                                                                           FILED
                                                                   Jul 01 2016, 8:24 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                            Gregory F. Zoeller
Brownsburg, Indiana                                        Attorney General

                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Richard J. McVey,                                          July 1, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           73A04-1601-CR-12
        v.                                                 Appeal from the Shelby Circuit
                                                           Court
State of Indiana,                                          The Honorable Charles D.
Appellee-Plaintiff.                                        O’Connor, Judge
                                                           Trial Court Cause No.
                                                           73C01-0206-FA-5



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                           Page 1 of 14
                                            Case Summary
[1]   Richard J. McVey was convicted of Class C felony child molesting for

      molesting his half-sister in 2001. After the molestation, the legislature amended

      the Indiana Sex Offender Registration Act to require lifetime registration for

      offenders like McVey, as opposed to the previous requirement of ten years. It

      also enacted the unlawful-entry statute, which makes it a crime for a person

      who is required to register as a sex offender and who is convicted of child

      molesting to enter school property. McVey contends that both enactments, as

      applied to him, violate the Indiana Constitution’s prohibition against ex post

      facto laws. We agree with McVey as to the lifetime-registration requirement

      but not as to the unlawful-entry statute. We therefore affirm in part and reverse

      in part.



                             Facts and Procedural History
[2]   Effective July 1, 2001, a defendant eighteen years or older who is convicted of

      molesting a child less than twelve years old is required to register as a sex

      offender for life. See P.L. 238-2001, § 13; Ind. Code Ann. § 5-2-12-13(c)

      (LexisNexis 2001), now codified at Ind. Code Ann. § 11-8-8-19(c) (West Supp.

      2015). Before July 1, 2001, a defendant convicted of child molesting was

      required to register for only ten years, regardless of the ages of the defendant




      Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016      Page 2 of 14
      and the victim. See Gonzalez v. State, 980 N.E.2d 312, 315 (Ind. 2013); see also

      Ind. Code Ann. § 5-2-12-13 (LexisNexis 1997).1

[3]   In addition, effective July 1, 2015, a person who is required to register as a sex

      offender and who is either found to be a sexually violent predator or convicted

      of, among other child crimes, child molesting commits unlawful entry by a

      serious sex offender, a Level 6 felony, when he “knowingly or intentionally

      enters school property.” Ind. Code Ann. § 35-42-4-14(b) (West Supp. 2015).


[4]   In June 2002, the State charged McVey with five counts for molesting his half-

      sister, J.H.: Count I: Class B felony child molesting; Count II: Class A felony

      child molesting; Counts III-IV: Class C felony child molesting; and Count V:

      Class B felony incest. The charges were based on events that occurred between

      October 1998 and August 2001, which is a time period that straddles the

      effective date of the amendment requiring lifetime registration. The jury found

      McVey guilty of all five counts. At McVey’s December 2003 sentencing

      hearing, the trial court merged Count IV with Count III and Count V with

      Count I and entered judgment of conviction for Counts I, II, and III only. The

      court sentenced McVey to concurrent terms of ten years for Count I, with six

      years executed and four years suspended; thirty years for Count II, with twenty




      1
        The State, relying on Gonzalez, says that the amendment took effect in 2006. Although the statute was
      recodified in 2006 from Title 5 to Title 11, the statute was actually amended in 2001 to provide that a
      defendant eighteen years or older who is convicted of molesting a child less than twelve years old is required
      to register as a sex offender for life. See P.L. 238-2001, § 13.

      Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                              Page 3 of 14
      years executed and ten years suspended; and four years for Count III, with two

      years executed and two years suspended.

