A TTORNEY S FOR A PPELLANT A TTORNEY FOR A P PELLEE

Gregory F. Zoeller Cara Schaefer Wieneke Attorney General of Indiana Indianapolis, Indiana
Frances Barrow A TTORNEY S FOR A MICUS C URIAE Deputy Attorney General I NDIANA O FFICE OF THE P UBLIC Indianapolis, Indiana D EFENDER Stephen T. Owens Public Defender of Indiana

` Emily J. Witney Gregory L. Lewis Deputy Public Defenders Indianapolis, Indiana

_______________________________________________ _______________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 52S02

- 1011

- CV

- 642
B RUCE L EMMON , IN H IS O FFICIAL C APACITY AS C OMMISSIONER OF THE I NDIANA D EPARTMENT OF C ORRECTION , Appellant ( Respondent b e low) ,

v.
M ICH AEL L. H ARRIS , Appellee ( Petitioner below)

.

_________________________________ Appeal from the Miami Circuit Court, No. 52C01

- 0709

- MI

- 644

The Honorable Robert A. Spahr , Judge

_________________________________ On Petition to Transfer from the Indiana Cour t of Appeals, No. 52A02

- 0911

- CV

- 1088

_________________________________2 June 28, 2011 Sullivan, Justice.

A sex offender who committed his crimes before the Legislature created the status of ―sexually violent predator‖ challenges that status being subse quently imposed up on him ― by o peration of law .‖ W e conclude that his status has in fact changed by operation of law and that this change does not violate Indiana‘s prohibition on ex post facto laws or doctrine of sep a ration of powers.
Background

In Apr il, 1999, Michael Harris pled guilty in Kosciusko Superior Court to child moles t ing as a Class B felony . He was sentenced to a prison term of ten years and was r e quired to register on the sex offender list for a period of ten years following his release f rom incarcer a tion. Harris was released to parole in 2002, 1 2005, and 2007, but was subsequently reincarc e rated each time for parole viol ations. He was last released on December 1, 2008 , 2 and has completed p a role

.
Either simultaneously with or p rior to his releases in 2007 and 2008, the Department of Correction notified Harris that he was required to register as a sexually violent predator (― SVP ‖) with local law enforcement for his lifetime. The notification forms included the que s tion ―Is the offender a sexually violent predator und er IC 35

- 38

- 1

- 7.5?‖ and a box that w as checked ―Yes.‖ Appellant‘s App. 104

- 05. The forms also included the question ―How long is the offender r equired to register u n der IC 11

- 8

- 8?‖ and a box that was checked ―Life.‖ Id. Harris refused to sign the forms on both occasions

. He acknowledge d that he must register with local law e nforcement as a sex offender for ten years but disagree d that he was an SVP and required to regi ster for lif e
.

1 Harris first registered as a sex offender after his release from prison in 2002. 2 Thus, Harris‘s ten

- year reporting obligation commenced on December 1, 2008, with his final release from incarcer ation.3

In September , 2007, while still incar cerated , 3 Harris filed a complaint in the Miami Ci rcuit Court for declaratory judgment and injunctive relief agains t the Commissioner of the Ind i ana Department of Correction 4 (referred to collectively with the Department of Correction as ―DOC‖). Arguing p rimarily that the DOC lacked the authority to make an SVP d e termination, h e r e quest ed a declaration that his reporting obliga tion was for ten years following his release from incarceration and further request ed that the DOC remove the term ―sex predator‖ a nd statement ―lifetime notification‖ from his offender detail and type on the Indiana Sh e riff‘s Sex and Violent Offender Regi stry website. 5

The trial court denied both parties‘ motions for summary judgment and, following a bench trial, entered a declarato ry judgment and injunctive relief for Harris, th ereby removing his SVP status.

The Court of App eals affirmed the trial court. I t held that the DOC was not authorized by statute to determine Harris‘s status as an SVP and that his status did not change by oper a tion of law under Indiana Code section 35

- 38

- 1

- 7.5(b). Buss v. Harris , 926 N.E.2d 1110, 1117

- 18 (Ind. Ct. App. 2010), reh‘g denied

. Thus, the Court of Appeals concluded that he was required to r eport for ten years and not for his lifetime, ― as the c hange to the duration of Harris‘s reporting o bligation would have occurred only by a finding a nd conclusion that his st a tus had changed.‖ Id. at 1118.

The DOC sought, and we granted, transfer, Buss v. Harris , — N.E.2d

— (Ind. 2010) (t able) , thereby vacat ing the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

3 According to the trial court, Harris chose to file his complaint prior to his release ―in order to call atte ntion to his plight triggered by the Indiana General Assembly‘s repeated amendments of Indiana Code [s]ection 35

- 38

- 1

- 7.5 since [he] was convicted.‖ Appellant‘s App. 9. 4 We note that Bruce Lemmon has taken the place of Edwin G. Buss as Commissioner of the Indiana D epartment of Correction, effective January 17, 2011. IDOC: Biographies, http://www.in.gov/ idoc/2347.htm (last visited June 27 , 2011). As the successor to Commissioner Buss, Commissioner Lemmon has been automatically substituted as a party pursuant to Indiana Trial Rule 25(F)(1). 5 It is not clear on what date the website was updated to reflect the fact that Harris was an SVP with a lifetime

