Crowley v. State

Decision Date16 May 2022
Docket Number21A-MI-2064
PartiesTracey William Crowley, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
ATTORNEY FOR APPELLANT A. Robert Masters

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Aaron Thomas Craft Deputy Attorney General

Abigail R. Recker Deputy Attorney General

ALTICE, JUDGE

Case Summary

[¶1] Tracey William Crowley, who was previously convicted in Michigan of a felony sexual offense and registered in Indiana as a sex offender when he moved to Indiana in 2004, appeals the trial court's denial of his petition for removal from Indiana's Sex and Violent Offender Registry. Crowley asserts that Indiana's registration laws as applied to him violate Indiana's ex post facto clause because a registry did not exist at the time of his conviction, either in Indiana or Michigan, and because the requirement that new residents to Indiana who have an out-of-state registration requirement must register with law enforcement upon arrival did not exist when he moved to Indiana.[1]

[¶2] We affirm.

Facts & Procedural History

[¶3] In 1988, when Crowley was twenty years old, he was convicted in Michigan of third-degree criminal sexual conduct, a felony. This offense is defined as sexual penetration between an adult and a person at least thirteen but under sixteen years of age accomplished by force or coercion. Mich. Comp. Laws § 750.520d(1)(b); Appendix at 17. Crowley was sentenced in October 1988 to the State Prison of Southern Michigan for a period of between fifteen and thirty years, with credit for 154 days served.

[¶4] At the time of his conviction, neither Indiana nor Michigan had established a sex offender registry. Six years later, in 1994, both Indiana and Michigan enacted laws requiring persons convicted of certain sex crimes to register as sex offenders with local law enforcement. See Ind. Code chap. 11-8-8 (originally codified as Ind. Code chap. 5-2-12); M.C.L. § 28.721 et seq.[2]

[¶5] Indiana's Sex Offender Registry Act (SORA or the Act) has since been amended many times, including to expand what constitutes a qualifying offense and imposing more requirements on the registrants.[3] Originally, the Act did not require sex offenders convicted in another jurisdiction prior to the Act's June 30, 1994 effective date to register. In 2001, Indiana extended the Act to require those persons convicted in another jurisdiction of a crime "substantially equivalent" to a sex crime in Indiana to register in Indiana. See I.C § 5-2-12-4 (later codified as I.C. §§ 11-8-8-4.5, -5 and now at Ind. Code § 1-1-2-4(b)).

[¶6] Most relevant for our purposes, SORA was amended in 2006 to define a sex offender to include "a person who is required to register as a sex offender in any jurisdiction[.]" I.C § 11-8-8-4.5(b)(1); see also I.C. § 11-8-8-5(b)(1) (same as to sex or violent offender). And in 2007 SORA was amended to provide that "a person who is required to register as a sex or violent offender in any jurisdiction shall register [in Indiana] for the period required by the other jurisdiction or the period described in this section, whichever is longer." I.C. § 11-8-8-19(f).

[¶7] In 2004, Crowley moved to Indiana. Upon moving here, Crowley registered as a sex offender and has continued to do so since his arrival.[4]

[¶8] On February 4, 2021, Crowley filed his petition to be removed from the Sex and Violent Offender Registry (the Registry), arguing that the requirement that he register as a sex offender constitutes ex post facto punishment in violation of the Indiana Constitution because, at the time of his 1988 conviction, there was no registry requirement in either Michigan or Indiana. Crowley relied primarily on Wallace v. State, 905 N.E.2d 371 (Ind. 2009) and Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013).

[¶9] In Wallace, an offender who had pled guilty to child molesting in 1989 and completed his sentence and probation in 1992 - two years prior to the enactment of the Act in 1994 - argued that the Act as applied to him violated Indiana's ex post facto clause. The Wallace Court determined that, in evaluating ex post facto claims under the Indiana Constitution, courts should apply what is known as the "intent-effects test":

Under this test the court must first determine whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, then that ends the inquiry, because punishment results. If however the court concludes the legislature intended a non-punitive, regulatory scheme, then the court must further examine whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what was intended as a civil, regulatory scheme into a criminal penalty.