[5]   McVey was released from the Indiana Department of Correction on July 15,

      2011, at which time he started probation and registered as a sex offender for

      life. See Appellant’s P-C App. p. 309 (listing registration start date as July 15,

      2011). A year later, in July 2012, the trial court found that McVey violated his

      probation and sent him back to the DOC for “two years executed.” Id. at 298-

      99. McVey was released to parole in 2014.

[6]   In the meantime, McVey sought post-conviction relief. In July 2015, the post-

      conviction court vacated McVey’s convictions for Counts I and II, leaving only

      a conviction for Count III.2 Specifically, the post-conviction court found that

      McVey’s trial counsel was deficient because counsel “was not appropriately

      knowledgeable about the admissibility of statements made during a polygraph

      examination and the post-test interview” and failed to advise McVey “that

      although polygraph examination results are not admissible, statements made

      during the test and post-test interview are admissible.” Id. at 283-84. The court

      concluded that if McVey had not made such statements during the polygraph

      examination and the post-test interview, “there is a reasonable probability that




      2
        The charging information for Count III alleges that “between the dates of October 1998 and August 2001,”
      McVey performed or submitted to fondling or touching with J.H. with the intent to arouse or satisfy his or
      J.H.’s sexual desires. Appellant’s Direct Appeal App. p. 37.

      Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                           Page 4 of 14
      the outcome would have been different.” Id. at 285.3 The court did not vacate

      Count III, however, because it found that McVey admitted at trial that he

      “allowed J.H. to masturbate him,” thus committing the offense in Count III.

      Id. at 284-85. Because McVey had already served the sentence for Count III,

      the court ordered him released from parole immediately. Id. at 292.4


[7]   In September 2015, McVey filed two petitions pursuant to Indiana Code section

      11-8-8-22(c), which provides that an offender may petition a court to be

      removed from the registry and to require him to register under less-restrictive

      conditions.5 First, McVey filed a petition to be removed from the lifetime sex-

      offender registry. Second, he filed a petition asking to be exempt from the

      unlawful-entry statute because he was convicted of the qualifying offense (child

      molesting) before the statute went into effect.6 Following a hearing, the trial

      court denied both petitions. Id. at 338.




      3
        On direct appeal, McVey argued that the trial court abused its discretion by admitting these statements into
      evidence. We affirmed, concluding that McVey voluntarily made the statements. McVey v. State, 863 N.E.2d
      434, 442-43 (Ind. Ct. App. 2007), reh’g denied, trans. denied. On post-conviction, McVey framed the issue as
      ineffective assistance of counsel.
      4
       The record shows that McVey was incarcerated from July 8, 2002, to July 22, 2002, and from October 1,
      2003, to July 15, 2011, for Counts I, II, and III. Appellant’s P-C App. p. 294.
      5
        Contrary to the State’s argument on appeal, McVey filed these petitions in the correct court. Indiana Code
      section 11-8-8-22(d) provides that an offender shall file the petition “in the circuit or superior court of the
      county in which the offender resides.” Because McVey lives in Shelby County, he correctly filed the petition
      in Shelby Circuit Court (which happened to be the same court where he was convicted, sentenced, and
      granted partial post-conviction relief).
      6
       McVey alleged that he needed to enter school property because he was in the process of applying for a
      commercial driver’s license (CDL) and, as part of that process, needed to take a course at Blue River Career
      Programs, which serves both high-school students and adults. See Blue River Career Programs,

      Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                               Page 5 of 14
[8]   McVey now appeals.



                                  Discussion and Decision
            I. Retroactive Application of Lifetime-Registration
                              Requirement
      McVey first contends that because the events underlying Count III took place

      before July 1, 2001—which is when the amendment requiring him to register as

      a sex offender for life as opposed to ten years went into effect—requiring him to

      register as a sex offender for life violates Indiana’s prohibition against ex post

      facto laws. Article 1, Section 24 of the Indiana Constitution prohibits ex post

      facto laws, which impose punishment for an act that was not punishable at the

      time it was committed or which assign additional punishment to an act already

      punished. Flanders v. State, 955 N.E.2d 732, 748 (Ind. Ct. App. 2011), trans.

      denied, reh’g denied. “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.” Gonzalez, 980 N.E.2d

      at 316 (quotation omitted).


[9]   The Indiana Supreme Court addressed whether the retroactive application of

      the 2001 amendment, which changed the registration requirement from ten

      years to life, violated Indiana’s ex post facto provision in Gonzalez. In that case,




      http://www.brcp.k12.in.us/ (last visited June 9, 2016); see also Ind. Code § 35-31.5-2-285 (defining “school
      property”).

      Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                              Page 6 of 14
       the defendant pled guilty to child solicitation in 1997, well before the 2001

       amendment became effective. After the defendant had fully served his sentence

       and probation and during the ten-year period of his required registration, the

       statute was amended to require lifetime registration. Our Supreme Court

       concluded that Indiana’s Ex Post Facto Clause prohibited retroactive

       application of the lifetime-registration requirement to the defendant. Id. at 315.


[10]   Like the defendant in Gonzalez, McVey argues that because he committed the

       offense in Count III before the amendment went into effect on July 1, 2001,

       Indiana’s Ex Post Facto Clause prohibits retroactive application of the lifetime-

       registration requirement to him.7 McVey acknowledges that the charging

       information for Count III alleges that the offense occurred between October

       1998 and August 2001, which includes a brief period when the amendment was

       effective; however, he points out that Count III is based entirely on his

       admission at trial that he let J.H. masturbate him, which occurred before July 1,

       2001. He is correct.


[11]   In its order vacating McVey’s convictions in Counts I and II, the post-

       conviction court explained that it was not vacating his conviction in Count III

       because McVey admitted at trial that he “allowed J.H. to masturbate him,” thus

       committing the offense in Count III. Appellant’s P-C App. p. 284-85. Indeed,




       7
         Although our Supreme Court found an ex post facto violation “as applied” to the defendant in Gonzalez,
       980 N.E.2d at 321, the only ground upon which the State distinguishes Gonzalez is that the defendant in
       Gonzalez committed the offense before the 2001 amendment went into effect. But as explained below, we also
       find that McVey committed the offense before the 2001 amendment went into effect.

       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                           Page 7 of 14
       McVey testified at trial that he had engaged in only one sex act with J.H. That

       is, on one occasion, J.H. came into McVey’s bedroom when he was asleep;

       when he woke up, J.H. “was stroking [his] penis.” Direct Appeal Tr. p. 407.

       After about a minute, he ejaculated. Id. Although McVey did not testify as to

       when this single incident occurred, Indiana State Police Officer Mark James

       did. Officer James testified that he interviewed McVey on May 28, 2002,

       during which McVey said that the incident occurred “approximately twelve to

       fourteen months ago.” Id. at 223. Accordingly, the single incident for which

       McVey now stands convicted occurred sometime between March and May

       2001, which is before the amendment went into effect on July 1, 2001. Because

       Indiana’s Ex Post Facto Clause prohibits retroactive application of the lifetime-

       registration requirement to McVey, he is required to register for only ten years.

[12]   McVey claims, however, that this ten-year period has already expired and

       therefore he should be removed from the sex-offender registry, because “[b]ut

       for the sentences imposed for counts one and two, which were subsequently

       vacated, [he] would have been released from the [DOC] on September 30,

       2004,” not July 15, 2011. Indiana Code section 11-8-8-19(a) provides that

       when a sex offender is required to register for ten years, the sex offender must

       do so “until the expiration of ten (10) years after the date” the sex offender is

       released from a penal facility for the sex offense requiring registration. The

       registration period is tolled during any period that the sex offender is

       incarcerated. Ind. Code § 11-8-8-19(a).




       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016       Page 8 of 14
[13]   The record shows that McVey was released from the DOC for Counts I, II, and

       III on July 15, 2011. See Appellant’s P-C App. p. 297. Nevertheless, McVey

       argues that “fundamental due process and basic fairness” dictate that the ten-

       year period should be treated as if it started on September 30, 2004. Appellant’s

       Reply Br. p. 10. McVey, however, cites no authority in support of this

       argument. In addition, the plain language of the statute provides that the ten-

       year period starts when the sex offender is released from prison, not when the

       sex offender should have been released. Accordingly, we find that McVey’s

       ten-year registration period started when he was actually released from prison

       on July 15, 2011. Because McVey was incarcerated from May 1, 2012, to May

       1, 2014—a total of 730 days—for violating his probation, see Appellant’s P-C

       App. p. 298-99, McVey’s ten-year-registration period is extended for 730 days.8


           II. Retroactive Application of Unlawful-Entry Statute
[14]   McVey next contends that applying the unlawful-entry statute to him violates