- registration requirement.4 Discussion

I

T he Indiana Sex Offend er Registration Act (the ―Act‖) generally requires persons co nvicted of certain offenses to register with local law enforcement agencies and to dis close d e tailed personal information. This Court has been required to interpret the Act in several cases in recent years. S ee Hevner v . State , 919 N.E.2d 109 (Ind. 2010) (considering whether the Act as a p plied violates Indiana ‘s prohibition on ex post fac to laws); State v. Pollard , 908 N.E.2d 1145 (Ind. 2009) (same) ; Jensen v. State , 905 N.E.2d 384 (Ind. 2009) (plurality opinion) (same); Wallace v. State , 905 N.E.2d 371 (Ind. 2009) (same); Jones v. State , 885 N.E.2d 1286 (Ind. 2008) (conside ring when the A ct requires the trial cour t to make an SVP determin a tion).

One of the reasons we have had so many cases involving the Act is that it has been amended multiple times since first being enacted in 1994. See Wallace , 905 N.E.2d at 374

- 77 (outlining the his tory of the Act and its various amendments) ; Doe v. O‘Connor , 790 N.E.2d 985 , 986

- 87 (Ind. 2003) (same). Here is a brief sketch of the Act‘s evolution (with the key changes from year

- to

- year emphasized) :

1. The Act as amended through 1997 (―1997 Act‖) :
a. A se x ―offender‖ is defined as a person convicted in Indiana after June 30, 1994, of a qualifying offense listed in Indiana Code section 5

- 2

- 12

- 4(1) (Supp. 1997); this list included child molestation. I.C. § 5

- 2

- 12

- 4(1)(C). b. A sex ―offender‖ is required to reg ister with local law enforcement agencies and to disclose detailed personal information , I.C. §§ 5

- 2

- 12

- 5,

- 6, for ten years after the latter of his or her release from prison, placement on parole, or placeme nt on pr o ba tion, I.C. § 5

- 2

- 12

- 13.
The 199 7 Ac t was the version of the statute in effect at the time Harri s committed his offenses and applied to his sentencing. 6

6 The conduct for which Harris was convicted occurred between February, 1997, and March, 1998. A ppellant‘s App. 10.5

2. As a mended in 1998 (―1998 Amendment‖) :
a. A sexually violent predator ( “SVP” ) is defined as ―an individual who suffers from a mental abnorma lity or personality disorder that makes the individual lik e ly to repeatedly engage in any of the offenses described in section 4 of this chapter.‖ Ind. Code § 5

- 2

- 12

- 4.5 (1998); see Pub. L. No. 56

- 1998, § 7, 1998 Ind. Acts 917, 924 (effective July 1, 1998 ). b. The court is required to determine at the sentencing hearing whether a person is a n (“SVP”) after consulting with two board certified psychologists or psychiat rists. I.C. § 35

- 38

- 1

- 7.5(c). c. A n SVP is required to register for an indefinite period unles s and until a court, assisted by a board of experts, finds that the offender is no longer an SVP. I.C. § 5

- 2

- 12

- 13(b).

3. As a mended in 2003 (―2003 Amendment‖) :
a. A n SVP is required to register for life . Ind. Co de § 5

- 2

- 12

- 13(b) (Supp. 2003).

4. As a mended in 2006 (―2006 Amendment‖) :
a. A person is an SVP in one of two ways : i. Subsection (b)

– a person is an SVP if he or she, being at least eighteen years of age, commits a qualifying offense , Ind. Code § 35

- 38

- 1

- 7.5(b) (Supp. 2006); t his list included child mole s ti ng as a Class A or Class B felony

. I.C. § 35

- 38

- 1

- 7.5(b)(1)(C). ii. Subsection (a)

– a person is an SVP if he or she ― suffers from a mental abnormality or personality disorder that makes the individual likely to r epeatedly engage in an y of the offenses des cribed in [Ind. Code section 11

- 8

- 8

- 5].‖ I.C. § 35

- 38

- 1

- 7.5(a) (emphasis added) (formerly Ind. Code § 5

- 2

- 12

- 4.5). 7 b. The court is required to determine at the sentencing hearing whether the person is an SVP under subsection (b) ; if the court does not find the person to be an SVP under subsection (b) , the court is required to consult with experts to dete rmine if the pe r son is an SVP under subsection (a)

. I.C. § 35

- 38

- 1

- 7.5 (d )

- (e).

5. As a mended in 2007 (―2007 Amendment‖) :
a. Subsection (b) amended

– a person is an SVP ― by operation of law if an offense committed by the person [is a qualifying offense] and the person was released

7 Indiana Code chapter 5

- 2

- 12 was repealed in 2006, when the Legislature moved the statutes g o ve rning sex offender registration from Title 5 (State and Local Administration) to Title 11 (Co r rections) of the Indiana Code. Pub. L. No. 140

- 2006, §§ 13, 41, 2006 Ind. Acts 2306, 2316, 2367; Pub. L. No. 173

- 2006, §§ 13, 55, 2006 Ind. Acts 3620, 3630, 370 9. Indiana Code chapter 11

- 8

- 8 now contains the various se ctions dealing with the sex offender registry, and it still r e quires SVPs to register for life. Ind. Code § 11

- 8

- 8

- 19(b) (2010).6 from incarceration, secure detention, or probatio n for the offense after June 30, 1994.‖ 8 Ind. Code § 35

