State v. Pollard

• Decision Date: 30 June 2009
• Docket Number: No. 05S02-0906-CR-305.,05S02-0906-CR-305.
• Citation: 908 N.E.2d 1145
• Court: Indiana Supreme Court
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Anthony W. POLLARD, Appellee (Defendant below).

908 N.E.2d 1145

STATE of Indiana, Appellant (Plaintiff below), v.Anthony W. POLLARD, Appellee (Defendant below).

No. 05S02-0906-CR-305.

Supreme Court of Indiana.

June 30, 2009.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Chris M. Teagle, Muncie, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 05A02-0707-CR-640

RUCKER, Justice.

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the "residency restriction statute" constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution.In this case the answer is yes.

Facts and Procedural History

On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which he was apparently sentenced.¹On July 1, 2006, the residency restriction statute — Ind. Code § 35-42-4-11 — came into effect.That statute provides that a person convicted of certain sex-related crimes is classified as an "offender against children" and commits "sex offender residency offense," a Class D felony, if the person knowingly or intentionally resides within 1,000 feet of school property, a youth program center, or a public park.²On January 23, 2007, the State charged Pollard with violation of the residency restriction statute, and Pollard responded with a motion to dismiss contending the statute violated the ex post facto prohibition contained in Article I, section 24 of the Indiana Constitution.The parties presented the matter to the trial court based on stipulated facts as follows:

1.That the defendant, Anthony W. Pollard, has an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana.Further, Anthony W. Pollard has had his ownership interest in the real estate for approximately the past 20 years.

2.That the defendant, Anthony W. Pollard had an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause.

3.That the residence owned and occupied by Anthony W. Pollard located at 817 North Monroe Street, Hartford City, Indiana is within one thousand (1,000) feet of school property, a youth program center or a public park.

4.That the defendant, Anthony W. Pollard was residing at the residence located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause.The defendant resided at the residence located at 817 North Monroe Street, Hartford City, Indiana more than two (2) nights in a thirty (30) day period prior to January 12, 2007.

5.That the defendant, Anthony W. Pollard has a prior conviction for an offense listed under I.C. 35-42-4-11(a)(2).

6.That the defendant, Anthony W. Pollard's conviction under I.C. 35-42-4-11(a)(2) occurred prior to the effective date of Indiana Code 35-42-4-11 which was on July 1, 2006.

7.That the defendant, Anthony W. Pollard has been a resident and owner of the residence located at 817 North Monroe Street, Hartford City, Indiana for at least one year prior to the effective date of I.C. 35-42-4-11.

Appellant's App.at 9-10.After entertaining arguments of counsel, submitted by way of written memoranda, the trial court granted Pollard's motion to dismiss concluding that as applied to Pollard the residency restriction statute violates the ex post facto prohibition of Article I, section 24 of the Indiana Constitution.Appellant's App.at 19.On review, focusing primarily on the punitive impact of the statute on Pollard's property interest, the Court of Appeals agreed and affirmed the trial court's order of dismissal.State v. Pollard,886 N.E.2d 69(Ind.Ct.App.2008).Although we agree the trial court's order of dismissal should be affirmed our analysis is different from that of our colleagues.We therefore grant transfer and affirm the judgment of the trial court.³

Discussion

Article I, section 24 of the Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed."Among other things, "[t]he ex post facto prohibition forbids ... 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)(quotingCummings v. Missouri,71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356(1866)).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).Pollard contends the residency restriction statute imposes retroactive punishment because he committed a qualifying offense prior to July 1, 2006.

We recently determined that in evaluating ex post facto claims under the Indiana Constitutionwe apply what is commonly referred to as the "intent-effects" test.Wallace v. State,905 N.E.2d 371, 378(Ind.2009).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.Id.

A.Whether the Legislature Intended to Impose Punishment

Whether the legislature intended the residency restriction statute to be civil or criminal is primarily a matter of statutory construction.And as we observed in Wallace for the overall Sex Offender Registration Act, "it is difficult to determine legislative intent since there is no available legislative history and the Act does not contain a purpose statement."Id. at 383(quotingSpencer v. O'Connor,707 N.E.2d 1039, 1043(Ind.Ct.App.1999)).As with the overall Act, the residency restriction statute does not contain a purpose statement.However, unlike the overall Act where some components are contained in the civil code and others in the criminal code, seeJensen v. State,905 N.E.2d 384, 390(Ind.2009), the residency statute is located solely within the criminal code, see, e.g., Kansas v. Hendricks,521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501(1997)(noting the fact that the Kansas Sexually Violent Predator Act was placed in the probate code rather than the criminal code evinced a legislative intent to create a civil proceeding).Further, the statute contains no exception or "Grandfather Clause" exempting sex offenders who were convicted before its enactment or who owned their homes before the statute's effective date; nor is there any exemption for sex offenders who established their residences before a school, youth program center, or public park moved within 1,000 feet of them.In essence with a single exception,⁴ the residency restriction statute does not appear to include a civil or regulatory component.

We do acknowledge however, that "the [overall]Act advances a legitimate regulatory purpose," namely, "public safety."Wallace,905 N.E.2d at 383.It could thus be argued that as a part of the Act, the residency restriction statute is subsumed into this larger purpose.For this reason we conclude there is ambiguity as to whether the legislature intended to impose punishment by enacting the statute.Therefore, assuming without deciding that the legislature's intent was to create a civil, non-punitive, regulatory scheme we examine whether the statute is so punitive in effect as to negate that intent.

B.Whether the Effect of the Statute is Punitive

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(quotingKennedy 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.(quotingState v. Noble,171 Ariz. 171, 829 P.2d 1217, 1224(1992)).We address each factor in turn.

1.Affirmative Disability or Restraint

When determining whether a law subjects those within its purview to an "affirmative disability or restraint,"Mendoza-Martinez,372 U.S. at 168, 83 S.Ct. 554, the Court inquires "how the effects of the Act are felt by those subject to it.If the disability or restraint is minor and indirect, its effects are unlikely to be punitive."Smith v. Doe,538 U.S. 84, 99-100, 123 S.Ct. 1140, 155 L.Ed.2d 164(2003).

The disability or restraint imposed by the residency restriction statute is neither minor nor indirect.Specifically, Pollard is not allowed to live in a house he owns and in which he has resided for approximately 20 years.And, according to Pollard, the statute would "require him to incur the cost of obtaining other...