to individuals who were convicted of sex

offenses in other states before SORA was enacted. In these cases, the defendant

later moved to Indiana and argued that application of SORA as applied to him

was unconstitutional. On each of these three occasions, this Court found that

application of SORA was, in fact, unconstitutional under the ex post facto

clause when applied to an individual who had committed his offense prior to

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 9 of 11

SORA’s enactment. State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012)

(holding that defendant, who had been convicted of rape in Pennsylvania prior

to SORA enactment, could not be required to register as sex offender in

Indiana), trans. denied; Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012)

(holding that defendant, who had been convicted of sex offenses in

Massachusetts prior to SORA enactment, could not be required to register as

sex offender in Indiana), trans. denied; Burton v. State, 977 N.E.2d 1004, 1010

(Ind. Ct. App. 2012) (holding that defendant, who had been convicted of sex

offenses in Illinois prior to SORA enactment, could not be required to register

as sex offender in Indiana), trans. denied. [24] I acknowledge that in this case, SORA imposed no additional burdens on

Lovett because he was already required to register in Washington. That was

also the case in Hough and in Burton, however. Hough, 978 N.E.2d at 505-06

(had defendant remained in Pennsylvania, he would have been required to

register; the State did not require him to register only because he planned to

relocate immediately to Indiana upon his release); Burton, 977 N.E.2d at 1006-

07 (defendant was required to register in Illinois and had been convicted twice

in that State of registration violations). [25] I see no meaningful distinction between those cases and the instant case. In

neither Wallace, nor Hough, nor Burton, nor Andrews, did the court explicitly

include as part of its analysis the date of enactment of the SORA equivalent in

the state of conviction. In my view, the majority engrafts this requirement onto

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 10 of 11

the prior cases, creating a second prong of a test that does not otherwise exist.

Consequently, I part ways with the majority’s analysis of the relevant cases. [26] In this case, Lovett’s Washington convictions occurred in 1991. SORA, which

requires sex offenders to register upon release from jail, was enacted three years

later, in 1994. In 2001, the legislature amended SORA to require those with

out-of-state convictions to register in Indiana upon residence in this State. [27] The State urges us to focus on the year in which Lovett moved to Indiana—

2003. According to the State, because Lovett knew when he moved to Indiana

that he would be required to register as a sex offender under SORA, there is no

violation of the ex post facto clause. [28] While I see the logic in the State’s position on this issue, as well as the

majority’s decision, the case law could not be clearer. Our Supreme Court, plus

three panels of this Court, have plainly held that the date of primary importance

is the date of the original conviction. Notwithstanding the state of the law at

the time Lovett moved to Indiana, he is a resident of this State and “is entitled

to the protections afforded to him by the Indiana Constitution. Therefore, even

though he would be required to register as a sex offender under [Washington’s]

laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Lovett was

convicted of a sex offense before Indiana enacted SORA. Therefore, I believe

that requiring him to register as a sex offender would violate Indiana’s

constitutional prohibition against ex post facto laws; I would affirm the trial

court’s judgment.

Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015 Page 11 of 11