                                                                       Dec 11 2015, 8:43 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Amy D. Griner                                             Gregory F. Zoeller
Mishawaka, Indiana                                        Attorney General of Indiana
                                                          Kyle Hunter
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Rex S. Lovett,                                            December 11, 2015
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A04-1506-MI-591
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Teresa L. Cataldo,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          20D03-1502-MI-41



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015                   Page 1 of 11
                                           Case Summary
[1]   Rex Lovett (“Lovett”) filed a petition for relief from sex offender registration

      requirements under Indiana’s Sex Offender Registration Act (“SORA”). The

      trial court denied his petition. Lovett appeals, arguing that the registration

      requirement is unconstitutional as applied to him because it violates the ex post

      facto clause of the Indiana Constitution. Because Lovett was, at the time of and

      as a result of his original offense, subject to sex offender reporting requirements

      in another state, we conclude that an ongoing requirement to register in Indiana

      is not an additional, ex post facto punishment under the Indiana Constitution.


[2]   We affirm.



                             Facts and Procedural History
[3]   On August 28, 1991, Lovett was convicted of rape of a child and child

      molestation in the State of Washington. After serving his sentence, Lovett was

      released from incarceration on May 13, 2003. Under Washington law, Lovett

      is required to register as a sex offender indefinitely.


[4]   Upon his release from incarceration in May 2003, Lovett moved to Indiana. In

      addition to being required to register as a sex offender, in 2007, Lovett was




      Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 2 of 11
      required to register as a serious violent predator and comply with more rigorous

      restrictions after the General Assembly passed amendments to SORA.1


[5]   On February 11, 2015, Lovett filed a petition for relief from the sex offender

      registration requirements. Following a hearing, the trial court denied Lovett’s

      petition. Lovett now appeals.



                                  Discussion and Decision
[6]   In this appeal, Lovett contends that the trial court erred when it denied his

      petition because the requirements of Indiana’s SORA are ex post facto

      punishments as applied to him.


[7]   Article 1, section 24 of the Indiana Constitution provides that “[n]o ex post

      facto law…shall ever be passed.” Among other things,

                 the ex post facto prohibition forbids the state to enact any law which
                 imposes a punishment for an act which was not punishable at the time
                 it was committed or imposes punishment additional to that which was
                 already imposed. The underlying purpose of the ex post facto clause is
                 to give effect to the fundamental principle that persons have a right to
                 fair warning of the type of conduct that will give rise to criminal
                 penalties.
[8]   Burton v. State, 977 N.E.2d 1004, 1007 (Ind. Ct. App. 2012) (emphasis added)

      (internal citations omitted), trans. denied.




      1
          Ind. Code ch. 11-8-8.


      Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015       Page 3 of 11
[9]    In a line of cases beginning with the Indiana Supreme Court’s decision in

       Wallace v. State, 905 N.E.2d 371 (Ind. 2009), Indiana courts have addressed a

       variety of ex post facto challenges to the sex offender registration requirements

       under SORA. In Wallace, the Indiana Supreme Court was presented with an

       appeal by an individual who had been tried, convicted, and sentenced for sex

       offenses in the State of Indiana before Indiana’s SORA had been enacted into

       law. Id. at 373. In those circumstances, the Wallace Court held that registration

       requirements of SORA were unconstitutional ex post facto punishments as

       applied to Wallace, concluding that as to Wallace, SORA “impose[d] burdens

       that have the effect of adding punishment beyond that which could have been

       imposed when his crime was committed.” Id. at 384.


[10]   In Lovett’s case, the applicable facts are as follows. The State of Washington

       enacted its own version of SORA, which had already taken effect before Lovett

       was convicted of his crimes. Thus, Lovett was required upon release from

       imprisonment to register himself with authorities in the State of Washington,

       and this requirement was imposed immediately upon Lovett’s conviction.

       Rather than remain in Washington after his release from imprisonment in 2003,

       Lovett traveled to and settled in Indiana. When Lovett arrived in Indiana, our

       state’s SORA had been enacted and was in effect.


[11]   Nevertheless, Lovett argues that because his conviction date precedes the

       adoption of Indiana’s SORA, the imposition of a lifetime registration

       requirement in Indiana is an ex post facto punishment as to him. He argues that

       Wallace, as well as a line of cases from this Court, mandate this result because,

       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 4 of 11
       he says, the date of an individual’s conviction has been deemed determinative

       for Indiana ex post facto analysis in Hough v. State, 978 N.E.2d 505 (Ind. Ct. App.

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

       denied; Burton, supra. An examination of each of these cases shows that they are

       distinguishable from the case at bar, and that none of them impose the rule

       Lovett’s argument suggests: that a conviction date for a crime committed

       outside Indiana and prior to the enactment of Indiana’s SORA is by itself

       dispositive as to Indiana’s ex post facto analysis.