- 38

- 1

- 7.5(b) ( Supp. 2007 ) (emph asis added). b. The court is required at the sentencing hearing to ― indicate on the record whet h er the person has been convicted of an offense that makes the person a sexually vi olent predator under subsection (b).‖ I.C. § 35

- 38

- 1

- 7.5(d) (emphasis ad d ed)

. c. The c ourt no longer “determine s ” SVP status at the se n tencing hearing unless a person is not an SVP under subse c tion (b) and t he prosecuting attor ney request s a hearing to determine whether the person is an SVP under subsec tion (a). I.C. § 35

- 38

- 1

- 7.5(e ). If the court grants the request, it must conduct the hearing and consider the testimony of two experts before determining whether the pe r son is an SVP under subsection (a). Id.

I I

The enactments outlined above apply to Harris as follows:

1. Becau se Harris committed his crime s while the 199 7 Act was in effect, he was a sex ―offender‖ and was required to register with local law enforc ement agencies and to disclose detailed personal information for ten years after release. 9
2. Harris was not affecte d by the 1998 Amendment, 2003 Amendment, or 2006 Amendment when they were enacted

. The State takes the position that the 2007 Amendment applies to Harris because he was convicted of one of the qualifying offenses and b e cause he was released from prison after June 30, 1994 . As such , the State maintains, he became an SVP by ― operation of law ‖ pursuant to the 2007 Amendment and, as an SVP, is subject to the lifetime

- registration requirement for SVPs enacted in the 2003 Amen d ment.

Harris contends that he is not subject to the 2007 Amendment. Specifically, h e argues that the DOC is not authorized to change his status to SVP where the trial court at sentencing did not make that d e termination and further argues that his status did not change by operation of law. Both the trial court and Court of Appeals agreed. We, however, reach a different concl u sion.

8 This provision became effective on May 10, 2007. Pub. L No. 216

- 2007, § 37, 2007 Ind. Acts 3281, 3319

- 20. 9 It is well

- settled that, ―[a]s a general rule, a court must sentence a defendant under the st a tute in effect on the date the defendant committed the offense.‖ Hevner , 919 N.E.2d at 112 (citation omi t ted). The p arties in this case do not challenge the applicability of the 1997 Act to Harris‘s offense.7

The Court of Appeals relied heavily on our opinion in Jones v. State , 885 N.E.2d 1286 (Ind. 2008) , in concluding that Harris‘s status did not change by op eration of law to SVP. Ha rris , 926 N.E.2d at 1116

- 18. But we do not think that Jones supports such a conclusion. The d efendant in Jones challenged the SVP determination made at his probation revocation hearing in March, 2007. 885 N.E.2d at 1287

- 88. He contended that the probation revocation court could not change his status to SVP becau se the statute required th at the court ―dete r mine‖ whether a person was an SVP at the sentencing hearing. Id. at 1288. We agreed that the statute in effect at the time the trial court changed Jones‘s status 10 required that determin a tion to have been made at the sentencing hearing, and we accordingly granted him relief. Id. at 1288

- 89. However, we recognized that in the 2007 Amendment , the Legislature had changed the Ac t to include the ―a utomatic designation of SVP status to persons who commit certain designated o f fenses.‖ Id. at 1289 n.3.

Harris makes a similar argume nt to that which succeeded in Jones

. H is argument , ho wever, fails because under the 2007 Amendment , t he Legislature had changed the Act from requi ring the court to determ ine SVP status at the sentencing hearing to the ―auto matic design a tion of SVP status.‖ A t the time Harris was released from prison in December, 2007, the sentencing court was no longer r equired to have ―determined‖ a person‘s SVP status. 11 Instead , the statute in effect at that time provided that a pe r son is an SVP ― by operation of law ‖ under Indiana Code section 35

- 38

- 1

- 7.5(b) if he or she committed one of the designated offenses; Indian a Code se c-

10 W e actually referenced in the Jones opinion portions of the 2001 statute that had been cited by the trial court and not the 2006 Amendment that was in existence at the time the trial court changed Jones‘s st a tus. Jones , 885 N.E.2d at 1288

- 89. The difference was not material for purposes of that case because both versions required that the court ―determine‖ whether the person was an SVP at the sentencing hea r ing

. Ind. Code § 35

- 38

- 1

- 7.5(c) (Supp. 2001); Ind. Code § 35

- 38

- 1

- 7.5(d) (Supp. 2006). 11 We note that Harris had attended a meeting at the Miami Correctional Facility in February, 2007, where he had learned of the potential applicability of the 2006 Amendmen t to Indiana Code section 35

- 38

- 1

- 7.5. A p pellant‘s App. 15. Harris apparently filed grievances with the DOC in March, 2007, and April, 2007, challenging the ―potential‖ change of his status to SVP. Id. at 16, 17. Harris filed his co m plaint with the Mia mi Circuit Court on September 17, 2007. Id. at 21. It appears Harris was first notified that his status had actually changed sometime in December, 2007, when he received the notifi cation form from the DOC. Id. at 104. Harris was then reincarcerated for parole violations and was last released from pri s on in December , 2008; he was again notified that he had to register as an SVP. Based on this, it is clear that Harris‘s status had not officially changed to SVP until well after the effective date of the 2 007 Amen dment.8

t ion 35

- 38

- 1

- 7.5(d) only required that the sentencing court ―indicate on the record‖ whether he or she had committed such an offense. 12 Moreover, unlike the 2006 A mendment, the 2007 Amendment explicitly state s that its provisions appl y to persons who commit designated offenses and are ―released from incarceration, secure detention, or prob a tion for the of fense after June 30, 1994.‖ Ind. Code § 35

- 38

- 1

- 7.5(b ) (Supp. 2007 ).

