FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

BENJAMEN W. MURPHY                            GREGORY F. ZOELLER
Law Office of Ben Murphy                      Attorney General of Indiana
Merrillville, Indiana
                                              J.T. WHITEHEAD
                                              Deputy Attorney General

                                                                            FILED
                                              Indianapolis, Indiana

                                                                        Mar 16 2012, 9:12 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




ANDRE GONZALEZ,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 45A03-1108-CR-369
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Clarence D. Murray, Judge
                        The Honorable Natalie Bokota, Magistrate
                            Cause No. 45G02-9606-CF-180


                                   March 16, 2012

                             OPINION - FOR PUBLICATION

MAY, Judge
          Andre Gonzalez appeals the denial of his petition to remove his sex offender

designation pursuant to Ind. Code § 11-8-8-22. We reverse and remand.

                             FACTS AND PROCEDURAL HISTORY

          On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation1 based on

his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three

years, with eighteen months incarcerated and eighteen months on probation. On September

15, 1999, Gonzalez was discharged from probation and began registering as a sex offender,

which he would be required to do for ten years pursuant to the Sex Offender Registry Act

(SORA). See Ind. Code § 5-2-12-5 (1996) (sex offender required to register with local law

enforcement for ten years after the date the offender is placed on probation).

          Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way

that required Gonzalez to register as a sex offender for the rest of his life based on the details

of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting

it remove his registration requirement. On January 27, 2011, Gonzalez, by counsel, filed a

“Verified Petition to Remove Sex Offender Designation Pursuant to Ind. Code 11-8-8-22.”

(App. at 34.) The trial court denied the petition on July 22.

                                DISCUSSION AND DECISION

          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,


1
    Ind. Code § 35-42-4-6.
                                                2
748 (Ind. Ct. App. 2011), reh’g denied, trans. denied. “The underlying purpose of the Ex

Post Facto Clause is to give effect to the fundamental principle that persons have a right to a

fair warning of that conduct which will give rise to criminal penalties.” Jensen v. State, 905

N.E.2d 384, 389 (Ind. 2009).

       On July 1, 2006, our legislature amended the Indiana statutes which regulated SORA

to require certain sex offenders to register for life, rather than just ten years. One such

category included:

       A sex or violent offender who is convicted of at least one (1) offense under
       section 5(a)2 of this chapter that the sex or violent offender committed:
              (1) when the person was at least eighteen (18) years of age; and
              (2) against a victim who was less than twelve (12) years of age at the
              time of the crime;
       is required to register for life.

Ind. Code § 11-8-8-19(c) (2006) (footnote added). Suddenly, Gonzalez, who was over

eighteen years old at the time of his crime and who committed his crime on a victim under

twelve years old, qualified for required lifetime registration.

       Gonzalez argues this new lifetime registration requirement violates the prohibition

against ex post facto laws because his crime, when he committed it, required only ten years of

registration as a sex offender. We agree.

       In Jensen, our Indiana Supreme Court used a seven-factor test to determine whether

the statutory changes to the registry requirements violate ex post facto prohibitions:

       In assessing a statute’s effects we are guided by seven factors that are weighed
       against each other: “[1] Whether the sanction involves an affirmative disability

2
  Ind. Code § 11-8-8-5(a) (2006) includes the crime to which Gonzalez pled guilty, Class D felony child
solicitation.
                                                  3
       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.” Wallace [v. State], 905 N.E.2d at 379 (quoting
       Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d
       644 (1963)) (alterations in original). No one factor is determinative. “[O]ur
       task is not simply to count the factors on each side, but to weigh them.” Id.
       (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992)).

Jensen, 905 N.E.2d at 391. This is the “intent-effects” test. Id.

       In 2000, when Jensen pled guilty to Class C felony vicarious sexual gratification, Ind.

Code § 5-2-12-5 (1996) required him to register as a sex offender for ten years following his

release from prison, parole, or probation, whichever came latest. When amended SORA

statutes went into effect on July 1, 2006, vicarious sexual gratification had been added to the

list of offenses that caused an offender to be classified, as a matter of law, as a sexually

violent predator (SVP). See Ind. Code § 35-38-1-7.5(b) (2006) (including vicarious sexual

gratification as a crime making offender an SVP as a matter of law). In addition, the

amendments to Ind. Code § 11-8-8-19(b) required Jensen, as a SVP, to register as a sexually

violent predator for life.

       Jensen appealed, arguing the lifetime registration requirement violated the prohibition

against ex post facto laws. The Jensen Court ultimately concluded the amendment to Ind.

