State of Indiana v. Kenneth R. Trisler (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 22 2016, 9:25 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Ryan P. Dillon
Attorney General of Indiana Dillon Legal Group, P.C.
Franklin, Indiana
J.T. Whitehead
Deputy Attorney General ATTORNEY FOR AMICUS
Indianapolis, Indiana CURIAE ACLU OF INDIANA
Jan P. Kubicki-Mensz
ACLU of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 22, 2016
Appellant-Plaintiff, Court of Appeals Case No.
55A01-1604-CR-953
v. Appeal from the Morgan Superior
Court
Kenneth R. Trisler, The Honorable Christopher L.
Appellee-Defendant. Burnham, Judge
Trial Court Cause No.
55D02-1512-F6-1726
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 1 of 13
[1] The State of Indiana appeals the trial court’s order granting Kenneth R.
Trisler’s motion to dismiss the charging information on the grounds that Ind.
Code § 35-42-4-14 is an ex post facto law as applied to him. The State raises one
issue which we revise and restate as whether the court abused its discretion in
granting Trisler’s motion to dismiss. We reverse and remand.
Facts and Procedural History
[2] On February 19, 2010, Trisler pleaded guilty to child molesting as a class C
felony under Ind. Code § 35-42-4-3(b). On November 3, 2013, he was released
from the Indiana Department of Correction (the “DOC”), and, due to his child
molesting conviction, registered as a sex offender as required by Ind. Code § 11-
8-8-7. In 2015, the Indiana Legislature enacted Ind. Code § 35-42-4-14,1 (the
“unlawful-entry statute”) which provided in part:
(a) As used in this section, “serious sex offender” means a person
required to register as a sex offender under IC 11-8-8 who is:
(1) found to be a sexually violent predator under IC 35-38-
1-7.5; or
(2) convicted of one (1) or more of the following offenses:
(A) Child molesting (IC 35-42-4-3).
1
Subsequently amended by Pub. L. No. 13-2016, § 17 (eff. July 1, 2016).
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 2 of 13
*****
(b) A serious sex offender who knowingly or intentionally
enters school property commits unlawful entry by a serious
sex offender, a Level 6 felony.
[3] On December 8, 2015, Trisler was arrested for entering the property of the
Mooresville Consolidated School Corporation. On December 9, 2015, the
State charged him with Count I, unlawful entry onto school property by a
serious sex offender as a level 6 felony, and Count II, criminal trespass as a
level 6 felony. The charging information for Count I alleged that “on or about
December 8, 2015 in Morgan County, State of Indiana, Kenneth R. Trisler,
being a serious sex offender, did knowingly enter school property, to-wit:
Mooresville Consolidated School Corporation.” Appellant’s Appendix at 10.
[4] On February 26, 2016, Trisler filed a motion to dismiss Count I along with a
memorandum of law in support of the motion to dismiss and a motion to
suppress related to Count II. On April 8, 2016, the court held a hearing on
Trisler’s motions and, at the outset, Trisler’s counsel stated that “the prosecutor
and I would stipulate to the facts and volition [sic] of the probable cause
affidavit . . . as well as that [Trisler] would have the conviction for child
molesting arising out of 2010. I don’t think there’s any dispute of those two
facts.” Transcript at 3. Trisler’s counsel argued that the unlawful-entry statute
is an ex post facto law in violation of the state and federal constitutions, that the
statute is not regulatory, and that the “sole purpose of this statute is only [to]
punish people who have the designation of serious sex offender.” Id. at 4. His
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 3 of 13
counsel acknowledged that Trisler would qualify under the statutory definition
as a serious sex offender but argued that the statute was “adopted to punish
behavior after a person is already in a certain class of persons” and that, as to
Trisler, the unlawful-entry statute is punitive. Id. at 5. Trisler’s counsel also
stated that if a defendant has “kids in the school, he’s not allowed to go to
events, if the school nurse says, my kids are sick, I can’t come on the property,
if I do, then I’m going to be charged with a statute [sic], if I don’t, I’m charged
with neglect of a dependent,” and that that set of facts “doesn’t necessarily
apply to [Trisler]” but to a hypothetical defendant. Id. at 5-6. The prosecutor
argued that the unlawful-entry statute is “not ex post facto at all, because a new
act occurred after the statute went into effect.” Id. at 8. The court stated that
“I’m going to grant . . . [Trisler’s] Motion to Dismiss count one because it is
[an] ex post facto law and unconstitutional as applied to [Trisler].” Id. at 10-11.
