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Hevner v Indiana

1-6-2010 Indiana:

Hevner v Indiana
919 N.E.2d 109 (2010)

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.

... ... ...

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind.Code § 35-42-4-11, the residency restriction statute. Pollard,908 N.E.2d 1145, 1154 (Ind.2009) (noting that the defendant was charged and convicted for a crime qualifying him as an offender against children before the residency restriction statute was enacted and thus as applied violated the prohibition of the ex post facto laws contained in the Indiana Constitution).

However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that "have a reasonable relationship to the treatment of the accused and the protection of the public." Hale v. State,888 N.E.2d 314, 319 (Ind.Ct.App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

Conclusion
We reverse that portion of the trial court's sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.



1-7-2010 Indiana:

In Gary M. Hevner v. State, filed late this afternoon, a 6-page, 5-0 opinion, the Supreme Court concludes: "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender," reversing the trial court decision, which had been affirmed by this March 31, 2009 NFP Court of Appeals opinion.

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense. ***

At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender and thus was not required to register as such. * * * While Hevner was awaiting trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before Hevner was convicted but after he was charged – the legislature amended the statute to require anyone convicted of possession of child pornography to register as a sex offender regardless of whether the person had accumulated a prior unrelated conviction. * * * Thus, at the time of his conviction, Hevner was required to register as a sex offender. * * *

As a general rule, a court must sentence a defendant under the statute in effect on the date the defendant committed the offense. Biddinger v. State, 868 N.E.2d 407, 411 n.6 (Ind. 2007). Between October and November of 2005, when Hevner committed the crime of possession of child pornography, only persons convicted of a prior possession offense were required to register as sex offenders under the Act. By the time of Hevner‟s trial and sentencing the Legislature had amended the Act making it applicable to first time offenders. As applied to Hevner the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when the crime was committed. * * *

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind. Code § 35-42-4-11, the residency restriction statute. * * *

However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that “have a reasonable relationship to the treatment of the accused and the protection of the public.” Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings. ..Source.. by Marcia Oddi of the Indiana Law Blog

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