       Indiana’s ex post facto provision because he committed the qualifying offense

       (child molesting) in 2001, well before the unlawful-entry statute went into effect

       on July 1, 2015.9




       8
         McVey notes that he was incarcerated for 150 days in another case. See Appellant’s Reply Br. p. 10.
       If McVey was incarcerated for any days in addition to the 730 days he was incarcerated for violating
       his probation, then his ten-year registration period is extended by these days as well.

       9
         The State argues that it is too early for McVey to make an ex post facto claim because he has not been
       charged with unlawful entry by a serious sex offender. See Appellee’s Br. p. 26-27. A person “should not be
       required to face the Hobson’s choice between forgoing behavior that he believes to be lawful and violating the
       challenged law at the risk of prosecution.” Smith v. Wis. Dep’t of Agric., 23 F.3d 1134, 1141 (7th Cir. 1994); see

       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                                 Page 9 of 14
[15]   In evaluating an ex post facto claim under the Indiana Constitution, our courts

       apply the “intent-effects” test. Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009),

       reh’g denied. First, we examine “what type of scheme” the General Assembly

       intended the Sex Offender Registration Act (“the Act”) to establish. Gonzalez,

       980 N.E.2d at 316. If the legislature’s purpose was to impose punishment, then

       the inquiry ends and an ex post facto violation is found. Id. If, however, the

       legislature’s intent was regulatory or civil in nature, then the court must move

       to the second prong of the inquiry to determine whether the effects of the Act

       are so punitive as to transform the regulatory scheme into a criminal penalty.

       Id. Because there is no available legislative history and the Act does not contain

       a purpose statement, our Supreme Court has consistently assumed without

       deciding that the legislature’s intent in passing the Act was to create a civil,

       regulatory, non-punitive scheme, and then moved to the second part of the test.

       See id.


[16]   For the second part of the test, we consider whether the effects of the Act, as

       applied to that defendant, are so punitive in nature as to constitute a criminal

       penalty. Id. at 317. In evaluating the effects, we apply the following seven

       factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963): (1) whether the

       sanction involves an affirmative disability or restraint; (2) whether it has

       historically been regarded as punishment; (3) whether it comes into play only




       also Greer v. Buss, 918 N.E.2d 607, 614 (Ind. Ct. App. 2009) (acknowledging that a person “need not ‘first
       expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his
       exercise of constitutional rights’” (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)).

       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                                Page 10 of 14
       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 it has a rational alternative

       purpose; and (7) whether it appears excessive in relation to the alternative

       purpose. Jensen v. State, 905 N.E.2d 384, 391 (Ind. 2009). These factors are

       neither exhaustive nor dispositive; they provide a framework for the analysis.

       Tyson v. State, No. 45S03-1509-CR-528, 2016 WL 756366 (Ind. Feb. 25, 2016).


[17]   Our Supreme Court addressed the retroactive application of a similar statute,

       the residency-restriction statute, in State v. Pollard, 908 N.E.2d 1152 (Ind. 2009).

       Effective July 1, 2006, a person who is required to register as a sex offender and

       who is either found to be a sexually violent predator or convicted of certain

       crimes against children commits sex offender registry offense, a Level 6 felony,

       if he knowingly or intentionally resides within 1000 feet of school property, a

       youth-program center, or a public park. Ind. Code Ann. § 35-42-4-11 (West

       Supp. 2015). In Pollard, the defendant argued that the residency-restriction

       statute violated Indiana’s ex post facto provision because he committed the

       qualifying offense before the statute went into effect.10 In determining the

       effects of the statute, the Court analyzed the seven factors from Mendoza-

       Martinez and concluded that Factors 1, 2, 4, 5, and 7 were punitive as applied to




