                                                                   Jun 17 2015, 7:58 am




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                       Gregory F. Zoeller
LeBlanc & Mulholland, LLC                                   Attorney General of Indiana
Crown Point, Indiana
                                                            Kenneth E. Biggins
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin A. Ammons,                                            June 17, 2015

Appellant-Defendant,                                        Court of Appeals Cause No.
                                                            45A03-1411-CR-394
        v.                                                  Appeal from the Lake Superior
                                                            Court.

State of Indiana,                                           The Honorable Diane Ross Boswell,
                                                            Judge.
Appellee-Plaintiff.
                                                            Cause No. 45G03-8811-CF-217




Riley, Judge.




Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015                 Page 1 of 22
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Kevin A. Ammons (Ammons), appeals the denial of his

      petition to remove his designation as a sexually violent predator (SVP) and the

      accompanying requirement that he register as a sex offender for life.


[2]   We affirm.


                                                      ISSUE

[3]   Ammons raises one issue on appeal which we restate as: Whether the trial

      court erred in denying his petition to remove his SVP designation.


                            FACTS AND PROCEDURAL HISTORY

[4]   The relevant facts are not in dispute. On November 10, 1988, Ammons was

      charged with one Count of child molesting, a Class A felony. After a trial by

      jury in November 1989, Ammons was convicted and was sentenced to thirty-

      five years in the Department of Correction (DOC) with 371 days of credit. In

      November 2006, Ammons was released to parole, and soon thereafter, he

      registered as sex offender with the Lake County Sheriff’s Department, in

      Indiana. Ammons satisfactorily completed his parole in 2007. In March 2009,

      Ammons moved to Iowa. As an Iowa resident, Ammons was required to

      register as sex offender for ten years from the date he completed his parole. In

      2011, the State of Iowa charged Ammons for failing to register as a sex

      offender. Ammons pled guilty and he served eleven months of supervised

      probation. Ammons continued to reside in Iowa until September 2013 when he

      relocated to Indiana.

      Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 2 of 22
[5]   On February 19, 2014, the Lake County Sheriff’s Department notified Ammons

      in writing that he was required to register as a SVP. On February 27, 2014,

      Ammons filed a pro se verified petition for removal from the Registry pursuant

      to Indiana Code Section 11-8-8-22,1 claiming that the Indiana Sex Offender

      Registration Act (the Act) as applied to him violated the ex post facto clause of

      the Indiana Constitution because he had committed the sex offense before the

      Act became effective. The Lake County Prosecutors’ office2 responded to

      Ammons’ petition stating in part that “there are no legal grounds on which to

      object.” (Appellant’s App. p. 21). The trial court granted Ammons’ petition on

      March 24, 2014. On April 16, 2014, the State filed a motion to correct error

      asking the trial court to set aside its Order and set a hearing date. On May 6,

      2014, the trial court vacated its initial Order and set an evidentiary hearing date

      for May 28, 2014. At the hearing, the trial court took judicial notice of

      Ammons’ trial transcript, heard arguments from both sides, and after both

      parties had filed their briefs, it took the matter under advisement. On October




      1
       Ind. Code § 11-8-8-22 (c) governs petitions to remove designations or to register under less restrictive
      conditions. After receiving a petition under this section, the court may: (1) summarily dismiss the petition;
      or (2) give notice to [various entities] and set the matter for hearing.” I.C. § 11-8-8-22(d).
      2
        The record shows that the Lake County Prosecutor’s office later requested the State to appear and respond
      to Ammons petition.

      Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015                         Page 3 of 22
      15, 2014, the trial court denied Ammons’ petition to be removed from the

      Registry and subsequently directed Ammons to register as a SVP.


[6]   Ammons now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                 I. Indiana Sex Offender Registration Act

[7]   We first determine the applicable statutory framework before turning to

      Ammons’ contention on appeal.


[8]   As way of background, in the wake of a convicted sex offender molesting and

      murdering ten-year-old Zachary Snider, the Indiana General Assembly passed

      the Act in March 2, 1994. Ind. P.L. No. 11–1994, § 7 (eff. July 1, 1994)

      (codified at Ind.Code §§ 5-2-12-1 to 5-2-12-13) (current version at I.C. §§ 11-8-8-

      1 to 11-8-8-22). “Originally the duty to register was prospective only, and

      terminated when the offender was no longer on probation or discharged from

      parole.” Wallace v. State, 905 N.E.2d, 371,375 (Ind. 2009) (citing I.C. § 5-2-12-

      13 (1994)), reh’g denied. As originally drafted, an individual who committed one

      of eight offenses—including child molesting where the victim was less than

      eighteen years old—was required to register with law enforcement agencies for

      a set period of time. I.C. §§ 5-2-12-4;-5 (1994).


