State of Indiana v. Charles Summers

FILED
Oct 19 2016, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Mark K. Leeman
Attorney General Leeman Law Office and Cass
County Public Defender
Kyle Hunter Logansport, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, October 19, 2016
Appellant-Respondent/Plaintiff, Court of Appeals Case No.
09A02-1604-MI-933
v. Appeal from the Cass Superior
Court
Charles Summers, The Honorable Thomas C.
Appellee-Petitioner/Defendant. Perrone, Judge
Trial Court Cause No.
09D01-1510-MI-70
09D01-1508-F6-233
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 1 of 9
Case Summary
[1] After being ordered to register as a sex offender in Illinois for ten years, Charles
Summers moved to Indiana. Summers later registered as a sex offender in
Indiana. When Indiana applied its tolling statute to Summers (in order to
extend Summers’ registration period by the amount of time he was incarcerated
in Indiana for new crimes committed), Summers claimed that applying the
statute to him violated Indiana’s prohibition against ex post facto laws. He
argued that when he committed his underlying offense in Illinois, Indiana had
not yet enacted its tolling statute. Because Summers was under a tolling
requirement in Illinois, we find no punitive burden to maintaining that
requirement across state lines. Because there is no ex post facto violation, we
reverse the trial court and remand this case.
Facts and Procedural History
[2] On April 27, 2005, Summers, age thirteen, was adjudicated a juvenile
delinquent in Illinois for “Criminal Sex Abuse.” Appellant’s App. p. 29. He
was placed on probation and ordered to register as a sex offender in Illinois for
ten years. As a sex offender, if Summers became incarcerated for an unrelated
conviction or adjudication, his registration period was tolled for that time
period according to Illinois statute, 730 ILCS 150/7.1 See Lesher v. Trent, 944
1
Summers argues that Illinois’ tolling statute, 730 ILCS 150/7, does not apply to juveniles. As support for
this argument, he cites 730 ILCS 150/3-5, which provides:
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 2 of 9
N.E.2d 479, 483 (Ill. App. Ct. 2011) (noting that although 730 ILCS 150/7 was
amended in 2008 to clarify an “ambiguity” regarding whether tolling was
required, the Illinois Appellate Court held that the statute had always required
tolling and that “the 2008 amendment merely clarified this requirement”), reh’g
denied.
[3] Summers moved to Indiana “several years” after his April 27, 2005 delinquency
adjudication. Tr. p. 54;2 Appellant’s App. p. 21.
[4] Effective July 1, 2006, the Indiana General Assembly amended the Sex
Offender Registration Act’s (SORA) definition of sex offender to include “a
person who is required to register as a sex offender in any jurisdiction.” P.L.
140-2006, § 13; P.L. 173-2006, § 13; see Ind. Code §§ 11-8-8-4.5(b)(1), -5(b)(1).
Then, effective July 1, 2008, the General Assembly amended SORA to provide
that the registration period is tolled during any period that a sex offender is
incarcerated. P.L. 119-2008, § 8; see Ind. Code § 11-8-8-19(a).
Once an adjudicated juvenile delinquent is ordered to register as a sex offender, the adjudicated
juvenile delinquent shall be subject to the registration requirements set forth in Sections 3, 6, 6-5,
8, 8-5, and 10 for the term of his or her registration.
(Emphasis added). Summers asserts that because 730 ILCS 150/7 is not one of the listed sections, it
does not apply to juveniles. The listed sections, however, are affirmative things that the offender must
do, such as register in person, report changes in address and employment, and submit specimens for
DNA analysis (and the penalty for failing to do these things). 730 ILCS 150/7 is not a registration
requirement, or something that the offender must do. Rather, it addresses the duration of the
offender’s registration. Accordingly, we do not agree with Summers that 730 ILCS 150/7 does not
apply to juveniles simply because that section is not listed in 730 ILCS 150/3-5. Moreover, Summers
does not cite any Illinois case that has held as such.
2
There are two transcripts in this case, one from each cause number. We use the transcript from the criminal
case, Cause No. 09D01-1508-F6-233.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 3 of 9
[5] On August 26, 2010, Summers was convicted of two counts of robbery in
Miami County, Indiana, and sentenced to the Indiana Department of
Correction. After Summers was released from the DOC in 2015, he registered
as a sex offender in Cass County, Indiana,3 see Appellant’s App. p. 39-40, and
was told by the DOC that SORA’s tolling statute, Indiana Code section 11-8-8-
19(a), extended his duty to register from April 27, 2015, to January 28, 2019,
which was the amount of time that he had been incarcerated in the DOC.
