      MEMORANDUM DECISION
                                                                     Jun 17 2015, 7:43 am
      Pursuant to Ind. Appellate Rule 65(D), this
      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

                                                                Kyle Hunter
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Peter F. Bushee,                                          June 17, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                41A01-1411-MI-486
              v.                                                Appeal from the Johnson Superior
                                                                Court
      Sheriff of Johnson County,                                The Honorable Lance Hamner,
      Indiana,                                                  Judge
      Appellee-Respondent                                       Case No. 41D03-1309-MI-127




      Crone, Judge.



                                               Case Summary
[1]   Peter F. Bushee committed sexual offenses against his stepdaughter in Virginia

      in the mid-1970s and in Vermont in the early 1990s. He pled nolo contendere
      Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015     Page 1 of 11
      to the Vermont offenses in 1993 and pled guilty to the Virginia offenses in 1996,

      receiving a twenty-year sentence for the latter. Indiana’s Sexual Offender

      Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA

      was amended to provide that a person who is required to register as a sex

      offender in any jurisdiction shall register as a sex offender in Indiana for the

      period required by the other jurisdiction.


[2]   In 2013, Virginia released Bushee on parole. He asked to have his parole

      transferred to Indiana, which occurred immediately upon his release. Bushee

      was required to register as a sex offender as a condition of his Virginia parole,

      which expires in 2023. Shortly after Bushee moved to Indiana, the Sheriff of

      Johnson County (“the Sheriff”) notified him that he was required to register as

      a sex offender in Indiana. Bushee filed a petition to be released from SORA’s

      registration requirement and removed from the Indiana Sex Offender Registry,

      which the trial court denied.


[3]   On appeal, Bushee contends that the trial court erred in denying his petition

      because SORA is an unconstitutional ex post facto law as applied to him. We

      disagree. Bushee had fair warning of SORA’s registration requirement before

      he moved to Indiana, and it imposed no new duty because he was already

      required to register as a condition of his Virginia parole. Therefore, we affirm.


                                 Facts and Procedural History
[4]   Bushee was born in 1950. In 1993, he pled nolo contendere in Vermont to

      three felony counts of sexual assault for offenses committed against his

      Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 2 of 11
      stepdaughter in 1991 and 1992. According to Vermont court documents, he

      received concurrent sentences of five to twelve years for these crimes.

      Appellant’s App. at 37-38.1 In 1996, Bushee pled guilty in Virginia to three

      counts of crimes against nature and two counts of taking indecent liberties with

      children for offenses that were committed against his stepdaughter in the mid-

      1970s. He received an aggregate sentence of twenty years for these crimes.

      Bushee was incarcerated in Vermont from 1992 through 2000 and then was

      transferred to the custody of the Virginia Department of Corrections. 2


[5]   Meanwhile, in 1994 the Indiana legislature enacted SORA, which requires

      persons convicted of certain offenses to register as sex offenders. Ind. Code 5-2-

      12 (1994) (now Ind. Code 11-8-8). SORA has been amended many times since.

      Most relevant for our purposes, in 2006 SORA was amended to define sex

      offender as “a person who is required to register as a sex offender in any

      jurisdiction.” Ind. Code § 11-8-8-5(b)(1). And in 2007 SORA was amended to

      provide that a person who is required to register as a sex offender in any




      1
        In his response to the Sheriff’s interrogatories, Bushee stated that he received “an eight to twelve year
      sentence.” Appellant’s App. at 66.
      2
        At the hearing on his petition, Bushee testified that he committed the Vermont and Virginia offenses against
      the same victim, his stepdaughter. Tr. at 5. In his response to the Sheriff’s interrogatories, Bushee stated that
      his stepdaughter was fifteen years old at the time of the Vermont offenses and ten to twelve years old at the
      time of the Virginia offenses. We agree with the Sheriff that “[e]ither Bushee’s assertion that the victim was
      the same person or the dates of the offenses[] are not accurate” and that any inaccuracies or inconsistencies in
      this regard do not undermine the validity of the trial court’s ruling on his petition. Appellee’s Br. at 3 n.1.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015                  Page 3 of 11
      jurisdiction shall register as a sex offender in Indiana for the period required by

      the other jurisdiction, at minimum. Ind. Code § 11-8-8-19(f).3


[6]   In July 2013, Bushee was released on parole by the Virginia Department of

      Corrections. Upon his request, his parole was transferred to Indiana under an

      interstate compact. See Ind. Code § 11-13-4-1. Immediately after his release,

      his brother transported him to Greenwood, where he arrived on July 25, 2013.