Based on its plain language , we conclude that Indiana Code section 35

- 38

- 1

- 7.5 applies retroactively to Har ris . Specifically, b ecause Harris was convicted of child moles ti ng as a Class B felony (o ne of the qualifying offenses ) and b e cause he was released from incarceration after June 30, 1994 , the statute provides that his st atus is SVP by operation of law

. 13 Of course , Ha rris ‘s classification as an SVP by opera tion of law is only valid if application of the Act does not violate applicable provisions of constitutional law

.

II I

Harris contends that his classification as an SV P under the 2007 A mendment with the e ffect of converting his ten

- year registration requir e ment into a lifetime

- registration requirement violates the Ex Post Facto Clause of the Indiana Constitution. 14 The Indiana Constitution pr ovides that ―[n]o ex post fa cto law . . . shall ever be passed.‖ Ind. Const. art. I, § 24. In general,

12 Our conclusion that the 2007 Amendment eliminated any ―determination‖ by the sentencing court for certain offenses is further supported by the change to Indiana Code section 35

- 38

- 1

- 7.5(e). The 2006 Amendment provided, in relevant part: ―If the court does not find the person to be a sexually violent pr edator under subsection (b).‖ Ind. Code § 35

- 38

- 1

- 7.5(e) (Supp. 2006) (emphasis added). Compare that language to the 2007 Amendment: ―If a person is not a sexually violent predator under subse c tion (b).‖ Ind. Code § 35

- 38

- 1

- 7.5(e ) (Supp. 2007) (emphasis added). 13 Harris does not fall under the exception contained in Indiana Code section 35

- 38

- 1

- 7.5(h), which pr ovides that a person is not an SVP by operation of law if seven conditions ar e met. Harris‘s charging i nformation indicates that he was over the age of 21 when he was convicted, and the child was under the age of 14. A p pellant‘s App. 126. Thus, Harris was more than 4 years older than the victim and does not fall within subsectio n (h). See Ind. Code § 35

- 38

- 1

- 7.5(h)(2 ) (Supp. 2007) (requiring as a cond i tion that the person not be more than four years older than the vi c tim). 14 Harris seems to argue only a violation of the Ex Post Facto Clause of the Indiana Constitution and not a violation of that provision in the U.S. Constitution. See Appellant‘s App. 16 (referencing the prov i sion of the Indiana Constitution in the complaint). In any event, we have recognized that our Act is similar to one already upheld by the U.S. Supreme Co urt under the U.S. Constit u tion, and therefore, using the same analytical framework employed to evaluate ex post facto claims under the federal constitution, we have ev a luated previous claims only under the Indiana Constitution. Hevner , 919 N.E.2d at 111; Jensen , 905 N.E.2d at 390; Wallace , 905 N.E.2d at 377

- 79.9

the Ex P ost F acto C lause forbids laws imposing punishment for an act that was not otherwise punishable at the time it w as committed or imposing additional punishment for an act th en pr oscribed. Wallace , 905 N.E.2d at 377 . ― A law is ex post facto if it  ̳substantially disadva n tage[s] [a] defendant because it increase [ s ] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] def endant of some defense or lesser p u nishment that was available at the time of the crime.‘‖ Stroud v . State , 809 N.E.2d 274, 288 (Ind. 2004) (alteration in original) (quoting Crawford v. State , 669 N.E.2d 141, 150 (Ind. 1996)). Underl ying the Ex Post F act o C lause is the desire to give people fair warning of the conduct that will give rise to criminal penalties. Wallace , 905 N.E.2d at 377 (citing Armstrong v. State , 848 N .E.2d 1088, 1093 (Ind. 2006)).

In evaluating ex post f

acto claims under the Indiana Constitution, we apply the familiar ―intent

- effects‖ test adopted in Wallace v. State

. Id. at 378 (relying on Smith v. Doe , 538 U.S. 84, 105

- 06 (2003))

. Under this test, we first determine whether the L egislature meant the Act to establish civil proceed ings. Id. If instead its intention was to impose punishme nt, then the i nquiry ends

. Id. However, if the L egislature in tended a non pun i tive r egulatory scheme, then we must examin e the Act ‘s effect s to dete r mine whether they are in fact so punitive as to trans form the regulatory scheme into a criminal penalty; if so, then retroactive application of the law v iolates the Ex Post Fa c to Clause

. Id.

