FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                         GREGORY F. ZOELLER
Appellate Public Defender                     Attorney General of Indiana
Crown Point, Indiana
                                              NICOLE M. SCHUSTER
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                        FILED
                                                                     Nov 08 2012, 9:46 am


                            IN THE                                            CLERK
                                                                            of the supreme court,
                                                                            court of appeals and

                  COURT OF APPEALS OF INDIANA                                      tax court




JEROME MICHAEL BURTON,                        )
                                              )
     Appellant-Defendant,                     )
                                              )
            vs.                               )    No. 45A03-1201-CR-6
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Plaintiff.                      )



                    APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Thomas P. Stefaniak, Jr., Judge
                          Cause No. 45G04-1104-FC-00052




                                  November 8, 2012

                            OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       In this interlocutory appeal, Jerome Michael Burton challenges the trial court’s

denial of his motion to dismiss the charge of failure to register as a sex offender.

       We reverse and remand.

                                           ISSUE

       The issue is whether it is a violation of the ex post facto provision of the Indiana

Constitution to require Burton to register under the Indiana Sex Offender Registration

Act (“SORA”) as one who is required to register in another state, Illinois, when the

statutes requiring him to register in Illinois and in Indiana were enacted after he had been

convicted of the qualifying offense in Illinois.

                        FACTS AND PROCEDURAL HISTORY

       In 1987, Burton was convicted in Illinois of aggravated criminal sexual assault and

sentenced to six years. At that time in Illinois, Burton was under no requirement to

register. 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. Thereafter, he was convicted

in Illinois in 2003 and in 2007 for sex offender registration violations. Burton then

moved to Indiana and, in 2009, was convicted in Indiana of failure to register as a sex or

violent offender and was sentenced to one year pursuant to our SORA. See Ind. Code §§

11-8-8-1 to -22. The version of our SORA under which Burton is required to register

first became effective in 2006. See Ind. Code §§ 11-8-8-5(b)(1) (stating that the term

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

                                              2
jurisdiction), -7(1) (stating that a sex offender who resides in Indiana must register).

Following his release, Burton registered as a sex offender from June through October

2009; however, he failed thereafter to register. In April 2011, he was charged with two

Class C felony counts of failure to register pursuant to Indiana Code section 11-8-8-17

(2007).   Burton filed a motion to dismiss these charges on the ground that the

requirement that he register violates the ex post facto provision of the Indiana

Constitution. The trial court, following a hearing, denied Burton’s motion, and the case

comes to us on interlocutory appeal of that denial.

                              DISCUSSION AND DECISION

       Burton contends that, as applied to him, our SORA constitutes retroactive

punishment forbidden by the ex post facto prohibition contained in the Indiana

Constitution because he committed his crime in Illinois before any registration was

required by either Illinois or Indiana.

       When the constitutionality of a statute is challenged, we begin with the

presumption that the statute is constitutional. Brown v. State, 868 N.E.2d 464, 467 (Ind.

2007). The party challenging the statute labors under the heavy burden of proving

otherwise.    Id.   All reasonable doubt must be resolved in favor of the statute’s

constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000).

       The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

passed.” Ind. Const. art. I, § 24. 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

                                             3
punishable at the time it was committed or imposes punishment additional to that which

was already imposed. State v. Pollard, 908 N.E.2d 1145, 1148-49 (Ind. 2009). 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. Id. at 1149.

       In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), our Supreme Court held

unanimously that mandatory sex offender registration is punitive and that application of

Indiana’s SORA to an offender who had committed his offense prior to the enactment of

our SORA violated the ex post facto prohibition of the Indiana Constitution.

