Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any            Sep 11 2014, 9:59 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

  ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

  CARA SCHAEFER WIENEKE                          GREGORY F. ZOELLER
  Wieneke Law Office, LLC                        Attorney General of Indiana
  Plainfield, Indiana
                                                 KYLE HUNTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

  MICHAEL T. PAILLE,                             )
                                                 )
        Appellant/Defendant,                     )
                                                 )
               vs.                               )         No. 18A05-1404-CR-152
                                                 )
  STATE OF INDIANA,                              )
                                                 )
        Appellee/Plaintiff.                      )


          INTERLOCUTORY APPEAL FROM THE DELAWARE CIRCUIT COURT
                      The Honorable Linda Ralu Wolf, Judge
                         Cause No. 18C03-1308-FD-139


                                     September 11, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

  BRADFORD, Judge
                                   CASE SUMMARY

       In 2011, Appellant/Defendant Paille moved to Indiana, and by doing so became

subject to Indiana’s sex offender registration requirement by virtue of his presence on the

Florida sex offender registry. In 2013, Appellee/Plaintiff the State of Indiana (“the

State”) charged Paille with Class D felony failure to register as a sex offender and Class

A misdemeanor failure of a sex offender to possess identification. Paille filed motions

for removal from the sex offender registry and to dismiss the charges on the basis that he

was being subjected to unconstitutional, retroactive application of the statutes in question,

which motions the trial court denied. The trial court certified the matter for interlocutory

appeal, and this court accepted jurisdiction. Because we agree that the relevant statutes

are unconstitutional as applied to Paille, we reverse and remand with instructions.

                       FACTS AND PROCEDURAL HISTORY

       In 1991, Paille moved to Delaware County, Indiana from Florida. In 1993, for

acts committed in 1986, Paille was convicted in Florida of two counts of sexual battery

on a child and was sentenced to one year of incarceration and fifteen years of probation.

At some point, Paille returned to Delaware County. In 2009, due to criminal convictions

in Indiana, Paille was extradited to Florida for violating the terms of his Florida probation

and was incarcerated for approximately sixteen months. Upon Paille’s release in 2011,

he was required to register in Florida as a sex offender for at least twenty-five years.

Paille again returned to Delaware County but did not register as a sex offender in Indiana.

       On August 16, 2013, the State charged Paille with Class D felony failure to

register as a sex offender and Class A misdemeanor failure of a sex offender to possess

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identification. On November 21, 2013, Paille moved to dismiss all charges and filed a

petition for relief from retroactive application of statutes and removal from the sex

offender registry. On March 10, 2014, the trial court denied Paille’s motion to dismiss

and his petition for removal. On March 11, 2014, the trial court granted Paille’s motion

to certify the matter for interlocutory appeal and stayed the proceedings pending appeal

and this court subsequently accepted jurisdiction.

                            DISCUSSION AND DECISION

       Paille contends that application of Indiana’s Sex Offender Registry Act

(“INSORA”) is unconstitutional as applied to him.        INSORA created Indiana’s sex

offender registry and requires registration by “[a] sex or violent offender who resides in

Indiana.” Ind. Code § 11-8-8-7. A “sex offender,” as defined by INSORA, includes, “a

person who is required to register as a sex offender in any jurisdiction[.]” Ind. Code §

11-8-8-4.5(b)(1). There is no dispute that Paille is required to register as a sex offender

in Florida, so he is, at least, nominally required to register in Indiana. Paille argues,

however, that because he committed the underlying crimes before the enactment of

INSORA, requiring him to register in Indiana would violate our constitutional ban on ex

post facto laws.

              When the constitutionality of a statute is challenged, we begin with
       the presumption that the statute is constitutional. Brown v. State, 868
       N.E.2d 464, 467 (Ind. 2007). The party challenging the statute labors under
       the heavy burden of proving otherwise. Id. All reasonable doubt must be
       resolved in favor of the statute’s constitutionality. State v. Lombardo, 738
       N.E.2d 653, 655 (Ind. 2000).
              The Indiana Constitution provides that “[n]o ex post facto law …
       shall ever be passed.” Ind. Const. art. I, § 24. Among other things, the ex
       post facto prohibition forbids the state to enact any law which imposes a

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      punishment for an act which was not punishable at the time it was
      committed or imposes punishment additional to that which was already
      imposed. State v. Pollard, 908 N.E.2d 1145, 1148-49 (Ind. 2009). 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. Id. at 1149.

Burton v. State, 977 N.E.2d 1004, 1007 (Ind. Ct. App. 2012), trans. denied.

      In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), the Indiana Supreme Court held

that the application of INSORA to persons whose crimes were committed before

INSORA’s 1994 enactment was unconstitutional as an ex post facto law. See id. at 374-

75. 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. Here, just as in Wallace, the State

is seeking to impose punishment on Paille beyond which it could have imposed when he

committed his crimes. Because there is no meaningful distinction between the facts in

Wallace and those in the instant case, the result is the same, and we conclude that as

applied to Paille, INSORA violates our prohibition on ex post facto laws.

      The State argues that the event triggering Paille’s requirement to register as a sex

offender in Indiana was not when he committed the underlying crimes, but when he

returned to Indiana in 2011 after being required to register as a sex offender in Florida.

The holding in Wallace does not permit us to carve out such an exception, even if we

were so inclined. Pursuant to Wallace, Paille committed his crimes before INSORA was

enacted, and that is the end of our inquiry. Indeed, this court recently rejected this very


                                            4
argument in Burton, where the State argued that the defendant’s requirement to register in

Illinois subjected him to INSORA’s requirement to register in Indiana, despite being

convicted of his crime in 1987.      Burton, 977 N.E.2d at 1009.        The Burton court

concluded, and we agree, that “[o]f importance in determining whether [IN]SORA

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 [IN]SORA.” Id.

       In summary, we conclude that application of INSORA to Paille would be a

violation of Indiana’s prohibition on ex post facto laws. We therefore reverse and

remand with instructions to vacate the criminal charges against Paille and to grant his

motion for removal from the sex offender registry.

       The judgment of the trial court is reversed, and we remand with instructions.

BARNES, J., and BROWN, J., concur.




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