Gonzalez v. State

• Decision Date: 10 January 2013
• Docket Number: No. 45S03–1206–CR–307.,45S03–1206–CR–307.
• Citation: 980 N.E.2d 312
• Parties: Andre GONZALEZ, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Supreme Court

980 N.E.2d 312

Andre GONZALEZ, Appellant (Defendant),

v.STATE of Indiana, Appellee (Plaintiff).

No. 45S03–1206–CR–307.

Supreme Court of Indiana.

Jan. 10, 2013.

Benjamen W. Murphy, Merrillville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 45A03–1108–CR–369

DICKSON, Chief Justice.

After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant's offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution's prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement.

In 1997, the defendant, Andre Gonzalez, pled guilty to Child Solicitation, a class D felony.¹ Ind.Code § 35–42–4–6. The trial court imposed a three-year sentence, with eighteen months incarcerated and eighteen months on probation. Upon discharge from probation in 1999, the defendant was required to register as a sex offender for ten years pursuant to the Sex Offender Registration Act ("Act"). See Ind.Code § 5–2–12–5 (1996). In 2006, the legislature amended the Act to require certain sex offenders, based on the details of their crimes, to register with local law enforcement for life. See, e.g., Ind.Code § 11–8–8–19(c) (requiring lifetime registration if offender over age eighteen and victim under age twelve at time of crime). In 2010, after the defendant had completed ten years of registration, he wrote the trial court, requesting the removal of his registration requirement. On January 27, 2011, the defendant, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11–8–8–22." Appellant's App'x at 34. The trial court denied the petition, and the defendant appealed. The Court of Appeals reversed. Gonzalez v. State, 966 N.E.2d 648 (Ind.Ct.App.2012). The State sought transfer, urging that the decision of the Court of Appeals is inconsistent with precedent. We granted transfer and thus consider the appeal and issues as originally presented to the Court of Appeals. Ind. Appellate Rule 58(A).

In his appeal the defendant contends that, as applied to him, the 2006 amendments to the Act, which belatedly extend his registration requirement from ten years to life, violate the prohibition against ex post facto laws contained in the Indiana Constitution. Ind. Const. art. 1, § 24. Important in the defendant's claim is that there is no opportunity for review of the defendant's future dangerousness or complete rehabilitation. The State asserts that the availability of a review process is irrelevant to the ex post facto determination.

The Indiana Constitution states "No ex post facto law ... shall ever be passed." Id. This provision prohibits, in relevant part, the passage of any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 22 (1981) (quoting Cummings v. Missouri, 71 (4 Wall.) U.S. 277, 325–26, 18 L.Ed. 356, 364 (1867) ) (internal quotation marks omitted). The policy underlying 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." Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992–93, 51 L.Ed.2d 260, 265 (1977) ).²

In evaluating an ex post facto claim under the Indiana Constitution we apply what is commonly known as the "intent-effects" test.³ Wallace v. State, 905 N.E.2d 371, 378 (Ind.2009). Under the first prong of this test, we determine what type of scheme the legislature intended the statute to establish. Id. (citing Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146–47, 155 L.Ed.2d 164, 176 (2003) ). If the legislature's intention was to impose punishment, the inquiry ends and an ex post facto violation is found. If, however, the legislature's intention was regulatory or civil in nature, then the court must move to the second prong of the inquiry to determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty. See id.

First, "it is difficult to determine legislative intent since there is no available legislative history and the Act does not contain a purpose statement." Wallace, 905 N.E.2d at 383 (quoting Spencer v. O'Connor, 707 N.E.2d 1039, 1043 (Ind.Ct.App.1999) ). However, we are aided by the principle that every statute stands before us clothed with the presumption of constitutionality until that presumption is clearly overcome by a contrary showing. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992). The defendant has put forth no evidence of punitive intent on the part of the legislature with respect to the 2006 amendments to the Act. Therefore, as this Court has consistently done, we assume without deciding 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 at 379.

Second, we consider whether the effects of the Act, as applied to the defendant, are so punitive in nature as to constitute a criminal penalty. Wallace, 905 N.E.2d at 378. In evaluating a statute's effects we are guided by the seven factors listed in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, (1963).

[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.

Wallace, 905 N.E.2d at 379 (alterations in original) (quoting Mendoza–Martinez, 372 U.S. at 168–69, 83 S.Ct. at 567–68, 9 L.Ed.2d at 661). No one factor is determinative. We address each factor in turn, noting that "our task is not simply to count the factors on each side, but to weigh them." Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992) ) (internal quotation marks omitted).

1. Affirmative Disability or Restraint

The first factor is "[w]hether the sanction involves an affirmative disability or restraint." Mendoza–Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. We have found that the Act imposes significant affirmative obligations and a severe stigma on those to whom it applies. Lemmon v. Harris, 949 N.E.2d 803, 811 (Ind.2011) [hereinafter Harris ]; Jensen v. State, 905 N.E.2d 384, 391 (Ind.2009) ; Wallace, 905 N.E.2d at 379. The duties on the defendant are significant: he must provide a wide array of personal information which is made public, Ind.Code § 11–8–8–8, must register in person with local law enforcement and have his photograph taken annually, Ind.Code § 11–8–8–14(a), must re-register upon changes in residential or employment status, Ind.Code § 11–8–8–11, and must carry valid identification at all times, Ind.Code § 11–8–8–15, among other requirements.

The State contends that, because the defendant's offense, Child Solicitation, has always been a qualifying sex offense, and because he was already required to register as a sex offender at the time of his discharge from probation, see Ind.Code § 5–2–12–5 (1996), there is no further burden or restraint placed on the defendant aside from a change in the duration of the registration requirement. Appellee's Br. at 7–8. However, this Court has found that an increase to a lifetime registration requirement was a particularly important additional restraint which leans in favor of treating the effects of the Act as punitive. Harris, 949 N.E.2d at 811. Here, we again find that the 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.

2. Sanctions That Have Historically Been Considered Punishment

The next factor, "whether [the sanction] has historically been regarded as a punishment," Mendoza–Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, which involves the dissemination and widespread availability of offenders' personal information, has been found to resemble the historical punishment of "shaming." See Harris, 949 N.E.2d at 811; Jensen, 905 N.E.2d at 392. By extending the duration of the registration requirement from ten years to life, the Act has the effect of increasing shame on the defendant, which weighs in favor of punitive treatment.

3. Finding of Scienter

In applying the third factor, "whether [the statute] comes into play only on a finding of scienter, " Mendoza–Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, our focus is whether the sanction is linked to a showing of mens rea. If so, it is more likely to be considered punishment. Here, the defendant's criminal conviction for Child Solicitation is a prerequisite for registration, and this offense requires a showing of mens rea,⁴ as do the vast majority of offenses to which the...