As we recognized in Wallace , id. at 379, and Jensen , 905 N.E.2d at 390 , it is difficult to determine any int ent here given the lack of legislative history and purpose statement. And, legi slative intent cannot clearly be discerned from the location of the statute s within the Code. As noted in Jensen , the statutory provision for determining whether a person is a n SVP is l o cated within the criminal code, while the provision for registration and the duration of the re g istration period is located in the Title dealing with the De partment of Correc tion

. 905 N.E.2d at 390. Nevertheless, the party challenging the cons titutionality of the statute bears the burden of proof, and in this case, Harris has not cited any evidence of a punitive intent on the part of the Legisl ature with respect to the 2007 A mendment. See id. at 390

- 91 (noting that ―every st a tute stands before us clothed with the presumption of constitutionality until that presumption is clearly ove rcome by a contrary showing ‖ (citation omitted) ). Thus , we will presume that the Legisl a ture‘s10

intent was civil and regulatory in relation t o Harris‘s claim that ap plication of the 2007 A men dment v i olate s the Ex P ost F acto Clause.

Having found no punitive intent on the part of the Legislature, our task now is to dete rmine whether the effect s o f applying the regulatory scheme embodied in the 2007 A men d ment

are p uniti ve as to Harris . We are guided by seven factors:
[1] W hether the sanction involves an affirmative disability or restraint, [2] whet her it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter , [4] wh ether its operation will promote the traditional aims of punish ment

– retribution and deterrence, [5] whether the 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 exce ssive in relation to the altern a tive purpose assigned.

Wallace , 90 5 N.E.2d at 379 (alteration in original) (quoting Kennedy v. Mendoza

- Martinez , 372 U.S. 144, 168

- 69 (1963)). But, before we begin our analysis of these f actors, we note that Harris is in a very similar position as Jensen (whose ex post facto claim failed). Jensen , 905 N.E.2d at 394. In both cases, neither men were SVPs initially; it was only by retroactive applic a tion of the
statute s that they b e came S VP s
. Both brought ex post facto challenges within their original ten

year registration requirement ; they had not registered for any additional time beyond their orig inal ten years

. Harris d iffers though in two ways

– the conduct leading to his conviction o ccurred before the S VP designation even existed , 15 an d his cha l lenge is to the 2007 A mend ment to the Act. Thus, using Jensen as a touchstone, our analysis will fo cus on whether these two differen ces in particular make the Act any more or less punitive as a pplied to Ha rris. 16

First, we note that t he Act imposes significant affirmative obligations on everyone to whom it applies. Id. at 391. Harris must re gister and re
- register, disclose public and private i nformation, and update that information ; he faces the sa me duties and restraints as Jensen

. S e e id.

15 As mentioned in footnote 6, supra , the conduct for which Harris was convicted occurred between Fe bruary, 1997, and March, 1998. Appellant‘s App. 10. The SVP designation became e f fective on July 1, 1998. 16 Harris apparently raised the ex post facto issue to the trial court, but because he won at that level on other grounds, he did not delineate his arg u ments under these factors in his brief to the Court of Appeals. See Appe l lee‘s Br. 11

- 13.11

at 391 (requiring at

- home visitation, valid identificati on at all times, notification of change s in residence, etc.)

. But we note that even at the time Harris committed his o f fense a nd at the time of his plea agreement , sex offenders were required to register with local law enforcement, to di sclose public and private information, and to provide notification of changes in address. Ind. Code § § 5

- 2

- 12

- 5,

- 6,

- 8 (Supp. 1997); Ind. Code § § 5

- 2

- 12

- 5,

- 6,

- 8 ( 1998); see also Ind. Code § 5

- 2

- 12

- 8.5 (1998) (requiring verification of offender‘s current residence). I n deed, like Jensen, Harris was subject to t hese restraints even before his offense qualified him as an SVP

. See Je nsen , 905 N.E.2d at 3 92 (―Nothing m entioned above imposes any greater burden on Jensen or has any greater adverse affect now that he is required to register for a longer p e riod.‖). Nevertheless , SVPs are treated differently than other offenders in some ways . S pecif i cally, they are require d t o
re
- register in person with local law enforcement and to be phot o graphed every 90 days instead of annually, Ind. Code § 11

- 8

- 8

- 14 ( Supp. 2007 ) ; to inform in person local law enforcement autho rities of their plans to travel from their principal place of re s idence for more than 72 hours and also notify in person local law enforcement a u thorities at their destination, I.C. § 11

- 8

- 8

- 18; and
to re
- register for life, I.C. § 11

- 8

- 8

- 19. These additional r e straints, in particular the increase to a life time

- regi stration requirement, lean in favor of treating the effects of the Act as punitive when applied to Ha r

ris. 17

Although the Act does not expressly impose sanctions that have historically been cons idered punishment, we have concluded that ― ̳the disseminatio n provision at least resembles the punishment of shaming.‘‖ Jensen , 905 N.E.2d at 392 (plurality opinion) (citation omitted). But again, e ven at the time Harris committed his offense and at the time of his plea agreement , the sex offender registry was av ailable on comput er disk and was pro vided by paper copy to va r ious

en titi es dealing with children. Ind. Code § 5

- 2

- 12

- 11 (Supp. 1997) ; Ind. Code § 5

- 2

- 12

- 11 (1998) . Now, a ll offenders, not just SVPs , must also submit their photograph s, and their info rmat ion is readily available to anyone who wishes to view it

. Ind. Code § 11

- 8

- 8

- 8 (Supp. 2007); Jensen , 905 N.E.2d at 392. Whether the offender provides the inform a tion for ten years or for

17 Ind eed, we are concerned mostly with the lifetime

- registration requirement, as it is clear to us that the ―lesser new obligations imposed by the [2007 Amendment] are not themselves punishment.‖ Jensen , 905 N.E.2d at 396 n.1 (Sullivan, J., concurring in resul t). Similarly, we do not think that the stigma associated with the status of SVP is in itself greater punishment than that imposed by the status of sex ―offen d er.‖12

life, the Act has the effect of increasing sham e on an of fender, and ther e fore, lean s in favor of treating it as punitive when applied to Ha r ris.

