FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

DAVID S. HEALEY                             GREGORY F. ZOELLER
New Castle, Indiana                         Attorney General of Indiana

                                            KATHY BRADLEY
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                      Mar 04 2013, 9:39 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

DAVID S. HEALEY,                            )
                                            )
      Appellant-Petitioner,                 )
                                            )
             vs.                            )      No. 33A04-1202-MI-107
                                            )
STATE OF INDIANA,                           )
                                            )
      Appellee-Respondent.                  )


                      APPEAL FROM THE HENRY CIRCUIT COURT
                          The Honorable Mary G. Willis, Judge
                             Cause No. 33C01-1111-MI-61



                                   March 4, 2013


         OPINION ON PETITION FOR REHEARING - FOR PUBLICATION


SULLIVAN, Senior Judge
        David S. Healey petitions for rehearing of our memorandum decision in Healey v.

State (Healey II), No. 33A04-1202-MI-107 (Ind. Ct. App. Nov. 29, 2012). We grant his

petition, reverse the judgment of the trial court, and remand.

        As noted in our original memorandum decision, Healey seeks review of the trial

court’s denial of his Verified Petition to Remove Designation as an Offender, claiming

that the State’s requirement that he register as a sex offender for ten years constitutes an

ex post facto punishment in violation of the Indiana Constitution. In Healey II, we noted

that Healey’s ex post facto claim was identical to his ex post facto claim from a prior

appeal, Healey v. State (Healey I), 969 N.E.2d 607 (Ind. Ct. App. 2012), trans. denied.

Consequently, this Court followed the ex post facto analysis set forth in Healey I and

concluded that the trial court did not err by denying Healey’s Verified Petition.

        In his Petition for Rehearing, Healey argues that this Court should have considered

that the requirement for him to register as a sex offender for ten years was imposed upon

him by law without an opportunity to seek judicial review as to his future dangerousness

or complete rehabilitation. Healey asserts that when this lack of judicial review is

considered in the context of the “intent-effects” test set forth in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), his ten-year registration

requirement is an ex post facto punishment.

        We turn for guidance to our Supreme Court’s recent opinion in Gonzalez v. State,

980 N.E.2d 312 (Ind. 2013). In that case, Gonzalez pleaded guilty to child solicitation in

1997.    Upon discharge from probation, Gonzalez was required to register as a sex

offender for ten years pursuant to the Indiana Sex Offender Registration Act (“SORA”).

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Subsequently, during the ten-year registration period, the General Assembly amended

SORA to require convicted sex offenders such as Gonzalez to register for life.

       Gonzalez filed a request to end his obligation to register for life as a sex offender.

The trial court denied the petition, and a panel of this Court reversed. Our Supreme

Court granted transfer of the case. The Court noted that under the “intent-effects”

analysis, a court must first “determine what type of scheme the legislature intended to

establish.” Id. at 316. If the legislature intended to impose punishment, then an ex post

facto violation must be found. If, however, the legislature intended to serve a regulatory

or civil goal, then the court must “determine whether the effects of the statute are so

punitive as to transform the regulatory scheme into a criminal penalty” regardless of

legislative intent. Id.

       Our Supreme Court determined that the amendments to SORA were

presumptively constitutional, and Gonzalez had failed to put forth evidence of a punitive

intent by the General Assembly. Consequently, the Court moved to the second part of

the analysis, the effects of the extended registration period upon Gonzalez. The Court

considered the seven factors set forth in Mendoza-Martinez: (1) whether the sanction

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

regarded as a punishment; (3) whether it comes into play only 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 an

alternative purpose to which it may rationally be connected is assignable for it; and (7)

whether it appears excessive in relation to the alternative purpose assigned. Boss v.

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State, 944 N.E.2d 16, 23 (Ind. Ct. App. 2011) (quoting Mendoza-Martinez, 372 U.S. at

168-69).