[9]   Since its inception in 1994, the Act has been amended several times, and

      actively expanded “in both breadth and scope.” Wallace, 905 N.E.2d at 375. In

      Hollen v. State, 994 N.E.2d 1166, 1175 (Ind. Ct. App. 2013), we reviewed the

      Act’s framework as follows:
      Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 4 of 22
        In 1995 the duty to register expanded to ten years after the date the
        offender was released from prison, placed on parole, or placed on
        probation, whichever occurred last. In 1998, the legislature defined a
        “sexually violent predator” as “an individual who suffers from a
        mental abnormality or personality disorder that makes the individual
        likely to repeatedly engage in any of the offenses described in section 4
        of this chapter.” Ind. Code § 5-2-12-4.5 (1998); P.L. No. 56-1998, § 7
        (eff. July 1, 1998). That same year, the legislature amended Ind. Code
        § 35-38-1-7.5(c) to provide that “[a]t the sentencing hearing, the court
        shall determine whether the person is a [SVP]. Before making a
        determination under this section, the court shall consult with a board
        of experts consisting of two (2) board certified psychologists or
        psychiatrists who have expertise in criminal behavioral disorders.” See
        Pub. L. No. 56-1988, § 17 (eff. July 1, 1998). In 2003, the legislature
        amended Ind. Code § 5-2-12-13 to provide that “[a]n offender who is
        found to be a [SVP] by a court under [Ind. Code] § 35-38-1-7.5(b) is
        required to register for life.” P. L. No. 222-2003, § 1 (eff. July 1,
        2003).3 In 2007, the legislature amended Ind. Code § 35-38-1-7.5(b) to
        provide that “a person is a [SVP] by operation of law if an offense
        committed by the person satisfies the conditions set forth in
        subdivision (1) or (2) and the person was released from incarceration,




3
  We note that Hollen court left out the 2006 Amendment. Effective July 1, 2006, the legislature amended the
Act requiring lifetime registration for a defendant whose offense qualifies the defendant as a “[SVP]”. Ind.
Code § 11-8-8-19 (2006). Child molesting—one of the offenses to which Ammons convicted of—falls within
that category. Ind. Code § 35-38-1-7.5(b) (2006). We further note that in 2006, the definition of SVP
contained no limitation on the date of a conviction that could qualify an offender for the designation. See
Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009).

Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015                       Page 5 of 22
               secure detention, or probation for the offense after June 30, 1994.”
               P.L. No. 216–2007, § 37 (eff. May 10, 2007).




[10]   Based on the plain language of Indiana Code section 35-38-1-7.5(b), we

       conclude that the Act applies retroactively to Ammons. Specifically, because

       Ammons was convicted of child molesting as a Class A felony—one of the

       qualifying offenses listed in I.C. § 11-8-8-5—and because he was released from

       incarceration after June 30, 1994, the statute provides that his status is a SVP by

       operation of law and he must register. This notwithstanding, however,

       Ammons’ classification as a SVP by operation of law requiring registration is

       only valid if application of the Act does not violate applicable provisions of

       constitutional law.


                                            II. Ex Post Facto Claim

[11]   Ammons contends that his classification as a SVP violates the Ex Post Facto

       Clause under the Indiana and United State Constitutions. Responding to

       Ammons’ claim, the State argues that the event triggering Ammons

       requirement to register as a sex offender in Indiana was not when he committed

       the underlying crimes in 1988, but when he returned to Indiana in 2013. The

       State specifically argues that “[b]y reclaiming his Indiana citizenship, Ammons

       voluntarily assented to Indiana law in effect in 2013.” (Appellee’s Br. p. 6).

       The State further contends that the correct date to analyze Ammons’ ex post facto

       claim is December 2013. We disagree. As this court noted in Burton v. State,

       977 N.E.2d 1004, 1009 (Ind. Ct. App. 2012), trans. denied, “[o]f importance in

       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015      Page 6 of 22
       determining whether [the Act] 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

       [the Act].”