905 N.E.2d at 378. In assessing whether a civil, regulatory statute was punitive in effect, courts consider seven factors that are weighed against each other:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Id. at 379. The Wallace Court, applying the factors of the intent-effects test, held that the application of Indiana's SORA to Wallace was punitive and violated Indiana's ex post facto clause.

[¶10] Four years later, the Gonzalez Court addressed the ex post facto claim of an offender whose registration requirement had increased from ten years to a lifetime requirement. At the time of Gonzalez's 1997 conviction, the Act required him to register for ten years, but during his ten-year registration period, the legislature amended the registration requirement to require one to register for life. The Court, applying the seven-factor intent-effects test, determined that retroactive application of the lifetime registration to Gonzalez was punitive and violated Indiana's ex post facto clause. 980 N.E.2d at 321.

[¶11] Here, the State moved to dismiss or deny Crowley's petition for removal from the Registry arguing, among other things, that application of the relevant registration laws, and in particular the "other jurisdiction" requirement, to Crowley does not constitute ex post facto punishment. The State relied in large part on a pair of Indiana Supreme Court decisions, Tyson v. State, 51 N.E.3d 88 (Ind. 2016), and State v. Zerbe, 50 N.E.3d 368 (Ind. 2016), which challenged the retroactive application of the Act's 2006-07 "other jurisdiction" requirement that a person with an out-of-state registration requirement must register in Indiana upon arrival.

[¶12] In Tyson, an offender with a 2002 Texas delinquency adjudication for aggravated sexual assault and indecency with a child moved to Indiana in 2009 and was required to register in Indiana, and in Zerbe an offender with a 1992 Michigan conviction for sexual conduct with a minor, who registered in Michigan in 1999 and moved to Indiana in 2012, was required to register in Indiana. The Courts in those cases concluded that the effect of registering in Indiana upon moving here was, effectively, maintaining an out-of-state registration and thus not punitive, regardless of when or where the registrable crime had been committed. The Zerbe Court explained, "it is not Zerbe's crime that triggers his obligation to register as a sex offender in Indiana; rather it is his Michigan registry requirement that does so." 50 N.E.3d at 370.

[¶13] Following a hearing, the trial court issued an order denying Crowley's petition for removal from the registry, finding that "the purpose of the lifetime registration . . . serves a regulatory purpose and is non-punitive" and the requirement "is not a violation of Indiana's ex post facto clause." Appendix at 5. The court issued a Memorandum of Law in further explanation of its decision. The court, citing to the other jurisdiction requirement of I.C. § 11-8-8-19(f), found that "Crowley was required to register as a sex offender for life in Michigan. He was, therefore, required to register for life in Indiana." Id. at 6. The court then applied the Wallace seven-part "intent-effects" test and determined that four of the seven factors point toward the effect of the registration requirement as applied to Crowley being non-punitive and not violative of the ex post facto clause.

[¶14] Crowley now appeals. Additional facts will be provided as needed.

Discussion & Decision

[¶15] Crowley's petition sought relief pursuant to Ind. Code § 11-8-8-22, [5] which, as is relevant here, permits one to seek removal from the registry "on a claim that the application or registration requirements constitute ex post facto punishment." I.C. § 11-8-8-22(j). The petitioner has the burden of proof in a hearing under this section. I.C. § 11-8-8-22(h). When a petitioner claims that the registration requirement violates Indiana's ex post facto clause, as does Crowley here, this court gives no deference to the trial court's decision and instead reviews whether the registration requirement violates the ex post facto clause de novo. Zerbe, 50 N.E.3d at 369; Tyson, 51 N.E.3d at 90.

[¶16] Article 1, section 24 of the Indiana Constitution provides that "[n]o ex post facto law ... shall ever be...

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