SULLIVAN, J.
In April, 1999, Michael Harris pled guilty in Kosciusko Superior Court to child molesting as a Class B felony. He was sentenced to a prison term of ten years and was required to register on the sex offender list for a period of ten years following his release from incarceration. Harris was released to parole in 2002, [footnote omitted] 2005, and 2007, but was subsequently reincarcerated each time for parole violations. He was last released on December 1, 2008, [footnote omitted] and has completed parole.
Either simultaneously with or prior 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 question “Is the offender a sexually violent predator under IC 35-38-1-7.5?” and a box that was checked “Yes.” Appellant’s App. 104-05. The forms also included the question “How long is the offender required to register under IC 11-8-8?” and a box that was checked “Life.” Id. Harris refused to sign the forms on both occasions. He acknowledged that he must register with local law enforcement as a sex offender for ten years but disagreed that he was an SVP and required to register for life.
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The Court of Appeals affirmed the trial court. It 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 operation 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 report for ten years and not for his lifetime, “as the change to the duration of Harris’s reporting obligation would have occurred only by a finding and conclusion that his status had changed.” Id. at 1118.
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The Indiana Sex Offender Registration Act (the “Act”) generally requires persons convicted of certain offenses to register with local law enforcement agencies and to disclose detailed personal information. . . . .
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 history 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 sex “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 register 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 placement on probation, I.C. § 5-2-12-13.
The 1997 Act was the version of the statute in effect at the time Harris committed his offenses and applied to his sentencing. [Footnote omitted.]
2. As amended in 1998 (―1998 Amendment‖):
a. A sexually violent predator (“SVP”) is defined as “an individual who suffers from a mental abnormality or personality disorder that makes the individual likely 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 an (“SVP”) after consulting with two board certified psychologists or psychiatrists. I.C. § 35-38-1-7.5(c).
c. An SVP is required to register for an indefinite period unless 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 amended in 2003 (“2003 Amendment”):
a. An SVP is required to register for life. Ind. Code § 5-2-12-13(b) (Supp. 2003).
4. As amended 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); this list included child molesting 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 re-peatedly engage in any of the offenses described 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). [Footnote omitted.]
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 deter-mine if the person is an SVP under subsection (a). I.C. § 35-38-1-7.5(d)-(e).
5. As amended 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 from incarceration, secure detention, or probation for the offense after June 30, 1994.” [Footnote omitted.] Ind. Code § 35-38-1-7.5(b) (Supp. 2007) (emphasis added).
b. The court is required at the sentencing hearing to “indicate on the record whether the person has been convicted of an offense that makes the person a sexually violent predator under subsection (b).” I.C. § 35-38-1-7.5(d) (emphasis added).
c. The court no longer “determines” SVP status at the sentencing hearing unless a person is not an SVP under subsection (b) and the prosecuting attorney requests a hearing to determine whether the person is an SVP under subsection (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 person is an SVP under subsection (a). Id.
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The State takes the position that the 2007 Amendment applies to Harris because he was convicted of one of the qualifying offenses and because 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 Amendment.
Harris contends that he is not subject to the 2007 Amendment. Specifically, he argues that the DOC is not authorized to change his status to SVP where the trial court at sentencing did not make that determination 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 conclusion.
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 operation of law to SVP. Harris, 926 N.E.2d at 1116-18. But we do not think that Jones supports such a conclusion. The defendant 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 because the statute required that the court “determine” 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 [footnote omitted] required that determination 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 Act to include the “automatic designation of SVP status to persons who commit certain designated offenses.” Id. at 1289 n.3.
Harris makes a similar argument to that which succeeded in Jones. His argument, however, fails because under the 2007 Amendment, the Legislature had changed the Act from requiring the court to determine SVP status at the sentencing hearing to the “automatic designation of SVP status.” At the time Harris was released from prison in December, 2007, the sentencing court was no longer required to have “determined” a person‘s SVP status. [Footnote omitted.] Instead, the statute in effect at that time provided that a person 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; Indiana Code section 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. [Footnote omitted.] Moreover, unlike the 2006 Amendment, the 2007 Amendment explicitly states that its provisions apply to persons who commit designated offenses and are “released from incarceration, secure detention, or probation for the offense 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 Harris. Specifically, because Harris was convicted of child molesting as a Class B felony (one of the qualifying offenses) and because he was released from incarceration after June 30, 1994, the statute provides that his status is SVP by operation of law. [Footnote omitted.] Of course, Harris’s classification as an SVP by operation of law is only valid if application of the Act does not violate applicable provisions of constitutional law.
Harris contends that his classification as an SVP under the 2007 Amendment with the effect of converting his ten-year registration requirement into a lifetime-registration requirement violates the Ex Post Facto Clause of the Indiana Constitution. [Footnote omitted.] The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art. I, § 24. . . . .
In evaluating ex post facto 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 Legislature meant the Act to establish civil proceedings. Id. If instead its intention was to impose punishment, then the in-quiry ends. Id. However, if the Legislature intended a nonpunitive regulatory scheme, then we must examine the Act‘s effects to determine whether they are in fact so punitive as to transform the regulatory scheme into a criminal penalty; if so, then retroactive application of the law violates the Ex Post Facto Clause. Id.
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As noted in both Wallace and Jensen, the Act undoubtedly advances a legitimate, regulatory purpose in that promotes public safety. To be sure, we have recognized that “registration systems are a legitimate way to protect the public from repeat offenders.” Wallace, 905 N.E.2d at 383. This factor clearly favors treating the effects of the Act as nonpunitive.