[12]   Turning to Ammons’ arguments regarding whether his registration and status

       as an SVP violate the prohibition against ex post facto laws in the Indiana

       Constitution and the United States Constitution, we observe that Article I, § 10

       of the United States Constitution prohibits the States from enacting laws with

       certain retroactive effects. Minton v. State, 802 N.E.2d 929, 933 (Ind. Ct. App.

       2004), trans. denied. Similarly, the Indiana Constitution provides, “[N]o ex post

       facto law . . . shall ever be passed.” IND. CONST. art. I, § 24. The ex post facto

       prohibition forbids any law that imposes a punishment for an act that was not

       punishable at the time it was committed, or imposes additional punishment to

       the punishment then prescribed. Wallace, 905 N.E.2d at 377. “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 that conduct which will give rise to

       criminal penalties.” Id.; see also Blakemore v. State, 925 N.E.2d 759, 761 (Ind. Ct.

       App. 2010).


[13]   When we evaluate an ex post facto claim under the Indiana Constitution, our

       courts apply the “intent-effects” test. Wallace, 905 N.E.2d at 378. First, we

       examine “what type of scheme” the General Assembly intended the Act to

       establish. Id. Our supreme court has held that “in passing the Act ‘the

       legislature’s intent was to create a civil, non-punitive, regulatory scheme.’”

       State v. Pollard, 908 N.E.2d 1145, 1150 (Ind. 2009); see also Wallace, 905 N.E.2d
       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 7 of 22
       at 379. We must therefore consider whether the effects of the Act, as applied to

       Ammons, “are so punitive in nature as to constitute a criminal penalty.” See

       Gonzalez v. State, 980 N.E.2d 312, 317 (Ind. 2013) (citing Wallace, 905 N.E.2d at

       378).


[14]   In evaluating a statute’s effects, our supreme court has adopted a seven-factor

       test—the Mendoza-Martinez test—for determining whether a law is an

       unconstitutional ex post facto law: “(1) whether the sanction involves an

       affirmative disability or restraint; (2) whether it has historically been regarded as

       punishment; (3) whether it comes into play only on a finding of scienter; (4)

       whether it promotes the traditional aims of punishment—retribution and

       deterrence; (5) whether the behavior to which it applies is already a crime; (6)

       whether it has a rational alternative purpose; and (7) whether it is excessive in

       relation to the alternative purpose assigned.” Wallace, 905 N.E.2d at 379.

       (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). No one factor is

       outcome determinative, and “our task is not simply to count the factors on each

       side, but to weigh them.” Id. We address each factor in turn.


                                      1. Affirmative Disability or Restraint

[15]   The first of the Mendoza-Martinez factors considers whether the sanction

       involves an affirmative disability or restraint. The Gonzalez court noted that the

       Act “imposes significant affirmative obligations and a severe stigma on those to

       whom it applies.” Gonzalez, 980 N.E.2d at 317. The court further noted that an

       offender must provide a wide array of personal information that is made public,

       must register in person with local law enforcement and have his photograph
       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 8 of 22
       taken annually, must re-register on changes in residential or employment status,

       and he must carry valid identification at all times, among other requirements.

       Id. In addition, the Gonzalez court found “extension of such intrusive

       registration obligations to a lifetime requirement is an additional affirmative

       restraint which weighs in favor of treating the effects of [the Act] as punitive.”

       Id.


[16]   Ammons committed the child molesting offense in 1988; registration for the

       offense was not even required until July 1, 1994. In November 2006, Ammons

       was released from the DOC. At the time, the legislature had amended the Act

       such that a defendant who committed an offense qualifying the defendant as a

       “sexually violent predator” under I.C. § 11-8-8-19 must register for life. When

       Ammons committed the 1988 child molesting offense, he had not received fair

       warning that his conduct would give rise to having to register as a sex offender,

       let alone register for life. See Wallace 905 N.E.2d at 384. Considered as a

       whole, the Act imposes substantial affirmative disabilities and restraints on

       Ammons, and this first factor clearly favors treating the effects of the Act as

       punitive when applied to him.


                    2. Sanctions that Have Historically Been Considered Punishment

[17]   The Gonzalez court found the next factor, whether the sanction has historically

       been regarded as a punishment, also weighed in favor of punitive treatment.

