Wallace v. State
| Decision Date | 30 April 2009 |
| Docket Number | No. 49S02-0803-CR-138.,49S02-0803-CR-138. |
| Parties | Richard P. WALLACE, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below). |
| Court | Indiana Supreme Court |
Kathleen M. Sweeney, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0706-CR-498
The statutes collectively referred to as the Indiana Sex Offender Registration Act ("Act") require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision.
In 1988, Richard Wallace was charged with one count of child molesting as a Class B felony and one count of child molesting as a Class C felony. Under terms of a plea agreement Wallace pleaded guilty to the Class C felony count on February 15, 1989. The trial court imposed a five-year suspended sentence with various conditions of probation. Wallace completed probation in 1992. Two years later the Indiana Legislature passed the Act that, among other things, required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders. In 2001 the Act was amended to require all offenders convicted of certain sex offenses to register as sex offenders regardless of conviction date.
In 2003, Wallace's ex-wife notified authorities that Wallace had been convicted of a sex offense but had never registered as an offender. The Sex Offender Registration Coordinator for the Indianapolis Police Department investigated the matter, concluded Wallace was required to register, and sent Wallace a letter to that effect. Wallace responded to the Coordinator on December 31, 2003, and insisted that he did not have to register as a sex offender because the plea agreement executed in 1989 did not require him to do so.
After Wallace did not register, he was charged with failing to register as a sex offender as a Class D felony. Wallace subsequently filed a motion to dismiss, which the trial court denied. Following a trial by jury on January 31, 2007, he was found guilty as charged. The trial court sentenced Wallace to 545 days of incarceration, all suspended to probation. He appealed raising three claims: (1) the plea agreement foreclosed the State's ability to prosecute him for failing to register as a sex offender, (2) the evidence was insufficient to support the conviction, and (3) the Act violates the ex post facto provisions of both the Indiana and federal Constitutions. The Court of Appeals affirmed the judgment of the trial court. Wallace v. State, 878 N.E.2d 1269, 1277 (Ind.Ct.App.2008).
Having previously granted transfer we now reverse the judgment of the trial court on Wallace's ex post facto claim. In all other respects we summarily affirm the opinion of the Court of Appeals.
The State of New Jersey gained national recognition after enacting a sex offender registration statute that has become known as "Megan's Law," named after a child abducted, sexually assaulted, and murdered by a known child molester who had moved across the street from the child's family without their knowledge. The constitutionality of the New Jersey legislation was upheld by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (N.J.1995).
In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act to encourage individual states to adopt sex offender registration statutes. Under the Wetterling Act, if a state did not adopt some version of Megan's Law with certain provisions, Congress could withhold ten percent of certain grants the state would ordinarily receive for a variety of crime prevention and interdiction programs. See 42 U.S.C. § 14071(f) (1995) (current version at 42 U.S.C. § 14071(g)).
All fifty states and the District of Columbia responded in kind which generated an explosion of litigation challenging the laws under various constitutional provisions including federal and state ex post facto clauses1 and inspired vigorous academic debate.2 The United States Supreme Court has also weighed in on the subject declaring in 2003 that the registration requirements imposed by the Alaska Sex Offender Registration Act were non-punitive and created a civil regime; therefore, the registration requirement could be applied retroactively without violating the Ex Post Facto Clause of the United States Constitution. Smith v. Doe, 538 U.S. 84, 105-06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).3
The Indiana General Assembly adopted its first version of Megan's Law in July 1994. Referred to as "Zachary's Law,"4 the Act required persons convicted of certain sex crimes to register as "sex offender[s]." Act of March 2, 1994, Pub.L. No. 11-1994, § 7 (codified as Indiana Code §§ 5-2-12-1-5-2-12-13) (current version at Indiana Code §§ 11-8-8-1-11-8-8-22). The Act contained both registration and notification provisions, i.e., sex offenders were required to take affirmative steps to notify law enforcement authorities of their whereabouts, and that information was then disseminated to the public. In 1994, eight crimes triggered status as a sex offender and the statute applied only to offenders who resided or intended to reside in Indiana. Ind.Code §§ 5-2-12-4, -5 (1994). Registration involved providing limited information to law enforcement agencies where the offender resided and updating that information if the offender moved to a new municipality or county in Indiana. Id. at -8. Notification involved the distribution of a paper registry, updated twice per year and sent automatically to a few select agencies. Id. at -11. Other entities could receive the registry on request, but the home addresses of the registrants were withheld. Id.
Since its inception in 1994 the Act has been amended several times. What began as a measure to give communities notification necessary to protect children from sex offenders, the Act has expanded in both breadth and scope. We summarize below the amendments most relevant to the case before us.
The number of sex offenses that trigger the registration requirement has increased from eight to twenty-one, and has expanded to include murder, voluntary manslaughter, and under certain circumstances kidnapping and criminal confinement. Ind.Code §§ 11-8-8-5, -7 (Supp.2008). The length of time in which an offender has a duty to register has also increased. Originally the duty to register was prospective only, and terminated when the offender was no longer on probation or discharged from parole. Ind.Code § 5-2-12-13 (1994). But in 1995 the duty to register expanded to ten years after the date the offender was released from prison, placed on parole, or placed on probation, whichever occurred last. Ind.Code § 5-2-12-13 (1995).
Aside from the registration component of the Act, over the years the notification component of the Act also expanded. Under a 1998 amendment, once an offender is discharged from a correctional facility, the facility is required to provide the local law enforcement authorities with, among other things, the offender's fingerprints, photograph, address where the offender is expected to live, complete criminal history, and any information concerning the offender's treatment of mental disorders. Ind. Code § 5-2-12-7 (1998). The 2001 amendment also requires information concerning any address at which the offender spends more than seven days, and the name and address of the offender's employment or school attendance. Ind.Code § 5-2-12-5 (2002) (amended January 1, 2003) (current version at I.C. § 11-8-8-7). A 2008 amendment requires the disclosure of any electronic mail address, instant messaging username, electronic chat room username, or social networking web site username that a sex offender uses or intends to use. Ind.Code § 11-8-8-8 (Supp. 2008).
Verification of the disclosed information has also become more expansive. A 1998 amendment to the Act requires local law enforcement to verify the offender's current residence by mailing a form to the offender at least once per year, which the offender must return either by mail or in person. Ind.Code § 5-2-12-8.5 (1998). In 2006, the Act was amended to allow local law enforcement officers to visit personally the offender's address at least once per year. Ind.Code § 11-8-8-13 (2006). Under a 2008 amendment, if the offender uses an electronic mail address, instant messaging username, electronic chat room username, or social networking web site, the offender must sign a consent form authorizing searches of the offender's personal computer or device with Internet capacity at any time and installation of hardware and software to monitor the offender's Internet usage on any personal computer or device with Internet capacity. Ind.Code § 11-8-8-8 (2008).
A 1999 amendment made registry information accessible through the Internet. Ind.Code § 5-2-12-11 (1999). Today, an offender's home address, work address, and links to maps of their locations are also available.5 Black letters flash "FAILED TO REGISTER" under the photographs of offenders who have failed to register. Id. Red letters flash "SEX PREDATOR" under the photographs of offenders whose crimes qualify them as sexually violent...
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