By and large, the Act only comes into play upon a finding of scienter , 18 which suggests that it is likely to be intended as punishment. Wallace , 9 05 N.E.2d at 381. In this case though, Harris ‘s qualifying offense is one of the few offenses included in the Act for which there is no scienter requirement. Id. at n.11 ; see Ind. Code § 35

- 42

- 4

- 3 ( Supp. 2007 ) (no scienter requir ement for the offense of child molesting where there is sexual intercourse or deviate sexual co nduct with a child under the age of fourteen). Thus, it seems that this factor would not be pun i tive as applied to him , although we have been reluctant in the past to conclude that the few non
scienter exceptions imp ly a non punitive effect as a whole

. Compare Pollard , 908 N.E.2d at 1151

- 52 (noting that this factor would not be punitive as to Pollard if he were convicted of child molest ing), with Wallace , 905 N.E.2d at 381 (noting that the fe w exceptions to this requi r e ment do not imply a non punitive effect).

If the Act operates to promote the traditional aims of punishment, then it is more likely punitive than regulatory. Jensen , 905 N.E.2d at 393. Here, the Act deter s criminal conduct and promote s community condem nation of offenders

– both of which are traditional aims of punis hment

– but it promoted these aims even when Harris committed his offense and pled guilty

. Id. And, these effects apply the same to an offender who is required to register for ten years a s to one who is required to register for life. Id. As to this factor, Harris, like Jensen, is in no di f ferent position than before the 2007 Amendment

. Id. Thus, this factor favors treating the effe ct s of the Act as non punitive when a p plied to Harris.

Mo reover, the Act applies only to criminal behavior, which suggests that its effects are punitive. Id. But, like Jensen, Harris was required to register because his behavior was crim i nal even before the 2007 A mendment. Id. Like Jensen, Harris is in the s ame position as he was when he pled guilty except for an extended period of registration. Id. This factor leans t o ward
tr eating the effects of the 2007 A mendment as nonpunitive when applied to Ha rris.

18 The term scienter is Latin for ―knowingly‖ and is defined as ―[a] degree of knowledge that makes a pe rson legally responsible for the consequences of his or her act or omission.‖ Black‘s Law Di c tionary 1463 (9th ed. 2009).13

As noted in both Wallace and Jensen , the Act undou btedly advances a legitimate, regul atory purpose in that promotes public safety. To be sure, we have recognized that ―registration systems are a leg i timate way to protect the public from repeat offenders.‖ Wallace , 905 N.E.2d at 383. This factor clearly favors trea t ing the effec ts of the Act as nonpunitive.

Finally and most importantly, as applied to Harris, the Act‘s requirements are not exce ssive in relation to its legitimate, regulatory purpose. Like Jensen, many of the Act‘s registration and disc losure requirements were in place and applied to Harris at the time he committed his o ffense and at the time he pled guilty to child molesting , well before the 2007 Amendment

. 19 Fu rther, l ike the 2006 Amendment , the 2007 Amendment provide s that in ten year s from the date of his release from prison

– the time frame in which Harris was originally required to regi s ter

– he may petition the court ―to consider whether [he] should no longer be considered [ a n SVP].‖ Ind. Code § 35

- 38

- 1

- 7.5 (g) ( Supp. 2007 )

. And , under th e 2007 Amendment , the court at that point

ma y 20 determine if Harris presents a future threat

– i.e. , ―suffers from a mental abnormality or pe r sonality disorder that makes [him] likely to repeatedly commit a sex of fense, ‖ I.C. § 35

- 38

- 1

- 7.5(a)

– afte r consulting with two psychologists or psychiatrists who have expertise in criminal behavioral disorders. I.C. § 35

- 38

- 1

- 7.5(g). As we read the 2007 Amendment, i f he is not an SVP under this standard, then he no long er has to register as one and his life time

- registration r equirement terminates . But if he is, then the Act requires h im to continue to register; he can pet ition the court again to d e termine his SVP status in another year. Id.

It is clear to us that this provision of the 2007 Amendment advan ces the Act‘s legitimate regul a tory purpose of public safety

– by its terms, only those people who present a future threat are require d to regis ter for their lifetimes

. Because of this provision allowing for an individu alized determina tion based on his li kelihood to reoffend after his original ten

- year registration r e-

19 The fact that Harris‘s acts could not have qualified him as an SVP at the time he committed them b ecause the status was not yet in e x istence does not mean that the Act is any more punitive as applied to him; as noted in footnote 1 7 , supra , we are mostly concerned with the imposition of a lifetime

- registration requirement, not the stigma as sociated with the SVP status. Unlike the d e fendants in Hevner , 919 N.E.2d at 110, and Wallace , 905 N.E.2d at 373, Harris was subject to a registration requirement at the time he committed his offense because child molesting was a qu a lifying offense even under the 1997 Act. Ind. Code § 5

- 2

- 12

- 4(1)(C) (Supp. 1997). 20 We note that a court may dismiss a petition filed under Indiana Code section 35

- 38

- 1

- 7.5(g).14

quirement is up, the 2007 Amendment seem s even less puniti ve as applied to Harris than as to Jen sen under the 2006 A mendment. Cf. Jensen , 905 N.E.2d at 398 (Boehm, J., dissenting) (―Without s ome individualized determination of continued risk, the requirements of the 2006

amen d ments are excessive in relation to their stated purpose

. ‖ ).