[6] On August 2, 2015, police went to Manor Motel in Logansport to verify the
address that Summers had provided when he registered as a sex offender in
Cass County, and management told police that Summers had moved out a few
days earlier. Thereafter, the State charged Summers with Level 6 felony failure
to register as a sex offender4 and Class A misdemeanor failure of a sex offender
to possess identification under Cause No. 09D01-1508-F6-233 (“Cause No. F6-
233”). Appellant’s App. p. 42.
[7] Summers filed a motion to dismiss the criminal charges, arguing that SORA’s
tolling provision, as applied to him, violated Indiana’s prohibition against ex
post facto laws because Indiana’s tolling provision was enacted three years after
3
This appears to be the first time that Summers registered as a sex offender since moving to Indiana.
4
The charging information lists Indiana Code section 11-8-8-17(a)(1), which provides that a sex offender
who knowingly or intentionally fails to register when required to register under this chapter commits a Level
6 felony. Subsection (a)(5), in contrast, provides that it is a Level 6 felony when the offender does not reside
at the offender’s registered address.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 4 of 9
his delinquency adjudication in Illinois. Following a hearing, the trial court
dismissed the criminal charges against Summers.
[8] The same day that the criminal charges were dismissed, Summers, pursuant to
Indiana Code section 11-8-8-22, filed a petition to remove his name from
Indiana’s sex-offender registry under Cause No. 09D01-1510-MI-70 (“Cause
No. MI-70”). Id. at 5. The State later filed a motion to correct error in the
criminal case, and the trial court held a joint hearing on the State’s motion to
correct error and Summers’ petition to remove his name from the registry.
Following the joint hearing, the court denied the State’s motion to correct error
and found that Summers’ name should be removed from the registry. Tr. p. 56-
57. The court issued the following order in Cause No. MI-70:
[T]he Court . . . now finds that the offense and delinquency
adjudication that would qualify [Summers] as a sex offender
under current law occurred before Indiana’s Sex Offender
Registration Act was amended to include a tolling provision, and
requiring [Summers] to register is an ex post facto punishment that
is constitutionally prohibited. [Summers] is therefore not
required to register as a sex or violent offender in the State of
Indiana.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED by the Court that [Summers] is not required under
Indiana law to register as a sex or violent offender based upon his
Dupage County, Illinois, juvenile delinquency adjudication and
sentence of April 27, 2005, and the Indiana Department of
Correction[] and the County Sheriff are directed to take such
steps immediately as are required to remove his name from the
Indiana Sex and Violent Offender Registry.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 5 of 9
Appellant’s App. p. 13.
[9] The State filed a notice of appeal in both cause numbers, and this Court granted
the State’s motion to consolidate the appeals.
Discussion and Decision
[10] The State contends that SORA’s tolling provision, as applied to Summers, does
not violate Indiana’s constitutional prohibition against ex post facto laws.
Accordingly, the State asks us to “reverse the trial court’s judgment” and
“remand with instructions to proceed with Summers’ criminal case [in Cause
No. F6-233] and restore his sex offender registration requirement [in Cause No.
MI-70].” Appellant’s Reply Br. p. 11.
[11] The fundamental principle to the prohibition against ex post facto laws is that
people have a right to fair warning of the criminal penalties that may result
from their conduct. Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016). Specifically,
our Constitution provides, “No ex post facto law . . . shall ever be passed.” Ind.
Const. art. 1, § 24. We review questions of law and constitutionality de novo.
Tyson, 51 N.E.3d at 90. As the party challenging the constitutionality of a
statute, Summers bears the burden of proof and all doubts are resolved against
him. Id. at 91.
[12] In Tyson, our Supreme Court addressed whether a thirteen year old, who was
adjudicated a delinquent in Texas in 2002 and required to register as a sex
offender there until 2014, was required to register as a sex offender when he
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 6 of 9
later moved to Indiana in 2009.5 The Court noted that in 2006, the legislature
amended SORA’s definition of sex offender to include “‘a person who is
required to register as a sex offender in any jurisdiction.’” Id. at 90 (quoting
2006 Ind. Acts 2318). The Court concluded that because Tyson was required to
register as a sex offender in Texas, he was a sex offender in Indiana and
required to register here for the duration of his Texas requirement.6 Id. at 92.
