                                                                         May 29 2015, 8:47 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                        Joel M. Schumm
      Attorney General of Indiana
                                                                Paul T. Babcock
      Kyle Hunter                                               Certified Legal Intern
      Deputy Attorney General                                   Appellate Clinic
      Indianapolis, Indiana                                     Indiana University Robert H. McKinney
                                                                School of Law
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                         May 29, 2015

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                49A05-1410-MI-463
              v.                                                Appeal from the Marion Superior
                                                                Court

      Scott Zerbe,                                              The Honorable Timothy W. Oakes,
      Appellee-Petitioner                                       Judge

                                                                Case No. 49D13-1403-MI-9780



      Crone, Judge.


                                              Case Summary
[1]   Scott Zerbe 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
      Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015                    Page 1 of 13
      as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration

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

      provide that that a person 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. 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.” Appellant’s App. at 5. The State

      opposed Zerbe’s petition, which the trial court granted.


[2]   On appeal, the State argues that SORA is not an unconstitutional ex post facto

      law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s

      registration requirement before he moved to Indiana, and SORA imposed no

      additional punishment because he was already required to register in Michigan.

      Therefore, we reverse.


                                  Facts and Procedural History
[3]   The relevant facts are undisputed. In 1991, Zerbe engaged in sexual activity

      with a fourteen-year-old victim in Michigan. In 1992, he was convicted of

      criminal sexual conduct in the second degree and was sentenced to a minimum

      term of eight years. He was released from prison in 1999. Under Michigan


      Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015     Page 2 of 13
      law, Zerbe was required to register as a sex offender for twenty-five years.

      Mich. Comp Laws § 28.725.


[4]   In 1994, the Indiana legislature enacted SORA, which requires persons

      convicted of certain offenses to register as sex offenders. Ind. Code ch. 5-2-12

      (1994) (now Ind. Code ch. 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 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, at minimum. Ind. Code § 11-8-8-19(f).1


[5]   In December 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.2 A sex offender may petition a court to remove his designation as an

      offender or impose less restrictive registration conditions. Ind. Code § 11-8-8-

      22(c). The petitioner bears the burden of proving that he is entitled to relief.

      Ind. Code § 11-8-8-22(h). In March 2014, Zerbe filed a petition to remove his

      designation as an offender, asserting that SORA is an unconstitutional ex post




      1
       We note that prior amendments required persons with certain out-of-state convictions to register as sex
      offenders in Indiana, but we need not mention them here.
      2
       SORA’s registration requirements apply to persons who reside or work in Indiana as defined in Indiana
      Code Section 11-8-8-7. Zerbe does not challenge whether these definitions apply to him.

      Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015                           Page 3 of 13
      facto law as applied to him because it was enacted after he committed his

      Michigan offense, and therefore he “did not have a fair warning that his

      conduct would result in a penalty requiring him to register as a sex offender.”

      Appellant’s App. at 5. The State filed a response in opposition. After a

      hearing, the trial court issued an order summarily granting Zerbe’s petition.

      The State now appeals.


                                      Discussion and Decision
[6]   Zerbe’s petition alleged that SORA, as applied to him, violates Article 1,

      Section 24 of the Indiana Constitution, which provides that no ex post facto law

      “shall ever be passed.”

              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)).




      Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015           Page 4 of 13
[7]   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

      constitutionality of a statute bears the burden of proof, and all doubts are

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


[8]   We recently addressed a substantially similar ex post facto challenge by a Texas

      sex offender who moved to Indiana in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct.

      App. 2015), reh’g denied. In 2001, Tyson committed aggravated sexual assault

      in Texas, for which he was adjudicated a delinquent in 2002. Under Texas law,

      he was required to register as a sex offender from 2002 until 2014. “In 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. In

      2012, he was stopped by a police officer in Lake County for an expired license

      plate. The officer conducted a background check and 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.




      Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015      Page 5 of 13
[9]    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.
       Id. at 1075-76.


[10]   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


       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015        Page 6 of 13
       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)).”).


[11]   We see no reason to reach a different conclusion in this case, and we find

       Zerbe’s cited authorities inapposite, at best. Zerbe relies primarily on Wallace v.

       State, 905 N.E.2d 371 (Ind. 2009), in which the defendant was “charged,

       convicted, and served the sentence for” child molesting before SORA was

       enacted in 1994. Id. at 384. Sometime after 2003, Wallace was charged with

       and convicted of failure to register as a sex offender. On appeal, he claimed

       that SORA violated the ex post facto provisions of the Indiana and U.S.

       Constitutions. Our supreme court held that, as applied to Wallace, SORA

       violated the ex post facto clause of the Indiana Constitution “because it

       impose[d] burdens that have the effect of adding punishment beyond that which

       could have been imposed when his crime was committed.” Id.