[7]   On July 28, 2013, the Sheriff notified Bushee that he was required to register as

      a sex offender in Indiana. In September 2013, Bushee filed a petition to be

      released from SORA’s registration requirement and removed from the Indiana

      Sex Offender Registry pursuant to Indiana Code Section 11-8-8-22, which reads

      in pertinent part as follows:

               (c) A person to whom this section applies may petition a court to:
                        (1) remove the person’s designation as an offender and order
                        the department [of correction] to remove all information
                        regarding the person from the public portal of the sex and
                        violent offender registry Internet web site established under IC
                        36-2-13-5.5; or
                        (2) require the person to register under less restrictive
                        conditions.
               (d) A petition under this section shall be filed in the circuit or superior
               court of the county in which the offender resides.…



      3
        The State observes that in 2001, SORA was amended to require a person who was convicted in another
      jurisdiction of a crime that is substantially equivalent to certain enumerated Indiana offenses to register as a
      sex offender in Indiana. Ind. Code 5-2-12 (now Ind. Code 11-8-8). The State argues that Bushee’s Vermont
      and Virginia offenses are substantially equivalent to certain Indiana offenses and therefore he must register as
      a sex offender in Indiana. Because Bushee is also required to register as a sex offender as a condition of his
      parole under Virginia law, we need not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015                Page 4 of 11
              (e) After receiving a petition under this section, the court may:
                       (1) summarily dismiss the petition; or
                       (2) give notice to [certain entities and persons, including the
                       attorney general and the sheriff of the county where the
                       offender resides]
              and set the matter for hearing.…
              (f) If a court sets a matter for a hearing under this section, the
              prosecuting attorney of the county in which the action is pending shall
              appear and respond, unless the prosecuting attorney requests the
              attorney general to appear and respond and the attorney general agrees
              to represent the interests of the state in the matter.…
              ….
              (h) The petitioner has the burden of proof in a hearing under this
              section.
              ….
              (j) An offender may base a petition filed under this section on a claim
              that the application or registration requirements constitute ex post
              facto punishment.
      In his petition, Bushee essentially asserted that SORA is an unconstitutional ex

      post facto law as applied to him because “at the time of the offenses there was

      no [registration] requirement in Indiana, Vermont or Virginia.” Appellant’s

      App. at 27. The trial court summarily denied Bushee’s petition without a

      hearing.


[8]   Bushee filed a motion to correct error, which the trial court granted after a

      hearing. The Sheriff then filed a motion to correct error. The trial court

      granted the Sheriff’s motion and set a hearing on Bushee’s petition. Bushee

      filed a motion for summary judgment. The Sheriff filed a response and a cross-

      motion for summary judgment. In July 2014, the trial court held a hearing on

      Bushee’s petition. At the hearing, Bushee testified that he was required to
      Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 5 of 11
       register as a sex offender in Indiana pursuant to the conditions of his Virginia

       parole, which expires in 2023.4 Tr. at 10. Evidence regarding Bushee’s

       registration requirement and the duration of his parole had not been designated

       by either party on summary judgment.


[9]    In August 2014, the trial court issued an order with numerous findings and

       conclusions denying Bushee’s petition. The trial court also issued orders

       denying Bushee’s summary judgment motion and granting the Sheriff’s

       summary judgment motion. Bushee filed a motion to correct error, which was

       denied. This appeal followed.


                                          Discussion and Decision
[10]   Bushee contends that the trial court erred in denying his petition to be released

       from SORA’s registration requirement and removed from Indiana’s Sex

       Offender Registry. We review such rulings for an abuse of discretion. Lucas v.

       McDonald, 954 N.E.2d 996, 998 (Ind. Ct. App. 2011). “A trial court abuses its




       4
           Bushee testified as follows:

               Q   You said your condition of release on parole was to register in Virginia?
               A   No
               Q   Here?
               A   Here.
               Q   Was that a condition that was imposed by Virginia, or Indiana?
               A   By Virginia, I assume. The day I was released I came to Indiana.
       Tr. at 11. It is reasonable to presume that Bushee would have been required to register as a sex offender in
       Virginia if he had served his parole in that jurisdiction, and the State has cited authority to this effect. See
       Appellee’s Br. at 24 (citing Va. Code §§ 9.1-902, -908).

