MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                Jul 24 2015, 10:01 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
John Emry                                                 Gregory F. Zoeller
Franklin, Indiana                                         Attorney General of Indiana

                                                          Graham T. Youngs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Eugene Million,                                   July 24, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          41A05-1411-MI-530
        v.                                                Appeal from the Johnson Superior
                                                          Court;
                                                          The Honorable K. Mark Loyd,
Sheriff of Johnson County,                                Judge;
Indiana; Indiana Department of                            The Honorable Richard Tandy,
Correction; Indiana State Police;                         Magistrate;
                                                          41D03-1404-MI-73
and State of Indiana,
Appellees-Respondents.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015            Page 1 of 7
[1]   Keith Eugene Million appeals the denial of his request to be released from the

      requirement that he register as a sex offender in Indiana. We reverse.


                                  Facts and Procedural History
[2]   On January 1, 1989, Million pled guilty in Florida to lewd and lascivious

      conduct with a minor under the age of fourteen. On June 15, 1990, he was

      sentenced to four years and six months imprisonment. He served fourteen

      months incarcerated and was released to parole for six years.


[3]   On September 14, 2004, Million moved to Indiana. On April 7, 2005, he

      registered with the Johnson County Sheriff’s Office as a sex offender. On April

      22, 2014, Million filed a “Verified Petition to Be Released From Sex Offender

      Registration Requirement,” (App. at 6), asking for relief from the burden of

      registering as a sex offender in Indiana. He filed an amended petition on May

      19, and the trial court held a hearing June 26.


[4]   On August 7, 2014, the trial court denied Million’s petition. Million filed a

      motion to correct error, which the trial court denied.


                                     Discussion and Decision
[5]   Million requested relief under Ind. Code § 11-8-8-22, which allows a sex

      offender to petition the court to remove the requirement that he register as a sex

      offender. We review the trial court’s denial for an abuse of discretion. Lucas v.

      McDonald, 954 N.E.2d 996, 998 (Ind. Ct. App. 2011). An abuse of discretion

      occurs when a decision is clearly against the logic and effect of the facts and


      Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015   Page 2 of 7
      circumstances supporting the petition for relief. Id. The burden is on the

      movant to demonstrate that relief is necessary and just. Id.


[6]   Million argues the trial court abused its discretion when it denied his petition

      for relief because the Indiana Sex Offender Registry Act (INSORA) as applied

      to him violates the ex post facto prohibition of the Indiana constitution. 1 When

      the constitutionality of a statute is challenged, we begin with the presumption

      the statute is constitutional. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007).

      The party challenging the constitutionality of a statute has the heavy burden of

      rebutting that presumption. 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).


[7]   The Indiana Constitution provides “[n]o ex post facto law . . . shall ever be

      passed.” Ind. Const. art. 1, § 24. 2 “The ex post facto clause 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.’” Hevner v. State, 919 N.E.2d 109, 111 (Ind.




      1
        Million filed a Motion to Correct Error, but he does not argue the trial court erred when it denied it. We
      review the denial of a motion to correct error for abuse of discretion, and to determine whether the court
      erred, we consider the propriety of the court’s decision on the underlying order, here the denial of his petition
      for relief. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (review of motion to correct
      error includes review of underlying order).
      2
        Million does not challenge INSORA under the United States Constitution; nevertheless, our Indiana
      Supreme Court noted an ex post facto claim under the Indiana Constitution should be evaluated using “the
      same analytical framework the Supreme Court [of the United States] employed to evaluate ex post facto claims
      under the federal constitution.” Hevner, 919 N.E.2d 109, 111 (Ind. 2010).

      Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015                  Page 3 of 7
      2010) (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981)). “The underlying

      purpose of the Ex Post Facto Clause is to give effect to the fundamental principle

      that persons have the right to fair warning of that conduct which will give rise

      to criminal penalties.” Id.


[8]   In 1994, Indiana enacted INSORA, codified in Indiana Code chapter 11-8-8,

      which requires certain sex offenders to register specified information with the

      State. Two parts of INSORA require Indiana residents who committed sexual

      offenses outside of Indiana to register as sex offenders in Indiana. First, in

      2001, Indiana extended INSORA to require those convicted in another

      jurisdiction of a crime “substantially similar” 3 to a sex crime in Indiana to

      register in Indiana as well. Ind. Code § 5-2-12-4 (2001). 4 Second, under Ind.