[5] The same day, the court issued a written ruling granting Trisler’s motion to
dismiss Count I, which stated in part:
The law was effective on July 1, 2015. [Trisler] was defined by
this law as a “serious sex offender” by reason of his conviction
for a qualifying sex offense in February 2010. The punitive effect
of this new law took effect more than five years after his
conviction for a sex offense, and did not exist in the law at the
time of his conviction.
As applied to [Trisler], IC 35-42-4-14 violates the prohibitions
regarding ex post facto laws in Article I, Section 24 of the Indiana
Constitution and Article I, Section 10 of the United States
constitution, and is unconstitutional as applied to [Trisler].
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 4 of 13
Appellant’s Appendix at 35.2
Discussion
[6] The issue is whether the trial court abused its discretion in granting Trisler’s
motion to dismiss Count I. We generally review a trial court’s ruling on a
motion to dismiss a charging information for an abuse of discretion. Tiplick v.
State, 43 N.E.3d 1259, 1262 (Ind. 2015). But where, as here, the arguments
presented are questions of law, we consider them de novo. Study v. State, 24
N.E.3d 947, 950 (Ind. 2015), cert. denied, 136 S. Ct. 412 (2015). We review
questions of constitutionality de novo. Zoeller v. Sweeney, 19 N.E.3d 749, 751
(Ind. 2014). The party challenging the statute bears the burden of proof and all
doubts are resolved against him. Jensen v. State, 905 N.E.2d 384, 390 (Ind.
2009). Unlike a facial challenge, however, a party raising an as applied
challenge need only show the statute is unconstitutional “on the facts of [the]
particular case.” Meredith v. Pence, 984 N.E.2d 1213, 1218 n.6 (Ind. 2013).
[7] The State argues that the unlawful-entry statute is not being applied
retroactively as to Trisler, that, applying the factors of the intent-effects test,
application of the unlawful-entry statute to Trisler is not a violation of ex post
facto principles and that the trial court’s ruling conflicts with the law in Indiana
regarding proper application of the Indiana ex post facto clause.
2
The court’s order also denied Trisler’s suppression motion related to Count II.
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 5 of 13
[8] Trisler argues that the trial court did not abuse its discretion in dismissing
Count I because the facts alleged demonstrate a retroactive application of the
law to his conduct and that application of the unlawful-entry statute to him is
punitive, even if the legislature intended the statute to be civil or regulatory in
nature. He contends that applying the unlawful-entry statute to him “alter[s]
the state of affairs [for Trisler], by transforming [what] was once legal conduct
to criminal conduct, based on his earlier conviction” and that his past conduct,
which led to a conviction for child molesting, is the conduct that is “subject to
the retroactive application of the law and not [Trisler’s] entrance upon school
property (which otherwise would have been a legal act).” Appellee’s Brief at 12.
He asserts that the seven factors of the intent-effects test weigh in favor of the
conclusion that the unlawful entry statute, as applied, is more punitive than
regulatory and that a recent decision, McVey v. State, 56 N.E.3d 674 (Ind. Ct.
App. 2016), in which another panel of this Court, concluded that application of
the unlawful-entry statute to an individual convicted of child molesting in 2001
was not unconstitutional ex post facto punishment, should be reconsidered.
[9] The American Civil Liberties Union of Indiana (“ACLU”) filed an amicus brief
arguing that the unlawful-entry statute violates the Indiana Constitution’s
prohibition on ex post facto laws and that “[f]or many thousands of people with
convictions for sex offenses, the law’s punitive effects are severe as there are
many legitimate reasons to be on school property” including voting when
polling places are on school grounds, participating in adult education
opportunities when on school grounds, and entering school grounds as a parent
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 6 of 13
to address a child’s health and safety emergencies, attend to disciplinary issues,
and participate in a child’s educational and extracurricular activities. Amicus
Brief at 8. The ACLU points out that the unlawful-entry statute does not
contain exceptions or establish a process for individuals with legitimate and
compelling reasons to be on school property and argues that this court’s holding
in McVey “should not be broadly applied as the law is excessive and punitive for
the many individuals who have a legitimate reason to be on school grounds,
particularly for parents who have children enrolled in the school.” Id. at 9.
[10] In reply, the State asserts that McVey supports the conclusion that applying the
unlawful-entry statute to Trisler is not an ex post facto violation and that the
court abused its discretion in granting Trisler’s motion to dismiss.
[11] The United States Constitution provides that “[n]o State shall . . . pass any ex
post facto Law.” U.S. CONST. art. 1, § 10. The Indiana Constitution provides
that “[n]o ex post facto law . . . shall ever be passed.” IND. CONST. art. 1, § 24.