[12]   Burton, in particular, is instructive. Burton had been convicted of a sex offense

       in Illinois in 1987 and was subsequently required by that state to register in

       1996. Burton, 977 N.E.2d at 1006. He failed to do so, and was convicted for

       registration violations in 2003 and 2007; these offenses imposed upon Burton

       an ongoing registration requirement. Id. at 1008. The Burton Court centered its

       analysis in part upon the date of Burton’s conviction for his initial sex offense in

       Illinois, which predated both Illinois’s and Indiana’s SORA enactments by

       several years. The Burton Court rejected the State’s argument that Burton’s

       ongoing registration requirement in Illinois as a result of his 2003 and 2007

       convictions prevented Indiana registration requirements from being an ex post

       facto punishment as to Burton. Id. at 1009.


[13]   In reaching its decision, the Burton Court acknowledged that its holding as to

       the ex post facto nature of registration requirements might properly be limited to

       “those offenders who committed crimes in states which had no registration

       requirements at the time of the offenses.” Id. at 1010. As the Burton Court
       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 5 of 11
       observed, “the date of the commission of the crime and the law in place at that

       time is relevant to the ex post facto analysis.” Id. at 1009. This accords with

       the statement of our supreme court in Wallace that an ex post facto law is

       prohibited “because it imposes burdens that have the effect of adding

       punishment beyond that which could have been imposed when [the] crime was

       committed.” 905 N.E.2d at 384.


[14]   A review of the Indiana cases at issue here demonstrates conformance to the

       Burton Court’s interpretation of the requirements of Wallace. In Hough, Hough

       had been convicted of a sex offense in 1993 in Pennsylvania, which did not

       adopt an equivalent to SORA until 1996. 978 N.E.2d at 505. Thus, upon

       conviction, Hough was not required to register in Pennsylvania, and this Court

       accordingly concluded that a requirement to register as a sex offender in

       Indiana was an unconstitutional ex post facto punishment. Id. at 506-07.


[15]   In Andrews, Andrews had been convicted of a sex offense in Massachusetts in

       1984, and the Massachusetts sex offender registry law did not operate in a

       manner identical to that of Indiana. 978 N.E.2d at 495. When he moved to

       Indiana in 1993, this state’s SORA had not yet been enacted; when he again

       moved to Indiana in 1997, SORA did not require registration of individuals

       who had been convicted of sex offenses outside of Indiana. Id. Based upon the

       date of Andrews’s conviction, the different registration regime in Massachusetts

       under which Andrews had never been required to register, and the lack of an

       independent federal requirement that Andrews register as a sex offender, this



       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 6 of 11
       Court held that Indiana’s SORA requirements were an unconstitutional ex post

       facto punishment as to Andrews. Id. at 498, 502.


[16]   In each of these cases, then, this Court has held as an ex post facto punishment a

       sex offender registration requirement where the individual’s conviction came

       before the enactment of Indiana’s SORA. In each case, the analysis has turned

       on more than simply the date of an individual’s conviction, because each of

       these cases was unlike Wallace, which considered only the effect of an Indiana

       conviction prior to the enactment of Indiana’s SORA. In the other cases, there

       have been two crucial points: the date of the individuals’ conviction, and the

       use of Indiana’s ex post facto doctrine to evaluate the consequences of a

       conviction with respect to another state’s SORA enactment. In Burton and

       Hough, the states in which those individuals were convicted did not have SORA

       enactments prior to the individuals’ underlying convictions. In Andrews,

       Massachusetts’s SORA enactment did not impose registration as a matter of

       law without a hearing, statutory procedures which did not exist in Indiana and

       under which Andrews was never required to register in Massachusetts.


[17]   Here, unlike these cases, Lovett was convicted of a sex offense in another state

       and was required to register indefinitely in that state as of the time of his

       conviction. The date of his conviction relative to Indiana law is not, as the

       Burton Court observed, the sole determinant of whether a requirement to

       register as a sex offender in Indiana constitutes an ex post facto punishment. The

       question is, instead, whether such a requirement would impose additional



       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 7 of 11
       punishment for Lovett’s offenses beyond those burdens already placed upon

       him at the time of his conviction.


[18]   We conclude that the registration requirement does not do so, and thus

       Indiana’s SORA is not an ex post facto punishment as to Lovett.2 Lovett was

       subject to registration requirements in the State of Washington from the date of

       his conviction; it is not adding to his punishment to require continued

       registration in Indiana. And he should not be allowed to evade these

       requirements simply by relocating to Indiana, when the sole basis for that

       evasion would be a conviction date for a crime committed outside Indiana. We

       therefore affirm the judgment of the trial court.


[19]   Affirmed.


[20]   Mathias, J., concurs.


[21]   Baker, J., dissents with separate opinion.




