State v. Pollard
| Decision Date | 13 May 2008 |
| Docket Number | No. 05A02-0707-CR-640.,05A02-0707-CR-640. |
| Citation | 886 N.E.2d 69 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Anthony W. POLLARD, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
Chris M. Teagle, Muncie, IN, Attorney for Appellee.
The State of Indiana appeals Blackford Superior Court's dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard ("Pollard"). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution.
We affirm.
On April 4, 1997, Pollard was convicted of committing a sex-related offense against a child.1 On the date of his conviction, Pollard owned and resided in a home that was within 1000 feet of a school property, a youth program center, or a public park. At the time of his conviction, he had owned and resided in his home for almost ten years. At the present time, he has resided there with his wife for more than twenty years.
The sex offender residency statute ("residency statute"), Indiana Code section 35-42-4-11, came into effect on July 1, 2006 and prohibits a violent sex offender or sex offender against children from residing within 1000 feet of a school property, a youth program center, or a public park, making a violation of the statute a Class D felony. This statute is part of Indiana's response to the nationwide trend of state by state adoption of "Megan's Law," requiring the registration of sex offenders. Megan's Law is named for laws passed in the wake of the kidnapping, rape, and murder of seven-year-old Megan Kanka, by a repeat violent sex offender in New Jersey.
On January 26, 2007, the State charged Pollard with Class D felony sex offender residency offense. On March 2, 2007, Pollard filed a motion to dismiss. On June 21, 2007, the trial court granted Pollard's motion to dismiss. The trial court determined that Indiana Code section 35-42-4-11 violated the ex post facto prohibition contained in Article 1, section 24 of Indiana's Constitution as applied to Pollard. The trial court reasoned that Pollard has had an ownership interest in his residence for approximately twenty years. At the time of his criminal conviction, he was not required to vacate his residence as part of his sentence or as a consequence of his conviction. The trial court also found that the ex post facto principle applied to criminal proceedings and that the application of Indiana Code section 35-42-4-11 served to retroactively increase the punishment for the crime committed. Therefore the trial court determined that the statute was unconstitutional as applied to "a person who has been an owner and resident of a particular piece of property prior to the adoption of [Indiana Code section] 35-42-4-11." Appellant's App. p. 19. The State appeals.
The facial constitutionality of a statute is a question of law. Foreman v. State, 865 N.E.2d 652, 655 (Ind.Ct.App. 2007), trans. denied. "Where the issue presented on appeal is a pure question of law, we review the matter de novo." State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997). "It is a familiar canon of statutory interpretation that statutes should be interpreted so as to avoid constitutional issues." City of Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind.2006). We have an obligation to construe our statutes, if reasonably possible, in such a way as to render them constitutional. State v. Barker, 809 N.E.2d 312, 317 (Ind.2004). "If a statute can be construed to support its constitutionality, such construction must be adopted." Burris v. State, 642 N.E.2d 961, 968 (Ind.1994).
The State challenges the trial court's conclusion of law that Indiana Code section 35-42-4-11 is an unconstitutional ex post facto law as applied to Pollard.
Under Indiana Code section 35-42-4-11,
(c) An offender against children who knowingly or intentionally:
(1) resides within one thousand (1,000) feet of:
(A) school property, not including property of an institution providing post-secondary education;
(B) a youth program center; or
(C) a public park; or
(2) establishes a residence within one (1) mile of the residence of the victim of the offender's sex offense;
commits a sex offender residency offense, a Class D felony.2
Article 1, Section 24 of the Indiana Constitution states that "no ex post facto law, or law impairing the obligation of contracts, shall ever be passed."3
The State argues that Indiana Code section 35-42-4-11 is not an ex post facto law and that it does not impair Pollard's contractual obligations.4 The State asserts that Pollard is not being charged with conduct that occurred prior to July 1, 2006, when the statute went into effect. Rather, the State contends, Pollard is being charged with continuing to reside in his house after the statute went into effect. The State argues that since Pollard violated the statute after July 1, 2006, he is being punished merely for that violation. However, that punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute.
An ex post facto law applies retroactively and disadvantages an offender's substantial rights. Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.2006). Specifically, a law may not be enacted if it imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment beyond the measure prescribed at the time. Goldsberry v. State, 821 N.E.2d 447, 464 (Ind.Ct. App.2005). This prohibition on ex post facto laws springs from a closely held principle that "persons have a right to fair warning of that conduct which will give rise to criminal penalties" because that principle "is fundamental to our concept of constitutional liberty." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); see also Armstrong, 848 N.E.2d at 1093.
Both the federal and Indiana constitutions contain a prohibition against ex post facto laws and the analysis is the same. Goldsberry, 821 N.E.2d at 464. A review of an allegedly ex post facto law requires a two-part test:
First, we must determine whether the legislature intended the proceedings to be civil or criminal. In making this determination, we may examine the declared purpose of the legislature as well as the structure and design of the statute. If the intent was civil, we must next ask whether the "statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention to deem it civil."
The second part of the test requires the party challenging the statute to provide "the clearest proof" of the punitive purpose or effect of the statute. Thus, in determining whether a sanction is civil or criminal, we cannot look solely to the label given to it by the legislature, but must also examine whether it is so punitive in effect as to no longer be properly called a civil sanction.
Spencer v. O'Connor, 707 N.E.2d 1039, 1042-43 (Ind.Ct.App.1999) (citations omitted) trans. denied. The focus in the analysis is whether the statute "increases the penalty by which a crime is punishable" or "alters the definition of criminal conduct." Goldsberry, 821 N.E.2d at 464 (Ind.Ct. App.2005).
The determination of whether a statute is civil or criminal is a matter of statutory construction. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). We must look to the text and structure of the statute to determine the legislative intent. Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). "A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it." Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
Here, we must first determine whether the General Assembly, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Indiana does not record its legislative history. The text of the residency statute does not explicitly state its legislative purpose; however, the statute provides no civil proceeding whether by way of due process under the Fourteenth Amendment of the U.S. Constitution and Article 1 section 12 of the Indiana Constitution or condemnation of offenders' property interests under the Fifth Amendment of the U.S. Constitution and Article 1 section 21 of the Indiana Constitution that conflict with the statute. On the other hand, the statute creates a new crime that prohibits offenders against children from living within 1000 feet of school property, a youth program center, or a public park.
The State draws our attention to cases involving Indiana's sex offender registration statute that hold that the statute is civil in nature and constituted a regulation that could be applied retroactively. The State argues that the residency statute is analogous to the registration statute and therefore civil in nature. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Spencer v. O'Connor, 707 N.E.2d 1039 (Ind.Ct.App.1999), trans denied. We disagree. As noted above Indiana Code section 35-42-4-11 established a new crime and provides no civil proceedings whatsoever concerning the ownership interests before us. We therefore conclude that the residency statute is a criminal statute.
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