In evaluating an ex post facto claim under the Indiana Constitution we apply
what is commonly known as the “intent-effects” test. Wallace v. State, 905
N.E.2d 371, 378 (Ind. 2009), reh’g denied. Under the first prong of this test, we
determine what type of scheme the legislature intended the statute to establish.
Id. (citing Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146-1147 (2003)). If
the legislature’s intention was to impose punishment, the inquiry ends and an
ex post facto violation is found. If, however, the legislature’s intention was
regulatory or civil in nature, then the court must move to the second prong of
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 7 of 13
the inquiry to determine whether the effects of the statute are so punitive as to
transform the regulatory scheme into a criminal penalty. See id.
[12] First, “it is difficult to determine legislative intent since there is no available
legislative history and the [Indiana Sex Offender Registration] Act does not
contain a purpose statement.” Id. at 383 (quoting Spencer v. O’Connor, 707
N.E.2d 1039, 1043 (Ind. Ct. App. 1999)). As with the overall Act, the
unlawful-entry statute does not contain a purpose statement, and some
components of the overall Act are contained in the civil code while others, like
the unlawful-entry statute, are contained in the criminal code. Id. 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). We assume
without deciding that, in passing the overall Act, “the legislature’s intent was to
create a civil, non-punitive, regulatory scheme . . . .” State v. Pollard, 908
N.E.2d 1145, 1150 (Ind. 2009); see also Wallace, 905 N.E.2d at 379.
[13] Second, we consider whether the effects of the overall 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 (1963):
[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
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 8 of 13
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 (alterations in original) (quoting Mendoza-Martinez,
372 U.S. at 168-169, 83 S. Ct. at 567-568).
[14] Another panel of this Court has recently addressed whether retroactive
application of the unlawful-entry statute violates Indiana’s ex post facto clause.
We find instructive McVey v. State, 56 N.E.3d 674 (Ind. Ct. App. 2016). In that
case, McVey was convicted in 2001 of child molesting as a class C felony for
molesting his half-sister. McVey, 56 N.E.3d at 676. He was released from the
DOC on July 15, 2011, started probation, and registered as a sex offender. Id.
at 677. In July 2012, the trial court determined that McVey had violated his
probation, he was sent back to the DOC for two years executed, and he was
released to parole in 2014. Id. In September 2015, McVey filed a petition,
pursuant to Ind. Code § 11-8-8-22(c) asking to be exempt from the unlawful-
entry statute because he was convicted of the qualifying offense (child
molesting) before the statute went into effect, which the trial court denied. Id.
at 677-678.
[15] On appeal, McVey argued, in part, that applying the unlawful-entry statute to
him violates Indiana’s ex post facto provision because he committed the
qualifying offense (child molesting) in 2001, well before the unlawful-entry
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 9 of 13
statute went into effect on July 1, 2015. Id. at 679. This Court provided the
following analysis:
Using Pollard as a guide, we find that Factors 1 and 7 are non-
punitive as applied to McVey and thus readily distinguish this
case from Pollard. As for Factor 1, which addresses whether the
law subjects those within its purview to an affirmative disability
or restraint, the record shows that McVey wants to enter school
property, Blue River Career Programs, to take a CDL class.
Notably, McVey does not allege that this is the only place where
he can take the class. And it appears that McVey started the
CDL process after the unlawful-entry statute went into effect on
July 1, 2015. An offender who is prohibited from entering school
property to take a class after the unlawful-entry statute became
effective is very different from an offender who is prohibited from
living in a house that the offender owned and lived in for twenty
years before the residency-restriction statute became effective.
The effects to McVey are minor in comparison. See Sewell v.
State, 973 N.E.2d 96, 103 (Ind. Ct. App. 2012) (applying the
residency-restriction statute to the defendant did not violate
Indiana’s ex post facto provision because he “did not reside [in]
or own property within 1,000 feet of the church when he was
convicted of child molesting. Nor has he shown that he resided
in property which only later fell within a protected zone. . . . We
conclude that because [the defendant’s] residency decision
occurred after the enactment of the statute, [his] prosecution does
not violate” Indiana’s ex post facto provision). This factor is
non-punitive as applied to McVey.
Factor 7, which addresses whether the statute appears excessive
in relation to the alternative purpose assigned, is given the
greatest weight. See Pollard, 908 N.E.2d at 1153. Although the
unlawful-entry statute, like the residency-restriction statute, also
applies to sexually violent predators (which can include
defendants convicted of sex crimes not involving children),
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 10 of 13
McVey was convicted of child molesting, which is a crime
against children. In contrast, in Pollard, it was unknown whether
the defendant’s sex-offense conviction was against a child. Id. at
1147 n.1 (“The stipulated facts say nothing about the nature of
the offense or the sentence imposed.”). Accordingly, the Pollard
Court found that because the residency-restriction statute applied
to sexually violent predators, restricting residence based on
conduct that may have nothing to do with crimes against
children was punitive as applied to the defendant. But because
McVey was convicted of child molesting, this factor is non-
punitive as applied to McVey.