       2
         This Court has previously concluded in dicta that when an individual has been convicted of an offense in
       another state and the individual was required as of the time of that offense to register as a sex offender in that
       state, there is no ex post facto violation associated with Indiana’s later-enacted registration requirement. In
       Herron v. State, 918 N.E.2d 682 (Ind. Ct. App. 2009), Herron had been convicted in 1984 as a sex offender in
       Arizona and, as of the time of his offense, was required to register for life. Id. at 684. After his release from
       prison, Herron registered as a sex offender in Arizona. He later moved to Indiana, and Indiana authorities
       requested that Herron register in 2008. Herron filed a petition seeking to avoid registration requirements
       under Indiana’s SORA, contending that this requirements was an ex post facto punishment. The trial court
       denied the petition, and this Court affirmed the trial court’s judgment, finding that, waiver notwithstanding,
       because Herron “was required by Arizona to register as a sex offender when he committed his offense,” he was
       not subject to an ex post facto punishment by the later-enacted Indiana registration requirements. Id. at 684
       (emphasis added).

       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015                          Page 8 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Rex S. Lovett,                                            Court of Appeals Case No.
                                                                 20A04-1506-MI-591
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent




       Baker, Judge, dissenting.

[22]   I respectfully dissent. In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), our

       Supreme Court held that mandatory sex offender registration is punitive, and

       that application of SORA to an offender who had committed his offense prior

       to the enactment of SORA violated the ex post facto prohibition of the Indiana

       Constitution.


[23]   On at least three occasions since Wallace, this Court has had occasion to

       consider the application of Wallace to individuals who were convicted of sex

       offenses in other states before SORA was enacted. In these cases, the defendant

       later moved to Indiana and argued that application of SORA as applied to him

       was unconstitutional. On each of these three occasions, this Court found that

       application of SORA was, in fact, unconstitutional under the ex post facto

       clause when applied to an individual who had committed his offense prior to


       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015           Page 9 of 11
       SORA’s enactment. State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012)

       (holding that defendant, who had been convicted of rape in Pennsylvania prior

       to SORA enactment, could not be required to register as sex offender in

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

       (holding that defendant, who had been convicted of sex offenses in

       Massachusetts prior to SORA enactment, could not be required to register as

       sex offender in Indiana), trans. denied; Burton v. State, 977 N.E.2d 1004, 1010

       (Ind. Ct. App. 2012) (holding that defendant, who had been convicted of sex

       offenses in Illinois prior to SORA enactment, could not be required to register

       as sex offender in Indiana), trans. denied.


[24]   I acknowledge that in this case, SORA imposed no additional burdens on

       Lovett because he was already required to register in Washington. That was

       also the case in Hough and in Burton, however. Hough, 978 N.E.2d at 505-06

       (had defendant remained in Pennsylvania, he would have been required to

       register; the State did not require him to register only because he planned to

       relocate immediately to Indiana upon his release); Burton, 977 N.E.2d at 1006-

       07 (defendant was required to register in Illinois and had been convicted twice

       in that State of registration violations).


[25]   I see no meaningful distinction between those cases and the instant case. In

       neither Wallace, nor Hough, nor Burton, nor Andrews, did the court explicitly

       include as part of its analysis the date of enactment of the SORA equivalent in

       the state of conviction. In my view, the majority engrafts this requirement onto



       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 10 of 11
       the prior cases, creating a second prong of a test that does not otherwise exist.

       Consequently, I part ways with the majority’s analysis of the relevant cases.


[26]   In this case, Lovett’s Washington convictions occurred in 1991. SORA, which

       requires sex offenders to register upon release from jail, was enacted three years

       later, in 1994. In 2001, the legislature amended SORA to require those with

       out-of-state convictions to register in Indiana upon residence in this State.


[27]   The State urges us to focus on the year in which Lovett moved to Indiana—

       2003. According to the State, because Lovett knew when he moved to Indiana

       that he would be required to register as a sex offender under SORA, there is no

       violation of the ex post facto clause.


[28]   While I see the logic in the State’s position on this issue, as well as the

       majority’s decision, the case law could not be clearer. Our Supreme Court, plus

       three panels of this Court, have plainly held that the date of primary importance

       is the date of the original conviction. Notwithstanding the state of the law at

       the time Lovett moved to Indiana, he is a resident of this State and “is entitled

       to the protections afforded to him by the Indiana Constitution. Therefore, even

       though he would be required to register as a sex offender under [Washington’s]

       laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Lovett was

       convicted of a sex offense before Indiana enacted SORA. Therefore, I believe

       that requiring him to register as a sex offender would violate Indiana’s

       constitutional prohibition against ex post facto laws; I would affirm the trial

       court’s judgment.


       Court of Appeals of Indiana | Opinion 20A04-1506-MI-591 | December 11, 2015   Page 11 of 11