Finally and most importantly, as applied to Harris, the Act’s requirements are not excessive in relation to its legitimate, regulatory purpose. Like Jensen, many of the Act’s registration and disclosure requirements were in place and applied to Harris at the time he committed his offense and at the time he pled guilty to child molesting, well before the 2007 Amendment. [Footnote omitted.] Further, like the 2006 Amendment, the 2007 Amendment provides that in ten years from the date of his release from prison – the time frame in which Harris was originally required to register – he may petition the court “to consider whether [he] should no longer be considered [an SVP].” Ind. Code § 35-38-1-7.5(g) (Supp. 2007). And, under the 2007 Amendment, the court at that point may [footnote omitted] determine if Harris presents a future threat – i.e., “suffers from a mental abnormality or personality disorder that makes [him] likely to repeatedly commit a sex offense,” I.C. § 35-38-1-7.5(a) – after 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, if he is not an SVP under this standard, then he no longer has to register as one and his lifetime-registration requirement terminates. But if he is, then the Act requires him to continue to register; he can petition the court again to determine his SVP status in another year. Id.
It is clear to us that this provision of the 2007 Amendment advances the Act’s legitimate regulatory purpose of public safety – by its terms, only those people who present a future threat are required to register for their lifetimes. Because of this provision allowing for an individualized determination based on his likelihood to reoffend after his original ten-year registration requirement is up, the 2007 Amendment seems even less punitive as applied to Harris than as to Jensen under the 2006 Amendment. Cf. Jensen, 905 N.E.2d at 398 (Boehm, J., dissenting) (“Without some individualized determination of continued risk, the requirements of the 2006 amendments are excessive in relation to their stated purpose.”).
In sum, Harris’s claim fails for the same reasons Jensen’s claim failed. See also Vickery v. State, 932 N.E.2d 678, 680-83 (Ind. Ct. App. 2010) (rejecting an ex post facto claim under the reasoning of Jensen). The first three factors may lean toward treating the Act as punitive, but the other four – and particularly the last factor – lean in favor of treating the Act as nonpunitive when applied to Harris. [Footnote omitted.]
Harris, supported by a helpful amicus brief from the Indiana Office of the Public Defender, also raises another constitutional argument with respect to the 2007 Amendment, one that we have yet to consider in our previous cases dealing with the Act. Relying on the Supreme 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 powers. Specifically, Harris maintains that the automatic designation of offenders as SVPs “by operation of law” has the effect of permitting the DOC, an executive branch of state government, to reopen final judgments and thereby exercise a function reserved to the judiciary by the Indiana Constitution.
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In State v. Bodyke, the Ohio Supreme Court declared unconstitutional certain provisions of Ohio’s Adam Walsh Act that required the attorney general to reclassify sex offenders who had already been classified by court order under a former law. 933 N.E.2d at 767, ¶¶ 60-61. According to the court, these provisions violated separation of powers by (1) requiring the opening of final judgments and (2) impermissibly instructing the executive branch to review past decisions of the judicial branch. Id. Reclassification under Ohio‘s Act was based solely by reference to the offense and without the involvement of any court. Id. at 759-60, ¶¶ 21-22. Thus, the Act effectively stripped the trial court “of any power to engage in independent fact-finding to determine an offender’s likelihood of recidivism.” Id. at 760, ¶ 22.
But unlike the Ohio Supreme Court, we do not think that the “by operation of law” clause works to reopen a final judgment in the present case. As noted above, Harris’s ex post facto argument 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 committed his offense; instead, his sentencing court only required that he “be enrolled on the sex offender list.” Appellant’s App. 132. But he was an “offender” under the 1997 Act because he was convicted of an offense that qualified him as one; his sentencing court did not make that determination, the Indiana Code did. Ind. Code § 5-2-12-4 (Supp. 1997); cf. Bodyke, 933 N.E.2d at 773, ¶ 99 (Cupp, J., dissenting) (reasoning that reclassification did not change a prior judicial determination because that determination attached as a matter of law). [Footnote omitted.] This is not the case where his sentencing court considered expert testimony and expressly refused to classify Harris as an SVP. Cf. Progressive Improvement Ass’ of Downtown Terre Haute v. Catch All Corp., 254 Ind. 121, 125-26, 258 N.E.2d 403, 405 (1970) (trial court’s findings of fact after evidentiary hearing formed the basis of a final judgment that could not be altered afterwards by a board of public works). In other words, the “by operation of law” clause did not change a judicial determination that Harris was not an SVP to him being an SVP.
Nor do we think that the “by operation of law‖ clause removes the judiciary’s discretionary function in sentencing and place it with the DOC. The statute does not grant the DOC any authority to classify or reclassify. SVP status under Indiana Code section 35-38-1-7.5(b) is determined 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 period is determined by the Act itself).
Unlike the statute at issue in the Ohio case, Indiana’s Act preserves the judiciary’s role in determining the status of offenders and their likelihood to reoffend. We note that effective March 24, 2010, an offender 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 the county in which he or she resides under Indiana Code section 11-8-8-22 (2010). 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 v. State, 928 N.E.2d 837, 840 (Ind. Ct. App. 2010) (same). [Footnote omitted.] 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, to the extent SVP status is the default under the Act for persons who commit certain offenses, the Act contains provisions to ensure that the status is just that – a default. If anything, it leaves to the courts at various stages the power to determine the status of offenders and their likelihood of recidivism. . . . .
Shepard, C.J., and Rucker and David, JJ., concur.
Dickson, J., dissents with separate opinion:
I respectfully dissent. In accord with the dissent in Jensen v. State, 905 N.E.2d 384, 396–98 (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 when applied to this defendant, who was sentenced in 1999.