In sum, Harris‘s claim fails for the same reasons Jensen‘s claim failed. See also Vic k ery
v. State , 932 N.E. 2d 678, 68 0

- 83 (Ind. Ct. App. 2010) (rejecting an ex post f acto claim u n der the reasoning of Jensen ). The firs t three factors may lean toward treating the Act as pun i tive, but the other four

– and part icularly the last factor

– lean in f avor of treating t he Act as non punitive when applied to Harris. 21

I V

Harris , support ed by a helpful amicus brief from the Indiana Office of the Public Defen der, also raises another constitutional argument with res pect to the 2007 Amendment , one that we have yet to conside r in our previous cases dealing with the Act. Relying on the S u preme Court of Ohio‘s recent decision in State v. Bodyke , 126 Ohio St. 3d 266, 2010

- Ohio

- 2424, 933 N.E.2d 753, he contends that the Act violates the constitutional principle of separation of p owers. Sp ecifically, Harris maintains that the automatic designation of offenders as SVPs ―by ope r ation of law‖ has the effect of permitting the DOC, an executive branch of state government , to reopen final judgments and there by exercise a function reserv ed to the judiciary by the Indiana Constit ution.

21 Before our decision in Jensen , w e wrote that the lifetime

- registration requirement has ― ̳penal implic ations.‘‖ Jones , 885 N.E.2d at 1289 n.3 (quoting Thompson v. State , 875 N.E.2d 403, 409 (Ind. Ct. App. 2007), trans. denied , abrogated in part by Williams v. State , 895 N.E.2d 377, 387

- 88 (Ind. Ct. App. 2008)). And w e note that prior to our decision in Jensen the Court of Appeals f ound that appl y ing the 2006 A mend ment would violate the Ex Post Facto C lause. Padgett v. State , 875 N.E.2d 310, 319 (Ind. Ct. App. 2007) (concluding that the defendant‘s plea agreement ultimately controlled the ou t come of the case), trans. denied . But, f or the reasons discussed above, the application of the lifetime

- registration r equirement is not punitive as applied to Harris, especially since he may only be required to register for life if, as determined by a court with the assistance of two experts, he is likely to reoffend

– a requir e ment that most assuredly advances the Act‘s legitimate regul a tory purpose.15

The separation of powers or functions provis ion of the Indiana Constitution divides the functions of the government into three departments

– the Legislative, the Executive, and the Judicial

– and provides that ―no person, charged with official duties under one of these depar tments, shall exercise any of the functions of another, except as in this Constitution expressly provided .‖ Ind. Const. art. III, § 1. In general, t his provision recognizes ― that each branch of the government has specific duties and powers that may not be usurped or infringed upon by the ot her branches of government.‖ State v. Monfort , 723 N.E

. 2d 407, 41 1 (Ind. 2000). A l though the Legislature ―has the authority to provide which acts s hall be crimes in our society and to provide [for their] penalties,‖ State v. Palmer , 270 Ind. 493, 497, 386 N.E.2d 946, 949 (1979), the Jud iciary possesses the authority to ―fix the penalty of and sentence a person convicted of an o ffense,‖ Ind. Code § 35

- 50

- 1

- 1 (2008). I t is wel l

- settled under th e doctrine of separation of po wers that the Legislature cannot interfere with the discharge of judicial duties or set aside a final judgment of a court. Monfort , 723 N.E.2d at 411 (collecting cases) ; Thorpe v. K ing , 248 Ind. 283, 286

- 87, 227 N.E.2d 169, 171 (1967); Kunkel v. Moneyhon , 214 Ind. 606, 609, 17 N.E.2d 82, 83 (1938)

.

In State v. Bodyke , the Ohio Supreme Court declared unconstitutional certain prov i sions of Ohio‘s Adam Walsh Act that required the atto rney general to reclassify sex offen d ers who had already been classified by court order under a former law

. 933 N.E.2d at 767 , ¶¶ 60

- 61 . Accor ding to the court, these provisions violated separation of powers by ( 1) requir ing the ope n ing of final judg ment s and ( 2) impermissibly instruct ing the executive branch to review past d e ci sions of the judicial branch

. Id. R eclassification under Ohio‘s Act was based solely by refe r ence to the offense and without the involvement of any court. Id. at 7 59

- 6 0 , ¶¶ 21

- 2 2

. Thus, t he Act effectively stripped the trial court ― of any power to engage in independent fact

- finding to dete rmine an offender‘s likelihood of rec i divism.‖ Id. at 760, ¶ 22.