       Jensen v. State, 905 N.E.2d 384 (Ind. 2009), was handed down the same day as

Wallace.    At the time Jensen pleaded guilty there was in place an Indiana SORA

requirement that he register for a period of ten years. Six years later, our SORA was

amended in several respects, including a provision that a person who committed one of

the offenses to which Jensen had pleaded guilty was required to register for life. The

legislation contained no provision preventing application of our SORA to crimes

committed prior to its effective date. The trial court ruled that Jensen was required to

register for life. Our Supreme Court was sharply divided on the merits but affirmed the

trial court. Two justices found that the additional requirement to register for life did not

impose any greater burden or have any greater adverse effect on Jensen and, thus, the

requirement did not violate our state’s ex post facto prohibition as applied to him. Id. at

394. One justice concurred in result on the basis that because the original period of ten

                                             4
years had not yet expired, the claim of unconstitutionality of the lifetime registration

requirement was not ripe for adjudication. Id. at 396. The remaining two justices found

that the controversy was ripe and the enhanced requirement to register for life was an

additional punishment that violated our state’s ex post facto prohibition as applied to

Jensen, whose crimes were committed before our SORA was amended to require the

lifetime registration extension. Id. at 396-99.

       Here, the State seeks to enforce our SORA’s requirement to register on Burton

because he is required to register in Illinois. Burton relies on Wallace and argues that it

would violate the ex post facto provision of our state constitution to compel him to

register under Indiana’s SORA when there was no statute in Illinois or Indiana requiring

registration when he committed his offense.

       In response, the State argues as follows:

       1.) this case is more like Jensen than Wallace because Burton was already under a

requirement to register in Illinois and the requirement to register in Indiana imposes no

additional burden on him;

       2.) it is Burton’s 2007 conviction in Illinois for the sex offender registration

violation rather than his original sex offense conviction that is the predicate for his

requirement to register in Illinois, and that conviction came after both states had

registration requirements applicable to Burton;

       3.) the application of the Illinois registration statute to Burton is not an ex post

facto violation under the Illinois Constitution and, under principles of Full Faith and

                                              5
Credit and comity, Indiana should accept Burton’s requirement to register in Illinois as a

predicate to apply our SORA to him and compel him to register; and

        4.) public policy considerations dictate that we not make Indiana a “haven” for

offenders similarly situated as Burton.

         We address each of the State’s arguments in turn. First, the State argues that this

case is more like Jensen than Wallace because Burton was already under an obligation to

register in Illinois when he came to Indiana and the requirement to register in Indiana

thus imposes no additional burden on him. There is, however, a significant difference in

this case from Jensen. In Jensen, there was in effect at the time of his offense a

requirement to register. Thus, the initial requirement did not violate the ex post facto

prohibition under our constitution. Here, the initial requirement to register was an ex post

facto violation under our constitution. That difference brings this case under Wallace,

not Jensen.1

        We conclude that the analysis and holding in Wallace apply to this case. We are

deciding whether the ex post facto provision of the Indiana Constitution prevents the

application of Indiana’s SORA to require Burton, a resident of Indiana, to register as a

1
  The State also cites Herron v. State, 918 N.E.2d 682 (Ind. Ct. App. 2009). Herron had been convicted
of sexual offenses in Arizona in 1984. Pursuant to a 1983 Arizona statute, Herron was required to register
as a sex offender for his lifetime. He subsequently moved to Indiana, and the county sheriff contacted
him requesting that he register as a sex offender. He filed a petition with the trial court alleging that he
was not required to register as a sex offender in Indiana, which the trial court denied. On appeal, this
Court did not address Herron’s claim of an ex post facto violation due to his waiver of the issue, but
noted, in dicta, that imposing upon Herron a lifetime obligation to register in Indiana did not violate the
ex post facto clause of our state constitution because he was already required by Arizona to register at the
time he committed the offense. The dicta did not include any discussion of any significance of the fact
that Herron’s conviction was prior to the enactment of our registration statute.

                                                     6
sex offender on the ground that he is required to register in Illinois as a consequence of

having been convicted in Illinois of a sex offense prior to the enactment of both the

statutes of Illinois and Indiana that required registration. 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 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.

