                                                                          FILED
                                                                     Oct 19 2016, 8:19 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                         Mark K. Leeman
Attorney General                                           Leeman Law Office and Cass
                                                           County Public Defender
Kyle Hunter                                                Logansport, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          October 19, 2016
Appellant-Respondent/Plaintiff,                            Court of Appeals Case No.
                                                           09A02-1604-MI-933
        v.                                                 Appeal from the Cass Superior
                                                           Court
Charles Summers,                                           The Honorable Thomas C.
Appellee-Petitioner/Defendant.                             Perrone, Judge
                                                           Trial Court Cause No.
                                                           09D01-1510-MI-70
                                                           09D01-1508-F6-233



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                    Page 1 of 9
                                             Case Summary
[1]   After being ordered to register as a sex offender in Illinois for ten years, Charles

      Summers moved to Indiana. Summers later registered as a sex offender in

      Indiana. When Indiana applied its tolling statute to Summers (in order to

      extend Summers’ registration period by the amount of time he was incarcerated

      in Indiana for new crimes committed), Summers claimed that applying the

      statute to him violated Indiana’s prohibition against ex post facto laws. He

      argued that when he committed his underlying offense in Illinois, Indiana had

      not yet enacted its tolling statute. Because Summers was under a tolling

      requirement in Illinois, we find no punitive burden to maintaining that

      requirement across state lines. Because there is no ex post facto violation, we

      reverse the trial court and remand this case.



                              Facts and Procedural History
[2]   On April 27, 2005, Summers, age thirteen, was adjudicated a juvenile

      delinquent in Illinois for “Criminal Sex Abuse.” Appellant’s App. p. 29. He

      was placed on probation and ordered to register as a sex offender in Illinois for

      ten years. As a sex offender, if Summers became incarcerated for an unrelated

      conviction or adjudication, his registration period was tolled for that time

      period according to Illinois statute, 730 ILCS 150/7.1 See Lesher v. Trent, 944




      1
        Summers argues that Illinois’ tolling statute, 730 ILCS 150/7, does not apply to juveniles. As support for
      this argument, he cites 730 ILCS 150/3-5, which provides:

      Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                         Page 2 of 9
      N.E.2d 479, 483 (Ill. App. Ct. 2011) (noting that although 730 ILCS 150/7 was

      amended in 2008 to clarify an “ambiguity” regarding whether tolling was

      required, the Illinois Appellate Court held that the statute had always required

      tolling and that “the 2008 amendment merely clarified this requirement”), reh’g

      denied.


[3]   Summers moved to Indiana “several years” after his April 27, 2005 delinquency

      adjudication. Tr. p. 54;2 Appellant’s App. p. 21.

[4]   Effective July 1, 2006, the Indiana General Assembly amended the Sex

      Offender Registration Act’s (SORA) definition of sex offender to include “a

      person who is required to register as a sex offender in any jurisdiction.” P.L.

      140-2006, § 13; P.L. 173-2006, § 13; see Ind. Code §§ 11-8-8-4.5(b)(1), -5(b)(1).

      Then, effective July 1, 2008, the General Assembly amended SORA to provide

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

      incarcerated. P.L. 119-2008, § 8; see Ind. Code § 11-8-8-19(a).




            Once an adjudicated juvenile delinquent is ordered to register as a sex offender, the adjudicated
            juvenile delinquent shall be subject to the registration requirements set forth in Sections 3, 6, 6-5,
            8, 8-5, and 10 for the term of his or her registration.
      (Emphasis added). Summers asserts that because 730 ILCS 150/7 is not one of the listed sections, it
      does not apply to juveniles. The listed sections, however, are affirmative things that the offender must
      do, such as register in person, report changes in address and employment, and submit specimens for
      DNA analysis (and the penalty for failing to do these things). 730 ILCS 150/7 is not a registration
      requirement, or something that the offender must do. Rather, it addresses the duration of the
      offender’s registration. Accordingly, we do not agree with Summers that 730 ILCS 150/7 does not
      apply to juveniles simply because that section is not listed in 730 ILCS 150/3-5. Moreover, Summers
      does not cite any Illinois case that has held as such.


      2
       There are two transcripts in this case, one from each cause number. We use the transcript from the criminal
      case, Cause No. 09D01-1508-F6-233.

      Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                              Page 3 of 9
[5]   On August 26, 2010, Summers was convicted of two counts of robbery in

      Miami County, Indiana, and sentenced to the Indiana Department of

      Correction. After Summers was released from the DOC in 2015, he registered

      as a sex offender in Cass County, Indiana,3 see Appellant’s App. p. 39-40, and

      was told by the DOC that SORA’s tolling statute, Indiana Code section 11-8-8-

      19(a), extended his duty to register from April 27, 2015, to January 28, 2019,

      which was the amount of time that he had been incarcerated in the DOC.


[6]   On August 2, 2015, police went to Manor Motel in Logansport to verify the

      address that Summers had provided when he registered as a sex offender in

      Cass County, and management told police that Summers had moved out a few

      days earlier. Thereafter, the State charged Summers with Level 6 felony failure

      to register as a sex offender4 and Class A misdemeanor failure of a sex offender

      to possess identification under Cause No. 09D01-1508-F6-233 (“Cause No. F6-

      233”). Appellant’s App. p. 42.

[7]   Summers filed a motion to dismiss the criminal charges, arguing that SORA’s

      tolling provision, as applied to him, violated Indiana’s prohibition against ex

      post facto laws because Indiana’s tolling provision was enacted three years after




      3
          This appears to be the first time that Summers registered as a sex offender since moving to Indiana.
      4
       The charging information lists Indiana Code section 11-8-8-17(a)(1), which provides that a sex offender
      who knowingly or intentionally fails to register when required to register under this chapter commits a Level
      6 felony. Subsection (a)(5), in contrast, provides that it is a Level 6 felony when the offender does not reside
      at the offender’s registered address.

      Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                           Page 4 of 9
      his delinquency adjudication in Illinois. Following a hearing, the trial court

      dismissed the criminal charges against Summers.

[8]   The same day that the criminal charges were dismissed, Summers, pursuant to

      Indiana Code section 11-8-8-22, filed a petition to remove his name from

      Indiana’s sex-offender registry under Cause No. 09D01-1510-MI-70 (“Cause

      No. MI-70”). Id. at 5. The State later filed a motion to correct error in the

      criminal case, and the trial court held a joint hearing on the State’s motion to

      correct error and Summers’ petition to remove his name from the registry.

      Following the joint hearing, the court denied the State’s motion to correct error

      and found that Summers’ name should be removed from the registry. Tr. p. 56-

      57. The court issued the following order in Cause No. MI-70:

              [T]he Court . . . now finds that the offense and delinquency
              adjudication that would qualify [Summers] as a sex offender
              under current law occurred before Indiana’s Sex Offender
              Registration Act was amended to include a tolling provision, and
              requiring [Summers] to register is an ex post facto punishment that
              is constitutionally prohibited. [Summers] is therefore not
              required to register as a sex or violent offender in the State of
              Indiana.


              IT IS THEREFORE ORDERED, ADJUDGED, AND
              DECREED by the Court that [Summers] is not required under
              Indiana law to register as a sex or violent offender based upon his
              Dupage County, Illinois, juvenile delinquency adjudication and
              sentence of April 27, 2005, and the Indiana Department of
              Correction[] and the County Sheriff are directed to take such
              steps immediately as are required to remove his name from the
              Indiana Sex and Violent Offender Registry.


      Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016    Page 5 of 9
       Appellant’s App. p. 13.

[9]    The State filed a notice of appeal in both cause numbers, and this Court granted

       the State’s motion to consolidate the appeals.



                                   Discussion and Decision
[10]   The State contends that SORA’s tolling provision, as applied to Summers, does

       not violate Indiana’s constitutional prohibition against ex post facto laws.

       Accordingly, the State asks us to “reverse the trial court’s judgment” and

       “remand with instructions to proceed with Summers’ criminal case [in Cause

       No. F6-233] and restore his sex offender registration requirement [in Cause No.

       MI-70].” Appellant’s Reply Br. p. 11.

[11]   The fundamental principle to the prohibition against ex post facto laws is that

       people have a right to fair warning of the criminal penalties that may result

       from their conduct. Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016). Specifically,

       our Constitution provides, “No ex post facto law . . . shall ever be passed.” Ind.

       Const. art. 1, § 24. We review questions of law and constitutionality de novo.

       Tyson, 51 N.E.3d at 90. As the party challenging the constitutionality of a

       statute, Summers bears the burden of proof and all doubts are resolved against

       him. Id. at 91.