       Gonzalez , 980 N.E.2d at 318. It noted that the dissemination and widespread

       availability of offenders’ personal information has been found to resemble the

       historical punishment of “shaming,” and by extending the duration of the
       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 9 of 22
       registration requirement from ten years to life, the Act has the effect of

       increasing shame on the defendant. Id. at 317-18. Here, we find that this factor

       weighs the same way for Ammons.


                                                3. Finding Scienter4

[18]   The third factor is whether the statute comes into play only on a finding of

       scienter. Id. “The existence of a scienter requirement is customarily an

       important element in distinguishing criminal from civil statutes.” Wallace, 905

       N.E.2d at 381. We focus on whether the sanction is linked to a showing of

       mens rea; if it is, it is more likely to be considered punishment. Id. As our

       supreme court observed in Wallace, the Act “overwhelmingly applies to offenses

       that require a finding of scienter for there to be a conviction.” Id. In this case

       however, Ammons qualifying offense is one of the few offenses included in the

       Act for which there is no scienter requirement. Id. at n. 11; see I.C. § 35-42-4-3

       (2013) (no scienter requirement for the offense of child molesting where there is

       sexual intercourse or deviate sexual conduct with a child under the age of

       fourteen). Thus, this factor is not punitive as applied to Ammons.




       4
         The term scienter is Latin for “knowingly” and is defined as “[a] degree of knowledge that makes a person
       legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1463 (9th ed.
       2009).

       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015                       Page 10 of 22
                                  4. The Traditional Aims of Punishment

[19]   We next ask “whether [the Act’s] operation will promote the traditional aims of

       punishment—retribution and deterrence.” Mendoza–Martinez, 372 U.S. at 168.

       The underlying assumption is that if the statute promotes the traditional aims of

       punishment, the statute is more likely punitive than regulatory. First, we

       observe that under the Indiana Constitution the primary objective of

       punishment is rehabilitation, not retribution. “The penal code shall be founded

       on the principles of reformation, and not of vindictive justice.” IND. CONST.

       art. I, § 18. Second, in addition to deterrence there are other objectives,

       including the need to protect the community by sequestration of the offender

       and community condemnation of the offender. Wallace, 905 N.E.2d at 381.


[20]   It is true that to some extent, the deterrent effect of the registration and

       notification provisions of the Act is merely incidental to its regulatory function.

       Wallace, 905 N.E.2d at 381. And we have no reason to believe the Legislature

       passed the Act for purposes of retribution—“vengeance for its own sake.” Id.

       Nonetheless it strains credulity to suppose that the Act’s deterrent effect is not

       substantial, or that the Act does not promote “community condemnation of the

       offender,” both of which are included in the traditional aims of punishment.

       Abercrombie v. State, 441 N.E.2d 442, 444 (Ind. 1982). Here, we conclude that

       the fourth Mendoza–Martinez factor slightly favors treating the effects of the Act

       as punitive when applied to Ammons.




       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 11 of 22
                                 5. Application Only to Criminal Behavior

[21]   Under the fifth factor we consider “whether the behavior to which [the Act]

       applies is already a crime.” Mendoza–Martinez, 372 U.S. at 168. The fact that a

       statute applies only to behavior that is already, and exclusively, criminal

       supports a conclusion that its effects are punitive. Wallace, 905 N.E.2d at 382.

       Although the registration requirement is triggered exclusively by criminal

       behavior, Ammons’ offense, child molestation, was not a registration-triggering

       offense at the time of its commission in 1988. In this regard, we conclude that

       the factor supports the conclusion that the Act is punitive in effect as to

       Ammons.


                                    6. Advancing a Non-Punitive Interest

[22]   We next ask whether, in the words of our supreme court, “an alternative

       purpose to which [the Act] may rationally be connected is assignable for it.”

       Mendoza–Martinez, 372 U.S. at 168-69. This statement is best translated as an

       inquiry into whether the Act advances a legitimate regulatory purpose. Wallace,

       905 N.E.2d at 383. Because the Act advances the legitimate regulatory purpose

       of protecting the public from repeat sexual crime offenders, our cases have

       consistently treated this factor as non-punitive. Gonzalez, 980 N.E.2d at 319.