      Code § 11-8-8-19(f), a person who is “required to register as a sex or violent

      offender in any jurisdiction” is required to register as a sex offender in Indiana

      for the time required by the other jurisdiction or the time required by INSORA,

      “whichever is longer.” Id.


                                         “Substantially Similar” Clause

[9]   Million argues he should not have to register under the “substantially similar”

      clause because the facts in his case are like those in Wallace v. State, 905 N.E.2d

      371 (Ind. 2009), reh’g denied. Wallace was charged with and convicted of Class




      3
        Million does not argue the crime of which he was convicted in Florida is not “substantially similar” to a
      crime in Indiana for which one would be required to register under INSORA.
      4
          This section is now codified as Ind. Code §§ 11-8-8-4.5(a)(22) and 11-8-8-5(A)(22).


      Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015                Page 4 of 7
       C felony child molesting in Indiana in 1989. Wallace completed his sentence,

       including probation, in 1992, before INSORA went into effect. In 2001,

       Indiana amended INSORA to require certain sex offenders to register

       regardless of their conviction date. In 2003, Wallace’s ex-wife reported to

       police that he had not properly registered as a sex offender, and he was arrested

       for Class D felony failing to register as a sex offender.


[10]   Wallace filed a motion to dismiss the charge against him, which was denied.

       We accepted the issue on interlocutory appeal. Our Indiana Supreme Court

       held INSORA violated ex post facto laws as applied to Wallace because he “was

       charged, convicted, and served the sentence for his crime before the statutes . . .

       were enacted.” Id. at 384. Even though Wallace was convicted of a sex offense

       in Indiana, our court has extended the holding in Wallace to defendants who

       committed sex offenses in other states and then relocated to Indiana in cases

       such as Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), and State v.

       Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012), trans. denied.


[11]   In Burton, we held Burton, who was convicted of a sex offense in Illinois in

       1987, was not required to register as a sex offender in Indiana after he moved

       here around 2009 because “it is the date of the commission of the crime and the

       law in place at the time that is relevant to the ex post facto analysis.” 977 N.E.2d

       at 1009. In Hough, we held Hough, who had been convicted of a sex offense in

       Pennsylvania in 1993, could not be required to register as a sex offender in

       Indiana despite the fact Hough might have been required to register as a sex

       offender in Pennsylvania had he remained in that state “[b]ecause he was

       Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015   Page 5 of 7
       convicted of a sex offense before Indiana enacted INSORA.” 978 N.E.2d at

       510.


[12]   The same is true in the instant case: Million committed his crime in 1989,

       before Indiana enacted INSORA in 1994. Therefore, like in Burton and Hough,

       the imposition of a requirement that he register as a sex offender in Indiana

       violates our constitutional prohibitions against ex post facto laws.


                               Required to Register in Another Jurisdiction

[13]   Under Ind. Code § 11-8-8-19(f), an Indiana resident who is “required to register

       as a sex or violent offender in any jurisdiction” is required to register as a sex

       offender in Indiana for the time required by the other jurisdiction or the time

       required by INSORA, “whichever is longer.” Id. Million was not required to

       register as a sex offender in Florida. Therefore, he is not required to register as

       a sex offender in Indiana under Ind. Code § 11-8-8-19(f). See Andrews v. State,

       978 N.E.2d 494 (Ind. Ct. App. 2012) (Andrews, who was convicted of multiple

       sex offenses in Massachusetts in 1984, was not required to register as a sex

       offender after moving to Indiana because he was not required to register as a

       sex offender under Massachusetts law). 5




       5
         The State relies on our recent holding in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g denied,
       however, Tyson is easily distinguishable. Tyson committed a sexual offense in Texas in 2002. Under Texas
       law, Tyson was required to register as a sex offender until 2014. When Tyson moved to Indiana in 2009, he
       did not register as a sex offender and was charged with Class D felony failure to register. Tyson moved to
       dismiss, and we affirmed based on the plain language of Ind. Code § 11-8-8-19(f). As Million had no
       requirement to register in Florida, Tyson is inapposite.

       Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015                 Page 6 of 7
                                                 Conclusion
[14]   The trial court abused its discretion when it denied Million’s request to be

       relieved of the burden of registering as a sex offender in Indiana. Accordingly,

       we reverse.


[15]   Reversed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1411-MI-530 | July 24, 2015   Page 7 of 7
