Sidney Lamour Tyson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Mar 03 2015, 9:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Gregory F. Zoeller
Crown Point, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sidney Lamour Tyson, March 3, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1405-CR-143
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable Salvador Vasquez,
Judge
Appellee-Plaintiff
Cause No. 45G01-1301-FD-11
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
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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.
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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 (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
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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).
[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
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himself to the existing laws of Indiana governing sex offender registration.
Before Tyson moved to Indiana, he was already required to register as a sex
offender in Texas. Therefore, Indiana did not add to Tyson’s burden or add
any new punishment by respecting the registration requirements of another
state.
[10] The fundamental principle behind the Ex Post Facto Clause is that a person has
a right to fair warning of that conduct which will give rise to criminal penalties.
Hevner, 919 N.E.2d at 111. Here, Tyson had fair warning of the registration
requirement that would result from becoming a resident of Indiana in 2009. He
was already required to register in Texas until February 19, 2014, and the
provision that required individuals moving to Indiana to register as a sex
offender if they were required to register as a sex offender in another
jurisdiction had been in effect since 2006, three years prior to his relocation.
Therefore, he did not become a sex offender, subject to registration
requirements, upon moving to Indiana, but instead, remained a sex offender, as
previously adjudicated, until the conclusion of his registration period.
[11] Additionally, Tyson’s full registration requirement from Texas was effective
under Indiana law because “[a] person who is required to register as a sex . . .
offender in any jurisdiction shall register for the period required by the other
jurisdiction or the period described in this section, whichever is longer.” Ind.
Code § 11-8-8-19(f). Although Tyson’s registration requirement appears to have
ended prior to this appeal, the question before us is whether the trial court erred
when it denied Tyson’s motion to dismiss his charge for failure to register,
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which offense occurred in December 2012. Tyson’s Texas registration
requirement extended until February 2014. Even though he is no longer
required to register, he was required to do so in 2012 at the time he was
charged.
[12] We conclude that Tyson had fair warning and notice that when he moved to
Indiana and subjected himself to Indiana’s laws, that he was required to register
as a sex offender. No new duty was imposed on Tyson as he was already
required to register in Texas, and the legal requirement that such registration
continue upon his relocation to Indiana already existed at the time of his move
in 2009 as SORA had changed in 2006. Therefore, Tyson’s status as a sex
offender was not triggered by moving to Indiana; it merely maintained the
status as it was. His requirement to continue registration as it already existed
was triggered when Tyson chose to subject himself to Indiana law by moving to
Indiana. Because Tyson had fair warning of the registration requirement,
SORA was not an ex post facto violation as applied to Tyson. Therefore,
because Tyson was lawfully required to register as a sex offender, the trial court
did not err when it denied Tyson’s motion to dismiss.
[13] Affirmed.
Friedlander, J., and Crone, J., concur.
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