But unlike the Ohio Supreme Court, we do not think that t he ―b y operation of law‖ clause work s to reopen a final judgment in the present case. As noted above, Harris‘s ex post f acto a rgument is that he could not have been found to be an SVP at the time he was sentenced in 1999 because that status did not exist at the time he co mmitted his offense ; i nstead, his sentencing court only required that he ―be enrolled on the sex offender list.‖ Appellant‘s App. 132. But h e16

was an ― offender ‖ under the 1997 Act because he was convicted of an offense that qualified him
as one; his sente ncing court did not make that determination , the Indiana Code did

. Ind. Code § 5

- 2

- 12

- 4 (Supp. 1997); c f

. Bodyke , 933 N.E.2d at 773 , ¶ 99 (Cupp, J., dissenting) ( re a soning that reclassification did not change a prior judicial determination because that de termination a t tached as a matter of law). 22 This is not the case where his sentencing court cons i dered expert testimony and expressly refused to classify Harris as an SVP

. Cf. Progressive Improvement Ass‘n of Downtown Terre Haute v. Catch All Corp. , 254 I nd. 121, 125

- 26, 258 N.E.2d 403, 405 (1970) (trial court‘s findings of fact after evidentiary hearing form ed the basis of a final jud g ment that

c ould not be altered a f

terwards by a board of public works). In other words , the ―by operation of law‖ clause d id not change a judicial determination that Harris was not an SVP to him b e ing an SVP

.

Nor do we think that the ―by operation of law‖ clause removes the judiciary‘s discreti onary function in sentencing and place it with the DOC. T h e statute does not gra nt the DOC any auth ority to classify or reclassify

. SVP status under Indiana Code section 35

- 38

- 1

- 7.5 (b) is d etermined by the statute itself

. Cf. Nichols v. State , 947 N.E.2d 1011, 1016

- 17 (Ind. Ct. App. 2011) (noting that the duration of the reporting p eriod is dete r mined by the Act itself).

U nlike the statute at issue in the Ohio case, Indiana‘s Act preserves the judiciary‘s role in determining the status of offenders and their li kelihood to reoffend. We note that effective Ma rch 24, 2010, an offend er may petition a court to remove his or her designation or to make less restrictive his or her registration requirement by filing a petition in the circuit or superior court of th e county in which he or she reside s under Indiana Code section 11

- 8

- 8

- 22 (20 10). Pub. L. No. 103

- 2010, § 2, 2010 Ind. Acts 1198, 1200; see Clampitt v. State , 928 N.E.2d 210, 213

- 14 (Ind. Ct. App. 2010) ( directing offender to file petition under amended statute) ; Wiggins

22 T he Court of Appeals of Ohio has issued apparently conflicting opinions as to whether the hol d ing of Bodyke applies in a case where there was no prior court order classifying the offenders under a sex o ffender category. Compare Green v. State , No. C

- 090650, 2010 Ohio App. LEXIS 3700, 2010 WL 3610203, 2010

- Ohio

- 4371, ¶¶ 6

- 10 (per curiam) (holding Bodyke does not apply where there was no prior co urt order classifying the offender) , discretionary appeal granted , 127 Ohio St. 3d 1531 , 2011

- Ohio

- 376, 940 N.E.2d 985, with Speight v. State , Nos. 96041, 96042, 96043, 96044, 96045, 2011 Ohio App. LEXIS 2467, 2011 WL 2436606, 2011

- Ohio

- 2933, ¶¶ 21

- 22 (disagr eeing with Green and a p plying Bodyke to cases where classification was determined by oper a tion of law).17

v. State , 928 N.E.2d 837 , 840 (Ind. Ct. App. 2010) ( same )

. 23 Additionally , as noted above, an SVP may petition the court after ten years of registering to determine whether he is likely to reoffend

. Ind. Code § 35

- 38

- 1

- 7.5(g) (2008 )

. Thus, t o the extent SVP status is the d e fault under the Act for persons who comm it certain offenses , the Act contains provisions to e n sure that the status is just that

– a default. If anything, it leaves to the courts at various sta g es the power to determine the status of offenders and their likelihood of recidivism. But cf. Progres sive I mprovement Ass‘n , 254 Ind. at 126, 258 N.E.2d at 40 5

- 0 6 (noting that the invalidity of the st a tute stems from the r e quirement that a court‘s final judgment be subject to alteration by a board of public works not from the failure of the statute to pro vide judicial review of the board‘s exe r cise of power).

C onclusion

Harris‘s status is an SVP by operation of law, and th at classification does not violate the Indiana Constitution ‘s Ex Post Facto Clause or separation of powers provision . The jud g men t of the trial court is r e versed.

Shepard, C.J., and Rucker and David, JJ., concur.

Dickson, J., dissents with separate opinion.

23 Under Indiana Code section 11

- 8

- 8

- 22(j), offenders may base a petition on a claim that the appl i cation or registration requirements constitute ex post facto punishment. Unlike the courts in Clampitt and Wi ggins , cases decided only a week after the present one in May, 2010, the Court of Appeals in this case did not direct Harris to file a petition under Indiana Code section 11

- 8

- 8

- 22. The DOC o nly ment ions this section once , and neither party argues that this case should have been disposed of in a way similar to Clampitt and Wiggins

.Dickson, Justice, dissenting

.

I respectfully dissent. In accord with the dissent in Jensen v. State , 905 N.E.2d 384, 39 6

– 98 (Ind. 2009) ( Boehm, J., dissenting ), I believe that the defendant's reclassification and the resulting enhanced requirements under the 2007 Amendment constitute additional punishments that violate the Ex Post Facto Clause of the Indiana Constitution w hen applied to this defendant, who was sentenced in 1999.