Because of the distinctions between Pollard and this case—
particularly Factor 7, which is given the greatest weight—we
conclude that, as applied to McVey, the unlawful-entry statute
does not violate Indiana’s ex post facto provision.
Id. at 681.
[16] By virtue of his 2010 conviction for child molesting, the unlawful-entry statute
applies to Trisler’s entry on to school property. As to Factor 1, which addresses
whether the sanction imposes an affirmative disability or restraint, the record
does not indicate the reason for Trisler’s presence on school property. Indeed,
at the hearing, his counsel acknowledged that Trisler did not have a child who
attended the school and that a set of facts involving a parent attending to a
child’s needs “doesn’t necessarily apply to [Trisler],” nor is there evidence that
he entered school property in order to vote, participate in adult education,
attend to a child’s health, safety, or other school-related needs, or that he
entered school property with the permission of school administrators.
Transcript at 3. Additionally, Trisler does not dispute that he entered school
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 11 of 13
property after the unlawful-entry statute went into effect on July 1, 2015. As to
Factor 6, which addresses whether an alternative purpose to which the
unlawful-entry statute may rationally be assigned, we observe that the unlawful-
entry statute advances the state’s regulatory goal of protecting children from
registered sex offenders. We further note that Trisler acknowledges the
unlawful-entry statute’s regulatory purpose, and he states “[a]dmittedly, the
unlawful act [sic] does purport the advancement of a non-punitive purpose,
specifically public safety. The factor weighs toward a non-punitive finding of
the effects of the statute.” Appellee’s Brief at 23. As to Factor 7, which
addresses whether the unlawful-entry statute appears excessive in relation to the
alternative purpose assigned, we note that, although the unlawful-entry statute
applies to individuals convicted of crimes unrelated to children, Trisler was
convicted of child molesting, a crime against children. The unlawful-entry
statute serves to further the state’s regulatory goal of protecting children from
registered sex offenders by reducing a sex offender’s opportunities for contact
with children through regulation of a sex offender’s entry onto school property.
We cannot say that the unlawful-entry statute is unrelated to the state’s non-
punitive goal of protecting children from sex offenders or that it is excessive in
relation to that goal. Based upon McVey, we conclude that, as applied to
Trisler, the unlawful-entry statute does not violate Indiana’s ex post facto clause3
3
With respect to Trisler’s argument that the unlawful-entry statute violates the federal ex post facto clause, we
observe that we apply the intent-effects test to evaluate an ex post facto claim under both the Indiana and the
federal constitution. See Wallace, 905 N.E.2d at 378 (observing that the United States Supreme Court applied
the intent-effects test in discussing whether a statute violated the ex post facto clause of the United States
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 12 of 13
and that the trial court abused its discretion in granting Trisler’s motion to
dismiss.
Conclusion
[17] For the foregoing reasons, we reverse the trial court’s dismissal of the charging
information and remand for further proceedings.
[18] Reversed and remanded.
Robb, J., and Mathias, J., concur.
Constitution and holding that the intent-effects is the “appropriate analytical framework for analyzing ex post
facto claims under the Indiana Constitution”); Gonzalez v. State, 980 N.E.2d 312, 316, n.3 (Ind. 2013)
(observing that “Indiana courts have adopted an approach consistent with the federal standard through use of
the intent-effects test”). We cannot say, for the reasons discussed above, that Trisler has demonstrated a
violation of the federal ex post facto clause.
To the extent Trisler and the ACLU develop an argument that requires us to assess the impact of the
unlawful-entry statute on the basis of facts and parties not before us, the Indiana Supreme Court has stated
that, in the context of an Indiana constitutional challenge, “a court should focus on the actual operation of
the statute at issue and refrain from speculating about hypothetical applications,” and that “[u]nless the court
concludes that the statute before it is incapable of constitutional application, it should limit itself to
vindicating the rights of the party before it.” Price v. State, 622 N.E.2d 954, 958 (Ind. 1993), reh’g denied; see
also Murphy v. State, 837 N.E.2d 591, 593 (Ind. Ct. App. 2005) (noting that “a person to whom a statute may
be applied constitutionally may not challenge the statute on the basis that it may conceivably be applied in an
unconstitutional manner to others not before the court”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 13 of 13