       Likewise, here, this factor weighs in favor of treating the effects of the Act as

       non-punitive. See id.




       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 12 of 22
                           7. Excessiveness in Relation to Articulated Purpose

[23]   Consideration of the seventh factor, i.e. whether the Act “appears excessive in

       relation to the alternative purpose assigned,” centers on whether a registered

       sex offender “can petition the court for relief from the obligation of continued

       registration and disclosure.” See Gonzalez, 980 N.E.2d at 319.


[24]   In Wallace, our supreme court recognized that the Act imposes “significant

       affirmative obligations and a severe stigma on every person to whom it applies”

       and “exposes registrants to profound humiliation and community-wide

       ostracism.” Wallace, 905 N.E.2d at 379-80. Mindful of such onerous effects,

       the court highlighted a deficiency of the Act as it then existed, observing:

               In this jurisdiction the Act makes information on all sex offenders
               available to the general public without restriction and without regard
               to whether the individual poses any particular future risk. Indeed we
               think it significant for this excessiveness inquiry that the Act provides
               no mechanism by which a registered sex offender can petition the
               court for relief from the obligation of continued registration and
               disclosure. Offenders cannot shorten their registration or notification
               period, even on the clearest proof of rehabilitation.


       Id. at 384. On the same day that it handed down Wallace, our supreme court

       handed down Jensen, a plurality decision supporting the proposition that

       portions of the Act requiring lifetime registration may be applied retroactively if

       the offender was already required to register at the time of his offense. Jensen,

       905 N.E.2d at 394. In Jensen, under the terms of the Act at the time of Jensen’s

       sentencing, he was required to report and register as a sex offender for a period

       of ten years. Id. at 389. After his release from prison and probation, Jensen

       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015       Page 13 of 22
       annually reported and registered as a sex offender. Id. During the ten-year

       reporting period, the local sex offender registration coordinator contacted

       Jensen and informed him that, due to an amendment of the Act, Jensen would

       have to register for life as a SVP. Id. Jensen filed a motion with the trial court

       to determine his registration status. Id. The trial court found Jensen to be a

       SVP who must register for life. Id.


[25]   Jensen appealed the trial court’s decision, and a panel of this court found that

       the application of the amendment to the Act violated state ex post facto

       considerations as applied to Jensen. Jensen v. State, 878 N.E.2d 400, 403 (Ind.

       Ct. App. 2007), trans. granted. On transfer, our Supreme Court, using the

       intents-effects test, determined that the amendment to the Act as applied to

       Jensen was not punitive in nature, and thus did not run afoul of ex post facto

       considerations. Jensen, 905 N.E.2d at 394. See also Lemmon v. Harris, 949

       N.E.2d 803, 812–13 (Ind. 2011) (applying Jensen and concluding that a SVP

       designation with lifetime registration requirements did not violate the ex post

       facto clause).


[26]   After the supreme court’s decision in both Wallace and Jensen, the General

       Assembly responded by amending Indiana Code Section 11-8-8-22 (governing

       sex offender registration) to address a mechanism by which a SVP can petition

       the court for relief from the obligation of continued registration and disclosure.

       By comparison, Indiana Code Section 35–38–1–7.5 (g) (governing findings

       regarding sexually violent predators) grants relief to SVPs who can demonstrate

       that they are no longer likely to reoffend. We understand the wording of
       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 14 of 22
       Indiana Code Section 35–38–1–7.5(g) to provide offenders with an alternate

       path to remove their SVP status by showing that they are no longer likely to

       reoffend.


[27]   As stated in the foregoing, SVP requirements were amended in 2006 and 2007.

       The statutes now provide that offenders who commit certain specified crimes

       are automatically classified as SVP. See Ind. Code § 35–38–1–7.5(b). Ammons

       was convicted of child molesting and was released from incarceration after June

       30, 1994, and thus, under the 2007 Amendment, is a SVP by operation of law.

       However, following the reasoning of the Jensen court, we find that Indiana

       Code section 35-38-1-7.5(g) allowing for an individualized determination based

       on the likelihood to reoffend after an offender’s original ten-year registration

       requirement is up, makes the Act seem even less punitive as applied to

       Ammons. In sum, we find that on this seventh factor, the Act leans towards

       treating the Act as non-punitive as applied to Ammons.


