Andrews v State

11-21-2012 Indiana:

Andrews v State
No. 29A02-1112-MI-1166.

Thomas Andrews ("Andrews") filed a petition in Hamilton Circuit Court requesting that his name be removed from Indiana's sex offender registry. Specifically, Andrews, who was convicted of sex offenses in Massachusetts in 1984, argued that his name should be removed from the registry pursuant to our supreme court's decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). Because we conclude that requiring Andrews to register as a sex offender violates Article 1, Section 24 of the Indiana Constitution prohibiting ex post facto laws, and that Indiana state courts do not have the authority to consider whether federal statutory penalties attach to Andrews's conduct, we reverse and remand with instructions to the trial court to grant Andrews's petition for removal from the sex offender registry.

Facts and Procedural History
In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-107 5. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14, 1989.

In 1993, Andrews, who had married, moved to Indiana to be closer to his wife's family.

In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address, but travels to locations in and out of the state to meet with his company's clients.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he was required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal of his name from the registry and arguing that pursuant to our supreme court's 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not required to register as a sex offender. The State opposed Andrews's petition and the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews's circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as "USSORNA"). On November 30, 2011, the trial court granted the State's motion for summary judgment and denied Andrews's motion. Andrews now appeals.1

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Indiana is the only state that has ever required Andrews to register as a sex offender, and he has resided in Indiana since 1997. But while Andrews may have a federal duty to register under US SORNA if he engages in interstate travel, and could be subject to prosecution in federal district court under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.

Andrews has filed his petition in Indiana state court seeking removal of his name from Indiana's sex offender registry. After acknowledging that our state sex offender registry law does not run afoul of the Ex Post Facto Clause of the United States Constitution, our supreme court concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition on ex post facto laws contained in the Indiana Constitution.8 Greater protection of Hoosiers's rights under the Indiana Constitution is not an uncommon principle in our state's jurisprudence.9 See Wallace, 905 N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002)) (stating "[t]he Indiana Constitution has unique vitality, even where its words parallel federal language").

Andrews, who on the record before us is an apparently rehabilitated and productive citizen of our state, was convicted of a sex offense almost thirty years ago, and well before Indiana enacted INSORA. Accordingly, pursuant to our supreme court's opinion in Wallace, we must conclude that Andrews's petition for removal of his name from Indiana's sex offender registry should have been granted.

Reversed and remanded with instructions to grant Andrews's petition for removal of his name and any other identifying information from Indiana's sex offender registry. VAIDIK, J. and BARNES, J., concur.