Code § 11-8-8-19(b), as applied to Jensen, was not an ex post facto law:

               The court found that there were significant obligations imposed by the
       registration act. Many of these were already in effect at the time that Jensen
       committed his offense, but SVPs do have some additional burdens, including
       informing law enforcement if they will be away from their residence for more
                                              4
       than seventy-two hours and registering for life. Therefore, the first factor
       leaned in favor of finding the act punitive. The court compared the act to the
       historical punishment of shaming, and therefore found that the second factor
       also leaned in favor of finding the act punitive. The court found that the act
       primarily applies to offenses that require a finding of scienter, so the court
       found that the third factor also leaned in favor of finding the act punitive. The
       court found that the act promoted the traditional aims of punishment, but this
       was also true of the versions in effect prior to 2006; therefore, the court
       concluded that the fourth factor leaned in favor of finding the act non-punitive.
        Likewise, the act applies only to behavior that is already a crime, but that was
       true before 2006. Therefore, the court concluded that the fifth factor leaned in
       favor of finding the act non-punitive. The court found that the act clearly
       promoted a rational alternative purpose: public safety. Therefore, the court
       concluded that the sixth factor also leaned in favor of finding the act non-
       punitive. Id. As to the seventh factor, the court stated:
              The “broad and sweeping” disclosure requirements were in
              place and applied to Jensen at the time of his guilty plea in
              January 2000. Nothing in that regard was changed by the 2006
              amendments. And with regard to lifetime registration, we note
              that sexually violent predators may, after ten years, “petition the
              court to consider whether the person should no longer be
              considered a sexually violent predator.” Ind.Code § 35–38–1–
              7.5(g) (2006).
       Thus, the court also concluded that the seventh factor leaned in favor of
       finding the act non-punitive and noted that this factor is afforded “considerable
       weight” when applying the seven-factor test. Because four of the seven factors
       (including the weighty seventh factor) leaned in favor of finding the act non-
       punitive, the court concluded that it was not an ex post facto law.

Flanders, 955 N.E.2d at 749-50 (summarizing analysis in Jensen) (case citations omitted).

       In Flanders, a SVP by virtue of his crime and multiple sex offenses, challenged his

registration requirement on ex post facto grounds because he was unable to petition for

removal of the lifetime registration requirement, unlike other SVPs. We concluded the

analysis of first six factors of the intent-effects test was the same under the facts presented in

both Jensen and Flanders. However, the seventh factor, “whether [the statute’s effect]


                                                5
appears excessive in relation to the alternative purpose assigned,” Jensen, 905 N.E.2d at 391,

tipped the scales. We held the amended SORA statutes as applied to Flanders were ex post

facto laws because Flanders, unlike Jensen, was unable to petition for a change of status

pursuant to Ind. Code § 35-38-1-7.5(g)3 because Flanders was a repeat sex offender and

explicitly excluded from petitioning for a change of status. See Ind. Code § 35-38-1-7.5(g)

(excluding repeat offenders from petitioning).

           Just as in Flanders, our analysis of the first six factors of the intent-effects test in the

instant case is identical to that in Jensen. Thus, we need only consider the seventh factor.

           The requirement that Gonzalez register as a sex offender for life is based on his age at

the time of the crime and the age of his victim. See Ind. Code § 11-8-8-19(c) (assigning

lifetime to person over eighteen years old who committed offense on victim under twelve).

Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his


3
    Ind. Code § 35-38-1-7.5(g) states:
          This subsection does not apply to a person who has two (2) or more unrelated convictions for
          an offense described in IC 11-8-8-4.5 for which the person is required to register under IC 11-
          8-8. A person who is a sexually violent predator may petition the court to consider whether
          the person should no longer be considered a sexually violent predator. The person may file a
          petition under this subsection not earlier than ten (10) years after:
                   (1) the sentencing court or juvenile court makes its determination under subsection
                   (e); or
                   (2) the person is released from incarceration or secure detention.
          A person may file a petition under this subsection not more than one (1) time per year. A
          court may dismiss a petition filed under this subsection or conduct a hearing to determine if
          the person should no longer be considered a sexually violent predator. If the court conducts a
          hearing, the court shall appoint two (2) psychologists or psychiatrists who have expertise in
          criminal behavioral disorders to evaluate the person and testify at the hearing. After
          conducting the hearing and considering the testimony of the two (2) psychologists or
          psychiatrists, the court shall determine whether the person should no longer be considered a
          sexually violent predator under subsection (a). If a court finds that the person should no
          longer be considered a sexually violent predator, the court shall send notice to the department
          of correction that the person is no longer considered a sexually violent predator.

                                                         6
lifetime registration requirement. Additionally, unlike both Flanders and Jensen, whose

lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.

Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not

an SVP; rather, his lifetime registration arose under Ind. Code § 11-8-8-19(c), which does not

classify him as an SVP or provide a mechanism by which he could petition the court for

removal of that requirement.4 Therefore, the seventh factor of the intent-effects test indicates

Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez

because the imposition of the requirement without recourse tips the test toward the change in

law being punitive.

        We therefore must reverse the denial of Gonzalez’s petition to remove the lifetime

SORA registration requirement and remand for removal of the lifetime registration

requirement.

        Reversed and remanded.

CRONE, J., and BROWN, J., concur.




4
  In Flanders, we were able to remedy the ex post facto violation by striking as unconstitutional the first
sentence of Ind. Code § 35-38-1-7.5(g). Flanders, 955 N.E.2d at 753. In order to remedy the ex post facto
violation here, we would need to write new language into one of the SORA related statutes, which we are not
permitted to do. See Citizens Action Coalition of Indiana, Inc. v. Public Service Commission, 425 N.E.2d 178,
183 (Ind. Ct. App. 1981) (court may not frustrate expressed intent of Legislature by adding new language to a
statute), reh’g denied.
                                                     7
