Tyson v. State

• Decision Date: 03 March 2015
• Docket Number: No. 45A03–1405–CR–143.,45A03–1405–CR–143.
• Citation: 28 N.E.3d 1074
• Parties: Sidney Lamour TYSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

28 N.E.3d 1074

Sidney Lamour TYSON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1405–CR–143.

Court of Appeals of Indiana.

Filed March 3, 2015.

Ordered Published March 26, 2015.

Kristin A. Mulholland, Crown Point, IN, Attorney for Appellant.

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

MEMORANDUM DECISION

KIRSCH

, Judge.

[1] In this interlocutory appeal, Sidney Lamour Tyson challenges the trial court's denial of his motion to dismiss the charge of Class D felony failure to register as a sex offender, contending that it was an ex post facto violation to require him to register under the Indiana Sex Offender Registration Act (“SORA”) when, at the time he committed his offence in Texas, Indiana's definition of sex offender would not have required him to register.

[2] We affirm.

Facts and Procedural History

[3] On February 20, 2002, Tyson was adjudicated a delinquent in the state of Texas for the offense of aggravated sexual assault committed on August 22, 2001. As a result of his adjudication, Tyson was placed on probation for two years. Under the Texas Code of Criminal Procedure, he was required to register as a sex offender. Tyson's registration requirement in Texas commenced February 27, 2002, with an end date of February 19, 2014.

[4] Tyson moved to Indiana in 2009. On December 26, 2012, Tyson's vehicle was stopped by Merrillville Police Department for having an expired license plate. The officer learned through a background check that Tyson was required to register as a sex offender in Texas for the time period of February 27, 2002 through February 19, 2014. The officer checked the Lake County Sexual Offender Registry, and it showed no record of Tyson registering as a sex offender in Indiana.

[5] On January 17, 2013, the State charged Tyson with Class D felony failure to register as a sex offender. On February 12, 2014, Tyson filed a motion to dismiss, which the trial court denied on February 25, 2014. Tyson now files this interlocutory appeal.

Discussion and Decision

[6] Tyson argues that SORA as applied to him violates the ex post facto prohibition of the United States Constitution and the Indiana Constitution, both of which contain prohibitions against the passage of ex post facto laws. U.S. Const. art. I, § 10; Ind. Const. art. 1, § 24

. 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. 1, § 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) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325–26, 18 L.Ed. 356 (1866) ). 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. Hevner v. State, 919 N.E.2d 109, 111 (Ind.2010) (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006) ).

[7] Tyson contends that the trial court erred when it denied his motion to dismiss his charge of failure to register as a sex offender. He claims that, when applied to him, SORA violates the prohibition against ex post facto laws. Tyson asserts that, at the time he committed his predicate offense in Texas, there was no requirement in Indiana that a thirteen-year-old register as a sex offender because the offender was required to do so in Texas and that, therefore, he did not have fair warning of the sex offender registry penalty at the time he committed his offense in Texas. He further argues that, to impose a registration requirement upon him based on the 2006 amendment of SORA that changed the definition of sex offender in Indiana violated the prohibition on ex post facto laws.

[8] The prohibition against ex post facto laws applies only when a new law imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed. Sewell v. State, 973 N.E.2d 96, 102 (Ind.Ct.App.2012)

(quotations omitted). “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.’ ” United States v. Brady, 26 F.3d 282, 291 (2nd Cir.1994) (quoting Weaver, 450 U.S. at 31, 101 S.Ct. 960 ).

[9] In the present case, on February 20, 2002, Tyson was adjudicated a delinquent for the offense of aggravated sexual assault committed on August 22, 2001 in the state of Texas. As a result of this adjudication, he was required to register as a sex offender in Texas from the date of February 27, 2002 until February 19, 2014. In 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.” Ind.Code § 11–8–8–5(b)(1)

. Tyson became a resident of Indiana in 2009. At the time of his relocation to Indiana, therefore, an individual relocating to Indiana who was required to register as a sex offender in any jurisdiction was considered a sex offender in Indiana and was required to register in Indiana. When Tyson moved to Indiana in 2009, he became a resident of Indiana and subjected himself to the existing laws of Indiana governing sex offender registration. Before...