       10
         The public law that created the residency-restriction statute contains a non-code provision that the statute
       applies “only to crimes committed after June 30, 2006.” See P.L. 6-2006, § 10. Accordingly, our Supreme
       Court noted in Bleeke v. Lemmon that this statute applies only to offenders who commit their crimes after June
       30, 2006. 6 N.E.3d 907, 922-23 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016                            Page 11 of 14
       the defendant: (1) the restraint imposed by the residency-restriction statute was

       not minor or indirect, as it affected the defendant’s freedom to live in a house

       that he owned before the statute went into effect and had lived in for twenty

       years; (2) living restrictions are common conditions of probation and parole; (4)

       the residency-restriction statute is designed to reduce the likelihood of future

       crimes by depriving sex offenders of the opportunity to commit the crimes; (5)

       the defendant’s guilt on the qualifying offense exposed him to further criminal

       liability under the residency-restriction statute; and (7) because the residency-

       restriction statute also applies to sexually violent predators (which can include

       defendants convicted of sex crimes not involving children) and the abbreviated

       record presented on appeal did not include the sex offense that the defendant

       was convicted of, restricting residence based on conduct that may have nothing

       to do with crimes against children was punitive. Accordingly, the Court

       concluded that, as applied to the defendant, the residency-restriction statute

       violated Indiana’s ex post facto provision because it “impose[d] burdens that

       ha[d] the effect of adding punishment beyond that which could have been

       imposed when his crime was committed.” Id. at 1154.


[18]   Using Pollard as a guide, we find that Factors 1 and 7 are non-punitive as

       applied to McVey and thus readily distinguish this case from Pollard. As for

       Factor 1, which addresses whether the law subjects those within its purview to

       an affirmative disability or restraint, the record shows that McVey wants to

       enter school property, Blue River Career Programs, to take a CDL class.

       Notably, McVey does not allege that this is the only place where he can take the


       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016     Page 12 of 14
       class. And it appears that McVey started the CDL process after the unlawful-

       entry statute went into effect on July 1, 2015. An offender who is prohibited

       from entering school property to take a class after the unlawful-entry statute

       became effective is very different from an offender who is prohibited from living

       in a house that the offender owned and lived in for twenty years before the

       residency-restriction statute became effective. The effects to McVey are minor

       in comparison. See Sewell v. State, 973 N.E.2d 96, 103 (Ind. Ct. App. 2012)

       (applying the residency-restriction statute to the defendant did not violate

       Indiana’s ex post facto provision because he “did not reside [in] or own

       property within 1,000 feet of the church when he was convicted of child

       molesting. Nor has he shown that he resided in property which only later fell

       within a protected zone . . . . We conclude that because [the defendant’s]

       residency decision occurred after the enactment of the statute, [his] prosecution

       does not violate” Indiana’s ex post facto provision). This factor is non-punitive

       as applied to McVey.

[19]   Factor 7, which addresses whether the statute appears excessive in relation to

       the alternative purpose assigned, is given the greatest weight. See Pollard, 908

       N.E.2d at 1153. Although the unlawful-entry statute, like the residency-

       restriction statute, also applies to sexually violent predators (which can include

       defendants convicted of sex crimes not involving children), McVey was

       convicted of child molesting, which is a crime against children. In contrast, in

       Pollard, it was unknown whether the defendant’s sex-offense conviction was

       against a child. Id. at 1147 n.1 (“The stipulated facts say nothing about the


       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016     Page 13 of 14
       nature of the offense or the sentence imposed.”). Accordingly, the Pollard Court

       found that because the residency-restriction statute applied to sexually violent

       predators, restricting residence based on conduct that may have nothing to do

       with crimes against children was punitive as applied to the defendant. But

       because McVey was convicted of child molesting, this factor is non-punitive as

       applied to McVey.

[20]   Because of the distinctions between Pollard and this case—particularly Factor 7,

       which is given the greatest weight—we conclude that, as applied to McVey, the

       unlawful-entry statute does not violate Indiana’s ex post facto provision.

[21]   Affirmed in part and reversed in part.


       Barnes, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 73A04-1601-CR-12| July 1, 2016    Page 14 of 14