       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015                   Page 6 of 11
       discretion when its decision is clearly against the logic and effect of the facts

       and inferences supporting the petition for relief.” Id.


[11]   Bushee asserts that, as applied to him, SORA violates Article 1, Section 24 of

       the Indiana Constitution, which provides that no ex post facto law “shall ever

       be passed.” We have explained,

               The ex post facto clause forbids laws imposing punishment for an act
               that was not otherwise punishable when it was committed or imposing
               additional punishment for an act then proscribed. A law is ex post
               facto if it substantially disadvantages a defendant because it increases
               his punishment or deprives him of some defense or lesser punishment
               that was available at the time of the crime. Underlying the ex post
               facto clause is the desire to give people fair warning of the conduct that
               will give rise to criminal penalties.
       Seales v. State, 4 N.E.3d 821, 823 (Ind. Ct. App. 2014) (citations and italics

       omitted), trans. denied. “‘The critical question in evaluating an ex post facto

       claim “is whether the law changes the legal consequences of acts completed

       before its effective date.”’” Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct. App.

       2012) (quoting United States v. Brady, 26 F.3d 282, 291 (2nd Cir. 1994) (quoting

       Weaver v. Graham, 450 U.S. 24, 31 (1981)).


[12]   Unlike a facial constitutional challenge, an as-applied challenge asks only that

       the reviewing court declare the challenged statute unconstitutional on the facts

       of the particular case. Dowdell v. City of Jeffersonville, 907 N.E.2d 559, 564 (Ind.

       Ct. App. 2009), trans. denied. The constitutionality of a statute is a question of

       law that we review de novo without deference to the trial court’s determination.

       Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). “The party challenging the


       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 7 of 11
       constitutionality of a statute bears the burden of proof, and all doubts are

       resolved against that party and in favor of the legislature.” Id.


[13]   We recently addressed a similar challenge by a sex offender who moved from

       Texas to Indiana in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g

       denied. Tyson committed aggravated sexual assault in Texas in 2001 and was

       adjudicated a delinquent in 2002. Under Texas law, he was required to register

       as a sex offender from 2002 until 2014. As noted above, “[i]n 2006, SORA was

       amended to include in the definition of sex offender ‘a person who is required

       to register as a sex offender in any jurisdiction.’” Id. at 1076 (quoting Ind. Code

       § 11-8-8-5(b)(1)). Tyson moved to Indiana in 2009 and was stopped by a

       Merrillville police officer for an expired license plate in 2012. The officer

       learned that Tyson was required to register as a sex offender in Texas and that

       the Lake County Sexual Offender Registry showed no record of him registering

       as a sex offender in Indiana. The State charged Tyson with failure to register as

       a sex offender. Tyson filed a motion to dismiss, which the trial court denied.


[14]   On appeal, Tyson argued that SORA was unconstitutional as applied to him.

       He asserted that

               at the time he committed his predicate offense in Texas, there was no
               requirement in Indiana that a thirteen-year-old register as a sex
               offender because the offender was required to do so in Texas and that,
               therefore, he did not have fair warning of the sex offender registry
               penalty at the time he committed his offense in Texas. He further
               argue[d] that, to impose a registration requirement upon him based on
               the 2006 amendment of SORA that changed the definition of sex
               offender in Indiana violated the prohibition on ex post facto laws.


       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 8 of 11
       Id. at 1075-76.


[15]   We disagreed, concluding that

               Tyson had fair warning and notice that when he moved to Indiana and
               subjected himself to Indiana’s laws, that he was required to register as
               a sex offender. No new duty was imposed on Tyson as he was already
               required to register in Texas, and the legal requirement that such
               registration continue upon his relocation to Indiana already existed at
               the time of his move in 2009 as SORA had changed in 2006.
               Therefore, Tyson’s status as a sex offender was not triggered by
               moving to Indiana; it merely maintained the status as it was. His
               requirement to continue registration as it already existed was triggered
               when Tyson chose to subject himself to Indiana law by moving to
               Indiana. Because Tyson had fair warning of the registration
               requirement, SORA was not an ex post facto violation as applied to
               Tyson.
       Id. at 1076-77. See also Sewell, 973 N.E.2d at 102 (holding that 2006 statute

       prohibiting certain offenders from residing within 1000 feet of youth program

       center was not unconstitutional ex post facto law as applied to defendant who

       committed child molesting in 2001 and moved within 1000 feet of church with

       youth program center in 2011 “because [his] residency decision occurred after

       the enactment of the statute”; “The fact that an element of a crime ‘“draws

       upon antecedent facts”’ does not make [the statute] an ex post facto law. United

       States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (quoting Cox v. Hart, 260