                                             II. Balancing the Factors

[28]   Turning to the Mendoza- Martinez factors, we are mindful that our task in

       applying the factors is not simply to count the factors on each side, but to weigh

       them. Gonzalez, 980 N.E.2d at 317. Furthermore, as this court found in

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

       “accorded special weight” to the seventh factor of whether a sanction appears

       excessive in relation to the alternative purpose assigned to it.




       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 15 of 22
[29]   Ammons maintains that his “name could be substituted for [] Wallace’s name

       in the supreme court analysis.” (Appellant’s Br. p. 8). In Wallace, the Indiana

       supreme court held that the application of the Act to persons whose crimes

       were committed before the Act’s 1994 enactment was unconstitutional as an ex

       post facto law. See id. at 374-75. In applying the above mentioned factors, the

       Wallace court concluded that only factor number six—advancing a non-punitive

       interest—favored treating the registration requirement as non-punitive. “The

       remaining factors, particularly the factor of excessiveness, point[ed] in the other

       direction.” Id. at 384. In this regard, the Wallace court concluded that “as

       applied to Wallace, the Act violates the prohibition on ex post facto laws

       contained in the Indiana Constitution because it imposes burdens that have the

       effect of adding punishment beyond that which could have been imposed when

       his crime was committed.” Id. at 384.


[30]   As discussed above, we concluded that factor one, two, four, and five of the

       Mendoza-Martinez factors were punitive as applied to Ammons. The remaining

       factors leaned towards treating the Act as non-punitive. As this court found in

       Flanders we accord great weight to the seventh factor of whether a sanction

       appears excessive in relation to the alternative purpose assigned to it. Although

       Ammons argues that his case is more comparable to Wallace, our review of the

       seventh factor, yields a different result. In Wallace, it was significant that the

       Act provided no mechanism by which a SVP can petition the court for relief

       from the obligation of continued registration and disclosure; nor shorten their




       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 16 of 22
       registration or notification period, even on the clearest proof of rehabilitation.

       Wallace, 905 N.E.2d at 384.


[31]   As we noted above, effective July 1, 2006, the legislature amended the Act

       requiring lifetime registration for a defendant whose offense qualifies the

       defendant as a SVP. Ind. Code § 11-8-8-19 (2006). Child molesting is a

       registration-triggering offense and our courts have consistently held that the Act

       advances a legitimate regulatory purpose to protect the public from repeat sex

       offenders, and most important—in light of the seventh factor—Ammons may

       petition the trial court in the future for review of his dangerousness and

       rehabilitation status at that time. See I.C. § 35-38-1-7.5(g); Lemmon, 949 N.E.2d

       812-13.


[32]   Like Jensen, and unlike Wallace, Ammons can avail himself of Indiana Code

       section 35-38-1-7.5(g), by predicating his request for relief on the grounds that

       he has been rehabilitated and presents no risk to the public. Moreover, our

       supreme court found in both Jensen and Lemmon that the seventh factor was

       non-punitive, and in light of that fact, the defendants in those cases had not

       carried their burden of demonstrating that as applied to them, the Act violates

       the Ex Post Facto Clause. While several of the factors lean toward treating the

       Act as punitive as applied to Ammons, our determination must be governed by

       the majority opinions in Lemmon and Jensen. Wallace does not compel reversal

       of the trial court’s denial of Ammons’ petition to remove his designation as a

       SVP.



       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 17 of 22
                                                 CONCLUSION


[33]   In light of the foregoing, we conclude that Ammons has not carried his burden

       of demonstrating that as applied to him the Act violates the Indiana

       constitutional prohibition against ex post facto laws. In this regard, we affirm

       the trial court.


[34]   Affirmed.


[35]   Bailey, J. concurs


[36]   Barnes, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion | 45A03-1411-CR-394 | June 17, 2015   Page 18 of 22
       Kevin A. Ammons,                                           Court of Appeals Case No.
                                                                  45A03-1411-CR-394
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, dissenting.

[37]   I respectfully dissent. I do not believe that requiring Ammons to register as a

       sex offender is consistent with the Indiana Constitution’s Ex Post Facto Clause

       as interpreted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind.

       2009). As such, I conclude that the trial court should have granted Ammons’s

       petition to be removed from Indiana’s sex offender registry.


