Jensen v. State
| Decision Date | 30 April 2009 |
| Docket Number | No. 02S04-0803-CR-137.,02S04-0803-CR-137. |
| Citation | 905 N.E.2d 384 |
| Parties | Todd JENSEN, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below). |
| Court | Indiana Supreme Court |
Randall J. Hammond, Randy M. Fisher, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition To Transfer from the Indiana Court of Appeals, No. 02A04-0706-CR-351
In an opinion handed down today we concluded the Indiana Sex Offender Registration Act ("Act"), as applied in that case, violated the prohibition against ex post facto laws contained in the Indiana Constitution. See Wallace v. State, 905 N.E.2d 371 (Ind., 2009). As we explain below the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here.
In 1999, Todd L. Jensen was charged with count one vicarious sexual gratification, as a Class C felony, count two child molesting, as a Class C felony, and count three child molesting as a Class A felony. Under terms of a plea agreement Jensen pleaded guilty to the two Class C felony counts on January 18, 2000. The trial court sentenced Jensen on February 18 2000, to a concurrent term of six years with three years executed and three years suspended to probation. Under terms of the Act then in effect Jensen was required to report and register as a sex offender for a period of ten years.
Jensen was released from prison and began the probationary period of his sentence on July 12, 2001. He was released from probation on July 12, 2004. Since his release, Jensen has annually reported and registered as a sex offender.
Effective July 1, 2006, the Legislature amended the Act in several respects. Significant to the case before us is an amendment requiring lifetime registration for a defendant whose offense qualifies the defendant as a "sexually violent predator."1 Ind.Code § 11-8-8-19 (2006). Vicarious sexual gratification—one of the offenses to which Jensen pleaded guilty—falls within that category. Ind.Code § 35-38-1-7.5(b) (2006). In 2006, the definition of "sexually violent predator" contained no limitation on the date of a conviction that could qualify an offender for the designation. Id.2
On September 20, 2006, the Sex Offender Registration Coordinator for the Allen County Sheriff's Department informed Jensen that he would have to register for life as a sexually violent predator. In response Jensen filed a motion with the trial court to determine his registration status. After a hearing the trial court found Jensen to be a sexually violent predator and determined that Jensen must register for life. Jensen appealed raising three claims: (1) the Act violates the ex post facto provisions of both the Indiana and federal Constitutions, (2) the Act violates his rights to life, liberty, and the pursuit of happiness under the State and federal Constitutions, and (3) Jensen's plea agreement was rendered involuntary because Jensen was not advised that he would be required to register for life as a sex offender. Finding the first claim dispositive, a divided panel of the Court of Appeals reversed the trial court's order and instructed the trial court to enter an order determining that Jensen's registration requirement is ten years. Jensen v. State, 878 N.E.2d 400, 403-04 (Ind.Ct.App. 2007). Having previously granted transfer we now affirm the judgment of the trial court.
The United States Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." U.S. Const. art. I, § 10. The Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed." Ind. Const. art. I, § 24. Among other things, "[t]he ex post facto prohibition forbids the Congress and the States to enact 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, 67 L.Ed.2d 17 (1981) ). 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. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006).
Jensen contends that as applied to him the Act violates both the Indiana and federal constitutional prohibitions against ex post facto laws. In Wallace we noted that the United States Supreme Court has concluded that the State of Alaska's Sex Offender Registry Act, which is very similar to Indiana's Act, does not violate the Ex Post Facto Clause of the United States Constitution. Wallace, 905 N.E.2d at 378. We thus proceeded to evaluate Wallace's claim under the Indiana Constitution albeit adopting the same analytical framework the Supreme Court employed to evaluate ex post facto claims under the federal constitution. Id. at 378. We do the same here. "This Court has long observed that even when confronted with similarly worded provisions in the federal constitution, we will nonetheless apply an independent analysis when interpreting provisions in our own constitution." Id.
In evaluating ex post facto claims under the Indiana Constitution we apply what is commonly referred to as the "intent-effects" test. Id. at 378. Under this test the court must first determine whether the legislature meant the statute to establish civil proceedings. Id. 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. See Id.
We first observe that "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)). In the absence of a stated purpose, one way to determine legislative intent is to examine where the statute is located within the Code. Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind.Ct. App.2004). See, e.g., Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (). However such an examination is of little help here because although the statutory provision for determining that a person is a sexually violent predator is placed within the criminal code, see Ind.Code § 35-38-1-7.5 (2006), the provision for registration and the duration of the registration period is placed within the statutory code provision dealing with the Department of Correction. See Ind.Code § 11-8-8-19 (2006).3
In any case, even though we are not aided by an express statement of legislative intent, 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 party challenging the constitutionality of the statute bears the burden of proof, and all doubts are resolved against that party. Id. "If two reasonable interpretations of a statute are available, one of which is constitutional and the other not, we will choose that path which permits upholding the statute because we will not presume that the legislature violated the constitution unless the unambiguous language of the statute requires that conclusion." State Bd. of Tax Comm'rs v. Town of St. John, 702 N.E.2d 1034, 1037 (Ind. 1998).
In this case, Jensen cites no evidence of a punitive intent on the part of the legislature with respect to the 2006 amendments. Thus, we presume that the legislature's intent was civil and regulatory, and not criminal or punitive in relation to the claim that the Act is an ex post facto violation.
In assessing a statute's effects we are guided by 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." Wallace, 905 N.E.2d at 379 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)) (alterations in original). No one factor is determinative. "[O]ur 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)). We address each factor in turn.
We first ask "[w]hether the sanction involves an affirmative disability or restraint." Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554. As we point out in Wallace the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies. Among other things the Act compels affirmative post-discharge conduct (mandating registration, re-registration, disclosure of public and private information, and updating of that...
To continue reading
Request your trial
- People ex rel. T.B.
- Hope v. Comm'r of Ind. Dep't of Corr.
- State Of North Carolina v. Bowditch
-
Hitch v. State
...a stated purpose, one way to determine legislative intent is to examine where the statute is located within the Code.” Jensen v. State, 905 N.E.2d 384, 390 (Ind.2009) (citation omitted). And as the Court of Appeals has pointed out, “Section 35–38–1–7.7, which directs the trial court to dete......
-
Weekly Case Digests October 18, 2021 - October 22, 2021.
...enactment unless the marginal effects of doing so would not be punitive. Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384 (Ind. 2009). If an offender was under no registration requirement prior to SORA's passage, imposing a registration requirement in the first ......
-
Equal Protection Claim Sex Offender Registration Act.
...enactment unless the marginal effects of doing so would not be punitive. Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384 (Ind. 2009). If an offender was under no registration requirement prior to SORA's passage, imposing a registration requirement in the first ......