       U.S. 427, 435, 43 S. Ct. 154, 67 L. Ed. 332 (1922)).”).


[16]   Even more recently, another panel of this Court relied on Tyson in a

       substantially similar case involving a registered sex offender from Michigan. In




       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 9 of 11
       State v. Zerbe, No. 49A05-1410-MI-463, 2015 WL 3451956 (Ind. Ct. App. May

       29, 2015), the petitioner

               was convicted of a felony sex offense in Michigan in 1992. After he
               was released from prison in 1999, he was required by Michigan law to
               register as a sex offender for twenty-five years.… In 2012, Zerbe
               moved to Indiana. Under SORA, he was required to register as a sex
               offender in Indiana for the remainder of the period required by
               Michigan law. Zerbe filed a petition to remove his designation as a
               sex offender, claiming that SORA is an unconstitutional ex post facto
               law as applied to him because it was enacted after he committed the
               Michigan offense and did not give him “fair warning that his conduct
               would result in a penalty requiring him to register as a sex offender.”
               The State opposed Zerbe’s petition, which the trial court granted.
       Id., slip op. at *1 (quoting Appellant’s App. at 5).


[17]   The State appealed. In urging this Court to affirm, Zerbe cited the same cases

       on which Bushee now relies: Wallace v. State, 905 N.E.2d 371 (Ind. 2009),

       Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), trans. denied (2013),

       Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012), trans. denied (2013), and

       State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012), trans. denied (2013). The

       majority found these authorities “inapposite, at best” and presumed that our

       legislature sought to avoid both the “absurd result” of Zerbe decreasing his

       punishment by moving to Indiana and an influx of out-of-state offenders

       migrating to Indiana in order to eliminate their registration requirements. Id. at

       *3. The majority agreed with the State that “‘the date of the commission of the

       crime was dispositive in Wallace, but it is not here,’ and that, as in Tyson, we

       ‘should consider the date that Zerbe moved to Indiana … as the relevant date

       for the ex post facto analysis.’” Id. (quoting Appellant’s Br. at 12). Because

       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015   Page 10 of 11
       Zerbe was presumed to know his registration obligation under Indiana law

       when he moved here and because SORA merely required him to fulfill his

       existing registration obligation under Michigan law, the majority held that

       SORA was not unconstitutional as applied to him.


[18]   We see no reason to depart from the reasoning of the unanimous Tyson panel

       and the Zerbe majority in this case. Because Bushee was already required to

       register as a sex offender as a condition of his parole under Virginia law,5 no

       new duty was imposed by SORA when he moved to Indiana. He also had fair

       warning of SORA’s registration requirement before he moved, and therefore

       SORA is not unconstitutional as applied to him. Consequently, we affirm the

       trial court’s denial of Bushee’s petition.6


[19]   Affirmed.


       Brown, J., and Pyle, J., concur.




       5
        Whether Virginia’s registration requirement is an ex post facto violation is an issue for a Virginia court to
       decide. The State notes that “Virginia, following federal precedent and the precedent of most other states,
       does not consider the retroactive imposition of a registration requirement on sex offenders to violate its
       constitution’s prohibition on ex post facto laws.” Appellee’s Br. at 24 n.7 (citing Kitze v. Commonwealth, 475
       S.E.2d 830, 834 (Va. Ct. App. 1996), cert. denied (1997)).
       6
        Bushee also argues that the trial court erred in granting the Sheriff’s cross-motion for summary judgment
       because the court heard evidence at the hearing on his petition that was not designated by either party on
       summary judgment. This argument is well taken but essentially moot given our affirmance of the denial of
       Bushee’s petition. For the same reason, we reject his claim that Indiana Code Section 11-8-8-22 does not
       apply to him.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1411-MI-486 | June 17, 2015               Page 11 of 11