[12]   In Tyson, our Supreme Court addressed whether a thirteen year old, who was

       adjudicated a delinquent in Texas in 2002 and required to register as a sex

       offender there until 2014, was required to register as a sex offender when he

       Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016   Page 6 of 9
       later moved to Indiana in 2009.5 The Court noted that in 2006, the legislature

       amended SORA’s definition of sex offender to include “‘a person who is

       required to register as a sex offender in any jurisdiction.’” Id. at 90 (quoting

       2006 Ind. Acts 2318). The Court concluded that because Tyson was required to

       register as a sex offender in Texas, he was a sex offender in Indiana and

       required to register here for the duration of his Texas requirement.6 Id. at 92.


[13]   Our Supreme Court also addressed Tyson’s argument that his obligation to

       register as a sex offender in Indiana violated Indiana’s prohibition against ex

       post facto laws because when he committed the underlying offense in Texas,

       Indiana’s statutory definition had not yet been amended to include him.

       Applying the intent-effects test—which analyzes whether the statute imposes a

       punishment or whether the statute is merely part of a non-punitive, regulatory

       scheme—the Court found no ex post facto violation:




       5
         On appeal, both the State and Summers make much to do about the fact that the record does not reveal the
       precise date that Summers moved to Indiana, presumably because they believe if Summers moved here before
       the definition of sex offender was amended to include “a person who is required to register as a sex offender
       in any jurisdiction,” then he “never would have needed to register as a sex offender” in Indiana. Appellee’s
       Br. p. 12. Summers was adjudicated a juvenile delinquent in Illinois on April 27, 2005. Although no precise
       date was given, Summers conceded in the trial court that he moved to Indiana “several years” after April 27,
       2005. Tr. p. 54. SORA was amended a mere fourteen months after April 27, 2005—on July 1, 2006.
       Because “several years” is longer than fourteen months, Summers necessarily moved to Indiana after the
       definition of sex offender was amended to include him. Accordingly, contrary to the State’s suggestion in its
       reply brief, this case does not need to be remanded to the trial court “to determine when Summers moved to
       Indiana.” Appellant’s Reply Br. p. 7.
       6
        Indiana Code section 11-8-8-19(f) provides, “A person who is required to register as a sex or violent
       offender in any jurisdiction shall register for the period required by the other jurisdiction or the period
       described in this section, whichever is longer.” This subsection was added effective July 1, 2007. See P.L.
       216-2007, § 27.

       Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                         Page 7 of 9
               Taken as a whole, we find the effects of the amended definition
               of sex offender in Indiana Code section 11-8-8-5(b)(1), as applied
               to Tyson, are regulatory and non-punitive. This outcome makes
               sense in light of other as-applied ex post facto challenges to the
               Sex Offender Registration Act we’ve previously considered:
               unlike Wallace[v. State, 905 N.E.2d 371 (Ind. 2009)], where the
               offender had no obligation to register anywhere before the Act
               was passed, Tyson was required to register in Texas years before
               our statutory definition was amended to include him. His
               circumstances are much more similar to those in Jensen [v. State,
               905 N.E.2d 384 (Ind. 2009)] and [Lemon v.]Harris[, 949 N.E.2d
               803 (Ind. 2011)], where both offenders already had to register;
               the challenged amendments merely lengthened that requirement.
               We simply cannot say that transferring the obligation upon moving is
               any more punitive than lengthening it to potentially last a lifetime.


               Finding Tyson merely maintained his sex offender status across
               state lines, we conclude he has failed to show the amended
               definition retroactively punishes him in violation of our
               Constitution’s prohibition against ex post facto laws.


       Id. at 96 (emphasis added).


[14]   We reach the same conclusion here. First, as in Tyson, Summers was a sex

       offender in Illinois; by moving across state lines, Summers merely maintained

       his sex-offender status. Second, although Indiana adopted its tolling provision

       several years after Summers was adjudicated a juvenile delinquent in Illinois,

       Summers was already under a tolling requirement in Illinois. There is no




       Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016      Page 8 of 9
       punitive burden to maintaining both of these requirements across state lines.7

       Because Summers has not established an ex post facto violation, we reverse the

       trial court’s dismissal of the criminal charges against Summers in Cause No.

       F6-233 and reverse the trial court’s grant of Summers’ petition to remove his

       name from the sex-offender registry in Cause No. MI-70.

[15]   Reversed and remanded.

       Baker, J., and Najam, J., concur.




       7
        Summers argues that our SORA statutory scheme is punitive because, unlike Illinois’ statutory scheme, it
       does not contain a provision that allows for juvenile sex offenders to petition for removal from the registry
       after only five years. See 730 ILCS 150/3-5. Given the discretionary nature of these petitions in Illinois, we
       do not find that this makes our scheme punitive.

       Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016                          Page 9 of 9