[13] Our Supreme Court also addressed Tyson’s argument that his obligation to
register as a sex offender in Indiana violated Indiana’s prohibition against ex
post facto laws because when he committed the underlying offense in Texas,
Indiana’s statutory definition had not yet been amended to include him.
Applying the intent-effects test—which analyzes whether the statute imposes a
punishment or whether the statute is merely part of a non-punitive, regulatory
scheme—the Court found no ex post facto violation:
5
On appeal, both the State and Summers make much to do about the fact that the record does not reveal the
precise date that Summers moved to Indiana, presumably because they believe if Summers moved here before
the definition of sex offender was amended to include “a person who is required to register as a sex offender
in any jurisdiction,” then he “never would have needed to register as a sex offender” in Indiana. Appellee’s
Br. p. 12. Summers was adjudicated a juvenile delinquent in Illinois on April 27, 2005. Although no precise
date was given, Summers conceded in the trial court that he moved to Indiana “several years” after April 27,
2005. Tr. p. 54. SORA was amended a mere fourteen months after April 27, 2005—on July 1, 2006.
Because “several years” is longer than fourteen months, Summers necessarily moved to Indiana after the
definition of sex offender was amended to include him. Accordingly, contrary to the State’s suggestion in its
reply brief, this case does not need to be remanded to the trial court “to determine when Summers moved to
Indiana.” Appellant’s Reply Br. p. 7.
6
Indiana Code section 11-8-8-19(f) provides, “A person who is required to register as a sex or violent
offender in any jurisdiction shall register for the period required by the other jurisdiction or the period
described in this section, whichever is longer.” This subsection was added effective July 1, 2007. See P.L.
216-2007, § 27.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 7 of 9
Taken as a whole, we find the effects of the amended definition
of sex offender in Indiana Code section 11-8-8-5(b)(1), as applied
to Tyson, are regulatory and non-punitive. This outcome makes
sense in light of other as-applied ex post facto challenges to the
Sex Offender Registration Act we’ve previously considered:
unlike Wallace[v. State, 905 N.E.2d 371 (Ind. 2009)], where the
offender had no obligation to register anywhere before the Act
was passed, Tyson was required to register in Texas years before
our statutory definition was amended to include him. His
circumstances are much more similar to those in Jensen [v. State,
905 N.E.2d 384 (Ind. 2009)] and [Lemon v.]Harris[, 949 N.E.2d
803 (Ind. 2011)], where both offenders already had to register;
the challenged amendments merely lengthened that requirement.
We simply cannot say that transferring the obligation upon moving is
any more punitive than lengthening it to potentially last a lifetime.
Finding Tyson merely maintained his sex offender status across
state lines, we conclude he has failed to show the amended
definition retroactively punishes him in violation of our
Constitution’s prohibition against ex post facto laws.
Id. at 96 (emphasis added).
[14] We reach the same conclusion here. First, as in Tyson, Summers was a sex
offender in Illinois; by moving across state lines, Summers merely maintained
his sex-offender status. Second, although Indiana adopted its tolling provision
several years after Summers was adjudicated a juvenile delinquent in Illinois,
Summers was already under a tolling requirement in Illinois. There is no
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 8 of 9
punitive burden to maintaining both of these requirements across state lines.7
Because Summers has not established an ex post facto violation, we reverse the
trial court’s dismissal of the criminal charges against Summers in Cause No.
F6-233 and reverse the trial court’s grant of Summers’ petition to remove his
name from the sex-offender registry in Cause No. MI-70.
[15] Reversed and remanded.
Baker, J., and Najam, J., concur.
7
Summers argues that our SORA statutory scheme is punitive because, unlike Illinois’ statutory scheme, it
does not contain a provision that allows for juvenile sex offenders to petition for removal from the registry
after only five years. See 730 ILCS 150/3-5. Given the discretionary nature of these petitions in Illinois, we
do not find that this makes our scheme punitive.
Court of Appeals of Indiana | Opinion 09A02-1604-MI-933 | October 19, 2016 Page 9 of 9