Bushee v. Sheriff of Johnson Cnty.
| Decision Date | 17 June 2015 |
| Docket Number | No. 41A01–1411–MI–486.,41A01–1411–MI–486. |
| Citation | 35 N.E.3d 674 (Table) |
| Parties | Peter F. BUSHEE, Appellant–Petitioner, v. SHERIFF OF JOHNSON COUNTY, Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
[1] Peter F. Bushee committed sexual offenses against his stepdaughter in Virginia in the mid–1970s and in Vermont in the early 1990s. He pled nolo contendere to the Vermont offenses in 1993 and pled guilty to the Virginia offenses in 1996, receiving a twenty-year sentence for the latter. Indiana's Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that a person who is 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.
[2] In 2013, Virginia released Bushee on parole. He asked to have his parole transferred to Indiana, which occurred immediately upon his release. Bushee was required to register as a sex offender as a condition of his Virginia parole, which expires in 2023. Shortly after Bushee moved to Indiana, the Sheriff of Johnson County (“the Sheriff”) notified him that he was required to register as a sex offender in Indiana. Bushee filed a petition to be released from SORA's registration requirement and removed from the Indiana Sex Offender Registry, which the trial court denied.
[3] On appeal, Bushee contends that the trial court erred in denying his petition because SORA is an unconstitutional ex post facto law as applied to him. We disagree. Bushee had fair warning of SORA's registration requirement before he moved to Indiana, and it imposed no new duty because he was already required to register as a condition of his Virginia parole. Therefore, we affirm.
[4] Bushee was born in 1950. In 1993, he pled nolo contendere in Vermont to three felony counts of sexual assault for offenses committed against his stepdaughter in 1991 and 1992. According to Vermont court documents, he received concurrent sentences of five to twelve years for these crimes. Appellant's App. at 37–38.1 In 1996, Bushee pled guilty in Virginia to three counts of crimes against nature and two counts of taking indecent liberties with children for offenses that were committed against his stepdaughter in the mid1970s. He received an aggregate sentence of twenty years for these crimes. Bushee was incarcerated in Vermont from 1992 through 2000 and then was transferred to the custody of the Virginia Department of Corrections.2
[5] Meanwhile, in 1994 the Indiana legislature enacted SORA, which requires persons convicted of certain offenses to register as sex offenders. Ind.Code 5–2–12 (1994) (now Ind.Code 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)(l). And in 2007 SORA was amended to provide that a person who is 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).3
[6] In July 2013, Bushee was released on parole by the Virginia Department of Corrections. Upon his request, his parole was transferred to Indiana under an interstate compact. See Ind.Code § 11–13–4–1. Immediately after his release, his brother transported him to Greenwood, where he arrived on July 25, 2013.
[7] On July 28, 2013, the Sheriff notified Bushee that he was required to register as a sex offender in Indiana. In September 2013, Bushee filed a petition to be released from SORA's registration requirement and removed from the Indiana Sex Offender Registry pursuant to Indiana Code Section 11–8–8–22, which reads in pertinent part as follows:
In his petition, Bushee essentially asserted that SORA is an unconstitutional ex post facto law as applied to him because “at the time of the offenses there was no [registration] requirement in Indiana, Vermont or Virginia.” Appellant's App. at 27. The trial court summarily denied Bushee's petition without a hearing.
[8] Bushee filed a motion to correct error, which the trial court granted after a hearing. The Sheriff then filed a motion to correct error. The trial court granted the Sheriff's motion and set a hearing on Bushee's petition. Bushee filed a motion for summary judgment. The Sheriff filed a response and a crossmotion for summary judgment. In July 2014, the trial court held a hearing on Bushee's petition. At the hearing, Bushee testified that he was required to register as a sex offender in Indiana pursuant to the conditions of his Virginia parole, which expires in 2023.4 Tr. at 10. Evidence regarding Bushee's registration requirement and the duration of his parole had not been designated by either party on summary judgment.
[9] In August 2014, the trial court issued an order with numerous findings and conclusions denying Bushee's petition. The trial court also issued orders denying Bushee's summary judgment motion and granting the Sheriff's summary judgment motion. Bushee filed a motion to correct error, which was denied. This appeal followed.
[10] Bushee contends that the trial court erred in denying his petition to be released from SORA's registration requirement and removed from Indiana's Sex Offender Registry. We review such rulings for an abuse of discretion. Lucas v. McDonald, 954 N.E.2d 996, 998 (Ind.Ct.App.2011). “A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and inferences supporting the petition for relief.” Id.
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) ).
[12] 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.
[13] We recently addressed a similar challenge by a sex offender who moved from Texas to Indiana in Tyson v. State, 28 N.E.3d 1074 (Ind.Ct.App.2015), reh'g denied. Tyson committed aggravated sexual assault in Texas in 2001 and was adjudicated a delinquent in 2002. Under Texas law, he was required to register as a sex offender from 2002 until 2014. As noted above, “[i]n 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 and was stopped by a Merrillville police officer for an expired license plate in 2012. The officer learned that Tyson was required to register as a sex offender in Texas and that the Take 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.
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