[12]   Here, however, SORA imposed no additional burdens on Zerbe because he was

       already required to register in Michigan. The State points out that “Zerbe’s

       position is that he should be able to decrease his punishment by moving to

       Indiana.” Appellant’s Reply Br. at 4 (emphasis added). We presume that our

       legislature sought to avoid this absurd result (as well as an influx of convicted

       sex offenders) by amending SORA to require out-of-state sex offenders to

       continue fulfilling their obligation to register upon moving to Indiana. The

       State observes that when Burton moved to Indiana, he “had the expectation

       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015    Page 7 of 13
       that, as someone who had an existing registration requirement in another state,

       he was required to register in Indiana.” Appellant’s Br. at 11. See Bd. of Trs. of

       Hamilton Heights Sch. Corp. v. Landry, 638 N.E.2d 1261, 1268 (Ind. Ct. App.

       1994) (“All persons are presumed to know the criminal laws.”), opinion on reh’g.

       We agree 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. at 12.


[13]   Zerbe also cites Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), trans.

       denied (2013). Burton committed a sex offense in Illinois in 1987 and was

       sentenced to six years. At that time, he was under no obligation to register in

       Illinois. “In 1996, Illinois amended its SORA to require persons who had

       committed crimes such as Burton’s to register for a period of ten years.” Id. at

       1006. “The version of [Indiana’s] SORA under which Burton is required to

       register first became effective in 2006.” Id. Burton was convicted in Illinois for

       registration violations in 2003 and 2007 and moved to Indiana, where he was

       convicted of failure to register in 2009. Following his release, Burton was

       charged with two more counts of failure to register and filed a motion to

       dismiss on ex post facto grounds, which the trial court denied.


[14]   Another panel of this Court reversed, stating,

               Had the qualifying offense and the enactment of the registration
               requirement occurred in Indiana, Wallace would dictate dismissal of
               the charges. We hold that Burton has the protection of our
               constitution as to the application of our SORA, without regard to the
       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015          Page 8 of 13
               fact that he was convicted of the qualifying sex offense in Illinois. It is
               for us, not Illinois, to determine who is required to register under our
               SORA.
       Id. at 1008-09. The panel further stated,

               Of importance in determining whether our SORA violates our
               constitution’s prohibition on ex post facto laws is the date of the
               commission of the crime in relation to the passage of our SORA. See
               Wallace, 905 N.E.2d at 384 (holding that SORA violates ex post facto
               clause of Indiana Constitution where defendant committed his offense
               before SORA was enacted). Thus, it is the date of the commission of
               the crime and the law in place at that time that is relevant to the ex
               post facto analysis.
       Id. at 1009.


[15]   The State suggests that Burton’s reliance on Wallace is misplaced, noting that the

       Wallace court “did not consider the issue of relocation to Indiana and the

       expectations of sex offenders who had registration requirements in other

       jurisdictions.” Appellant’s Br. at 12. The State also points out that “Burton did

       not commit his crime in Indiana, and he was not subject to Indiana’s laws or

       Indiana’s registration requirement until he moved to Indiana.” Id. at 11.

       Consequently, we agree with the State that Burton “does not provide a complete

       analysis necessary for an as-applied constitutional challenge” based on the facts

       of this case. Id. at 12.3




       3
         Zerbe also cites 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). Because neither defendant was required to
       register under SORA when they moved to Indiana, we find those cases inapplicable.

       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015                           Page 9 of 13
[16]   Consistent with our holding in Tyson, then, we conclude that SORA is not an

       unconstitutional ex post facto law as applied to Zerbe. Therefore, we reverse

       the trial court’s grant of his petition to remove his designation as a sex offender.


[17]   Reversed.


       Brown, J., concurs.


       Baker, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015    Page 10 of 13
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                          Court of Appeals Case No.
                                                                  49A05-1410-MI-463
       Appellant-Plaintiff,

               v.

       Scott Zerbe,
       Appellee-Defendant.




       Baker, Judge, dissenting.

[18]   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.


[19]   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


       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015                 Page 11 of 13
       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. 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.


[20]   I acknowledge that in this case, as noted by the majority, “SORA imposed no

       additional burdens on Zerbe because he was already required to register in

       Michigan.” Slip op. p. 7. 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). I see no meaningful distinction between those cases and the instant

       case. Moreover, I part ways with the majority in its criticism of the Burton

       analysis.

       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015    Page 12 of 13
[21]   In this case, Zerbe’s Michigan conviction occurred in 1992. SORA, which

       requires sex offenders to register upon release from jail, was enacted two 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.


[22]   The State argues that we should focus on the date of the year in which Zerbe

       moved to Indiana—2012—over a decade after the 2001 amendment.

       According to the State, because Zerbe 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.


[23]   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 Zerbe 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 [Michigan’s]

       laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Zerbe 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 and would affirm the trial court’s

       judgment.




       Court of Appeals of Indiana | Opinion 49A05-1410-MI-463 | May 29, 2015        Page 13 of 13