       In Gonzalez’s case, the Court determined: (1) increasing Gonzalez’s registration

period from ten years to life was an affirmative disability or restraint; (2) extending the

duration of Gonzalez’s registration period is a sanction historically regarded as

punishment; (3) the registration requirement only comes into play after a finding of

scienter, specifically the mens rea to commit one of the crimes that causes a defendant to

be subjected to SORA; (4) Gonzalez’s extended registration period did not serve aims of

retribution and deterrence; (5) Gonzalez’s offense, child solicitation, was already a

criminal offense when his registration period was extended; (6) an alternative purpose—

public protection from repeat sex crime offenders—may rationally be connected to the

extended registration period; and (7) Gonzalez had no statutory right to seek review of

the extension of his registration period, which resulted in the Court concluding that the

extension was excessive in relation to the purpose of protecting the public from repeat

sex crime offenders. Weighing the factors, the Court concluded that the extension of

Gonzalez’s reporting requirement was so punitive as to amount to a criminal penalty, and

thus the lifetime reporting requirement violated Indiana’s ex post facto clause.

       Turning to Healey’s circumstances, in Healey I this Court determined that the

General Assembly did not act with punitive intent when it amended SORA, which

resulted in extending Healey’s sex offender registration requirements for ten years. 969

N.E.2d at 613. We agree with that conclusion here, as we did in Healey II.



                                             4
       Next, we turn to the seven factors set forth in Mendoza-Martinez. In Healey I, the

Court determined: (1) the extension of Healey’s registration period to ten years was not

an affirmative disability or restraint; (2) the registration requirement is a sanction

historically regarded as punishment; (3) the registration requirement only comes into play

after a finding of scienter; (4) the extended registration requirement did not serve aims of

retribution and deterrence; (5) Healey’s offense, child molestation, was already a criminal

offense; (6) an alternative purpose—protecting society from repeat sex crime offenders—

is rationally connected to Healey’s extended registration period; and (7) the extension of

Healey’s registration period was not excessive in relation to the purpose of protecting the

public. Consequently, the Healey I court, relying heavily on Jensen v. State, 905 N.E.2d

384 (Ind. 2009), determined that the effects of the SORA amendment were not punitive

as applied to Healey. 969 N.E.2d at 615-16.

       As noted in Healey II, the author of this opinion favors the dissenting opinion in

Jensen. 905 N.E.2d at 396-97 (Boehm, J., dissenting, joined by then-Justice Dickson).

Setting that issue aside, we conclude that our Supreme Court’s holding in Gonzalez

requires us to reach a different result than in Healey I.         In Gonzalez, the Court

distinguished Gonzalez’s situation from the appellant in Jensen, noting that Jensen had

been adjudicated a sexually violent predator and had a statutory right to request review of

that status. Gonzalez, 980 N.E.2d at 319. By contrast, Gonzalez had no right to judicial

review of the extension of his reporting period to life, which weighed in favor of

determining that the extension was excessive in relation to the purpose of public

protection. Similarly, in the current case Healey was not permitted to seek review of the

                                             5
extension of his reporting requirement to ten years. Therefore, as in Gonzalez, the

extension appears excessive in relation to the purpose of public protection.

       We are mindful that our task in applying the Mendoza-Martinez factors is not

simply to count the factors on each side, but to weigh them. Gonzalez, 980 N.E.2d at

317. Furthermore, our Supreme Court has “accorded special weight” to the seventh

factor of whether a sanction appears excessive in relation to the alternative purpose

assigned to it. Flanders v. State, 955 N.E.2d 732, 751 (Ind. Ct. App. 2011), trans. denied.

Consequently, we conclude that the extension of Healey’s reporting requirement for ten

years is punitive in effect and is thus an ex post facto punishment. See id. (determining

that application of SVP reporting requirements to Flanders was an ex post facto

punishment because, among other reasons, Flanders was not provided with an

opportunity to contest application of the requirements).

       For the reasons stated above, we grant Healey’s Petition for Rehearing, reverse the

judgment of the trial court, and remand for further proceedings consistent with this

opinion.

       Reversed and remanded.

FRIEDLANDER, J., and BARNES, J., concur.




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