Gonzalez v State

11-24-2014 Indiana:

Gonzalez v State

On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation1 based on his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three years, with eighteen months incarcerated and eighteen months on probation.

On September 15, 1999, Gonzalez was discharged from probation and began registering as a sex offender, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). See Ind.Code § 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).

Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the details of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement.

On January 27, 2011, Gonzalez, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22." (App. at 34.) The trial court denied the petition on July 22.

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The requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. See Ind.Code § 11-8-8-19(c) (assigning lifetime registration requirement to person over eighteen years old who committed offense on victim under twelve). Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his lifetime registration requirement.

Additionally, unlike both Flanders and Jensen, whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind.Code § 11-8-8-19(c), which does not classify him as an SVP or provide a mechanism by which he could petition the court for removal of that requirement.4

Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.

We therefore must reverse the denial of Gonzalez's petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.

Reversed and remanded.