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.
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
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)).
In evaluating an ex post facto claim under the Indiana Constitution we apply what is commonly known as the "intent-effects" test.
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,
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).
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).
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.
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
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,
The fourth factor considers "whether [the statute's] operation will promote the traditional aims of punishment — retribution and deterrence."
The fifth factor for consideration is "whether the behavior to which [the statute] applies is already a crime." Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. Although the registration requirement is triggered exclusively by criminal behavior, the defendant's offense, Child Solicitation, was already a registration-triggering offense at the time of commission. Our prior cases, in analogous circumstances, have weighed this factor in favor of treating the enhanced registration period as non-punitive as applied.
Under the sixth factor, we determine "whether an alternative purpose to which [the statute] may rationally be connected is assignable for it." Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661. Because the Act advances the legitimate regulatory purpose of protecting the public from repeat sexual crime offenders, our cases have consistently treated this factor as non-punitive. Harris, 949 N.E.2d at 812; Pollard, 908 N.E.2d at 1152-53; Jensen, 905 N.E.2d at 393; Wallace, 905 N.E.2d at 383. Likewise, here, this factor weighs in favor of treating the effects of the Act as non-punitive.
The seventh and final factor to be considered is "whether [the statute] appears excessive in relation to the alternative purpose assigned." Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661. Our previous cases have reached differing results based on the outcome of this final factor.
In Wallace, we determined the seventh factor to be punitive for a defendant convicted and released prior to the Act's 1994 passage. In so doing, we found it significant that "the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation." Wallace, 905 N.E.2d at 384. In Jensen, this Court found that the effects of the Act applied differently to Jensen than they had to Wallace. We first noted that the 2006 amendments had changed nothing with regard to Jensen's actual disclosure requirements; they had changed only the duration of the requirement.
Here, unlike defendants Jensen and Harris, the defendant is not an SVP. Under Indiana law, there are two avenues by which a sex offender may qualify as an SVP. First, a person can qualify as an SVP by reason of a "mental abnormality or personality disorder that makes the individual
The State contends that a distinction must be made between an SVP whose registration requirement is based on his or her mental state and someone in the defendant's position whose increased registration requirement is "based on facts admitted by him ... that do not change with the passage of time, or with rehabilitation." Appellee's Trans. Br. 6-7. As noted above, this seventh Mendoza-Martinez factor requires that we consider whether the retroactive application appears excessive in relation to the alternative purpose assigned. The alternative purpose is protection of the public from repeat sexual crime offenders. The degree to which a prior offender has been rehabilitated and does not present a risk to the public is thus integral to our evaluation of whether an extension of the ten-year registration requirement is reasonable in relation to such public protection. The availability of meaningful review of an offender's future dangerousness is therefore germane to the determination of whether a statute's effects are excessive. Under the procedures contained in Indiana Code Section 11-8-8-22, the sole avenue of relief available to a non-SVP defendant, a trial court may, if it chooses, summarily dismiss an offender's petition without ever setting a hearing.
In the present case, the defendant, Gonzalez, as a non-SVP, may not predicate his request for relief on the grounds that he has been rehabilitated and presents no risk to the public. And the trial court has refused to grant a hearing despite his repeated attempts to seek the trial court's review of his claim of ex post facto punishment. Thus, as to this defendant, we find that the retroactive imposition of a lifetime registration requirement appears excessive in relation to the purpose of protecting the public from repeat sexual crime offenders. For these reasons, we find this seventh factor weighs slightly in favor of treating the enhanced registration period as punitive rather than non-punitive.
We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant's claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute's effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d at 378-79. The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana's criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed. As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the Indiana Constitution.
We reverse the denial of the defendant's petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.
DAVID, MASSA, RUSH, JJ., concur.
RUCKER, J. concurs in result.
Id. (emphasis added).