        The State also contends that Burton’s obligation to register as a sex offender under

our SORA does not violate our state’s ex post facto prohibition because it stems purely

from his 2007 Illinois conviction of failure to register. Although Illinois had not enacted

its sex offender registration act at the time of Burton’s crime, by 1996 it had amended its

act to require Burton to register for a period of ten years. See 730 ILCS 150/7 (West

1996). He was then convicted in 2003 and 2007 in Illinois for failure to register, and,

pursuant to Illinois law, the ten year registration period started over after each violation

and began running from the first date of registration after the last violation. See id. Thus,

upon moving to Indiana, Burton was still subject to registration requirements in Illinois.2



2
 The requirement to register by reason of a sex offense committed before the enactment of a sex offender
registration statute does not violate the Ex Post Facto Clause of the United States Constitution or the ex
post facto prohibition contained in the Illinois Constitution. See Smith v. Doe, 538 U.S. 84, 105-06, 123
S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (concluding that the registration requirement could be applied
retroactively without violating the Ex Post Facto Clause of the U.S. Constitution); People v. Cornelius,
821 N.E.2d 288, 306-07 (Ill. 2004) (stating that Illinois ex post facto clause provides no greater protection
                                                     7
        In support of its argument that Burton’s registration requirement in Indiana stems

from his 2007 Illinois conviction of failure to register, the State cites Indiana Code

section 11-8-8-5(b)(1) (2006), which stated that the term “sex offender” includes a person

who is required to register as a sex offender in any jurisdiction. Thus, the State concludes

that, pursuant to this statute, at the time Burton moved to Indiana some time after his

2007 Illinois conviction he was considered a sex offender in Indiana because he was

required to register in another jurisdiction (i.e., Illinois). The lynchpin of the State’s

argument is that these Indiana statutes were enacted in 2006, prior to Burton’s 2007

Illinois conviction of failure to register, thereby negating any ex post facto argument.

        We cannot agree.         Burton’s current registration requirement in Illinois is an

extension of the registration requirement imposed upon him in 1996 by virtue of his 1987

conviction. The State’s argument gives no force to the fundamental fact that, but for his

1987 conviction, Burton would not be subject to any requirement to register.                          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. See, e.g., Pollard, 908 N.E.2d at 1148-

49 (noting that ex post facto prohibition forbids enactment of any law which imposes

than that offered by United States Constitution and holding that Illinois registration requirement did not
violate ex post facto provision of the Illinois Constitution).
                                                    8
punishment for act which was not punishable at time it was committed, or imposes

additional punishment) (quoting Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67

L. Ed. 2d 17 (1981)).

       The State also claims that it would be a violation of the Full Faith and Credit

Clause of the U.S. Constitution if we are “permitted to second-guess Illinois’s valid

determination that [Burton] must register as a sex offender.” Appellee’s Br. p. 15. The

Full Faith and Credit Clause provides: “Full Faith and Credit shall be given in each State

to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const.

art. IV, § 1. The Full Faith and Credit Clause is not implicated here. The requirement by

Illinois under its law that Burton register as a sex offender in Illinois is no more than that;

it is not a requirement to register anywhere else. Nor is it a judgment for money obtained

in one state and presented as a claim in another state as in Morris v. Jones, 329 U.S. 545,

551, 67 S. Ct. 451, 91 L. Ed. 488 (1947), the case cited by the State in support of its

argument. Rather, our issue is whether to require Burton to register in Indiana under

Indiana law. Our decision has no effect on the enforcement of the Illinois requirement.

The fact that Burton’s crime was committed in Illinois does not deprive him of the

protection of Indiana’s constitution while he is in Indiana.

       Finally, the State argues that public policy should lead us to require registration by

Burton, because if we do not, Indiana will become a “haven” for offenders like Burton.

Any haven would be only for those who, under our constitution, could not be compelled

to register in violation of our state’s prohibition of ex post facto laws. The State does not,

                                              9
and we cannot, quantify the number of such potential relocators to Indiana. Whatever the

number, it will lessen as time passes. Indiana’s SORA was enacted in 1994, and other

states have registration laws that were enacted earlier. We are dealing only with those

offenders who committed crimes in states which had no registration requirements at the

time of the offenses. The concern of the State does not outweigh the value of enforcing

our constitution in the application of our registration statute.

                                       CONCLUSION

       For the reasons stated, we reverse the trial court and remand with instructions to

grant Burton’s motion to dismiss.

       Reversed and remanded with instructions.

MAY, J., and BARNES, J., concur.




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