[38]   Although the majority proceeds to analyze Ammons’s registration requirement

       under the full seven-part “intent-effects” test for Ex Post Facto claims, I do not

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       believe it is necessary to do so, nor did either of the parties do so in their briefs.

       Ammons’s 2011 Iowa conviction for failing to register as a sex offender was

       based upon his 1988 Indiana conviction for child molesting. Putting aside the

       question of the effect of the Iowa conviction for the moment, Ammons’s 1988

       conviction, six years before enactment of Indiana’s sex offender registry, places

       him on all fours with Wallace’s holding. No further analysis in that regard is

       required, I believe. The majority cites in part Indiana Code Section 35-38-1-

       7.5(g)’s provision for petitioning for removal of a sexually violent predator

       determination as distinguishing this case from Wallace. However, this statutory

       provision was already in effect in 2009 and noted by the Wallace court, and it

       did not alter its analysis and conclusion that requiring a defendant to be placed

       on the sex offender registry for a crime committed prior to the registry’s

       creation violates the Indiana Constitution’s Ex Post Facto Clause. See Wallace,

       905 N.E.2d at 384 n.14. I would also note that although the majority cites the

       addition of Indiana Code Section 11-8-8-22 and its procedures for removal from

       the sex offender registry, that statute was enacted for the purpose of addressing

       Ex Post Facto claims such as Ammons’s and is not an independent basis for

       removal from the registry. See Gonzalez v. State, 980 N.E.2d 312, 320 (Ind.

       2013).


[39]   Additionally, I disagree with the majority that this case is like Jensen v. State,

       905 N.E.2d 384 (Ind. 2009). In that case, the court held that there was no Ex

       Post Facto violation with respect to a defendant who committed a crime

       requiring registration after the registration’s enactment, but the legislature


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       subsequently amended the registration requirements to make them more

       onerous. Jensen, 905 N.E.2d at 394. Here, however, Ammons committed his

       crime before there was any registration requirement, which puts him squarely

       within Wallace and not Jensen.


[40]   The wrinkle in this case, of course, is that Ammons was convicted of failing to

       register as a sex offender in Iowa after the Indiana registry was created and

       before he moved back to Indiana—which conviction ordinarily would require

       registration in Indiana. But that Iowa conviction “piggybacked” upon

       Ammons’s pre-registry offense in Indiana. The majority seems to agree with

       Ammons—as do I—that for purposes of an Ex Post Facto analysis, the relevant

       date here is 1988—the year of Ammons’s original Indiana conviction—and not

       2013, when he moved back to Indiana. The majority also cites Burton v. State,

       977 N.E.2d 1004 (Ind. Ct. App. 2012), trans. denied. In that case, the defendant

       committed a sex crime in Illinois in 1987, before there was a sex offender

       registry in either Illinois or Indiana. Later, the defendant was twice convicted

       in Illinois of failing to register as a sex offender; unlike in Indiana, Illinois law

       does not bar retroactive sex offender registry requirements. The defendant then

       moved to Indiana and was charged with failing to register as a sex offender,

       based upon his Illinois convictions for failing to register.


[41]   On appeal, this court held that the defendant while living in Indiana was

       entitled to the protections of the Indiana Constitution and, thus, under Wallace

       he could not be required to register as a sex offender in Indiana, even if he

       could be forced to do so in Illinois. Burton, 977 N.E.2d at 1009. We also noted

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       that, despite the defendant’s Illinois conviction for failing to register as a sex

       offender that was entered after creation of Indiana’s sex offender registry, the

       relevant date for purposes of Wallace was that of the original conviction that led

       to the registry requirement, which occurred prior to the Indiana registry’s

       creation. Id. Although the State asks us to reconsider Burton, I voted to concur

       in that case, and I adhere to that vote. I also believe it is virtually

       indistinguishable from the present case. That is, despite the 2011 Iowa

       conviction for failing to register as a sex offender, that conviction stems from

       Ammons’s pre-registry Indiana conviction for child molesting. And, so long as

       Ammons lives in Indiana, he is entitled to the protections of Indiana’s

       Constitution as interpreted by Wallace.


[42]   Applying Burton and Wallace, I believe requiring Ammons to register as a sex

       offender in Indiana violates the Indiana Constitution. I vote to reverse the

       denial of Ammons’s petition to be removed from the Indiana sex offender

       registry.




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