Crone, J.
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Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him “fair warning that his conduct would result in a penalty requiring him to register as a sex offender.” Appellant’s App. at 5. The State opposed Zerbe’s petition, which the trial court granted.
On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse.
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Here, … SORA imposed no additional burdens on Zerbe because he was already required to register in Michigan. The State points out that “Zerbe’s position is that he should be able to decrease his punishment by moving to Indiana.” [Citation omitted.] We presume that our legislature sought to avoid this absurd result (as well as an influx of convicted sex offenders) by amending SORA to require out-of-state sex offenders to continue fulfilling their obligation to register upon moving to Indiana. The State observes that when Burton moved to Indiana, he “had the expectation that, as someone who had an existing registration requirement in another state, he was required to register in Indiana.” [Citations omitted.] We agree with the State that “the date of the commission of the crime was dispositive in Wallace [v. State, 905 N.E.2d 371 (Ind. 2009)], but it is not here,” and that, as in Tyson [v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g denied], we “should consider the date that Zerbe moved to Indiana … as the relevant date for the ex post facto analysis.” [Citation omitted.]
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Reversed.
Brown, J., concurs.
Baker, J., dissents with opinion.
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Baker, Judge.
I respectfully dissent. In [Wallace], our Supreme Court held that mandatory sex offender registration is punitive, and that application of SORA to an offender who had committed his offense prior to the enactment of SORA violated the ex post facto prohibition of the Indiana Constitution.
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The State argues that we should focus on the date of the year in which Zerbe moved to Indiana—2012—over a decade after the 2001 amendment. According to the State, because Zerbe knew when he moved to Indiana that he would be required to register as a sex offender under SORA, there is no violation of the ex post facto clause.
While I see the logic in the State’s position on this issue, as well as the majority’s decision, the case law could not be clearer. Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. Notwithstanding the state of the law at the time Zerbe moved to Indiana, he is a resident of this State and “is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Michigan’s] laws, Indiana’s law controls.” [State v. ]Hough, 978 N.E.2d [505,] 510 [(Ind. Ct. App. 2012), trans. denied]. Zerbe was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws and would affirm the trial court’s judgment.
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Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him “fair warning that his conduct would result in a penalty requiring him to register as a sex offender.” Appellant’s App. at 5. The State opposed Zerbe’s petition, which the trial court granted.
On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse.
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Here, … SORA imposed no additional burdens on Zerbe because he was already required to register in Michigan. The State points out that “Zerbe’s position is that he should be able to decrease his punishment by moving to Indiana.” [Citation omitted.] We presume that our legislature sought to avoid this absurd result (as well as an influx of convicted sex offenders) by amending SORA to require out-of-state sex offenders to continue fulfilling their obligation to register upon moving to Indiana. The State observes that when Burton moved to Indiana, he “had the expectation that, as someone who had an existing registration requirement in another state, he was required to register in Indiana.” [Citations omitted.] We agree with the State that “the date of the commission of the crime was dispositive in Wallace [v. State, 905 N.E.2d 371 (Ind. 2009)], but it is not here,” and that, as in Tyson [v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g denied], we “should consider the date that Zerbe moved to Indiana … as the relevant date for the ex post facto analysis.” [Citation omitted.]
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Reversed.
Brown, J., concurs.
Baker, J., dissents with opinion.
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Baker, Judge.
I respectfully dissent. In [Wallace], our Supreme Court held that mandatory sex offender registration is punitive, and that application of SORA to an offender who had committed his offense prior to the enactment of SORA violated the ex post facto prohibition of the Indiana Constitution.
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The State argues that we should focus on the date of the year in which Zerbe moved to Indiana—2012—over a decade after the 2001 amendment. According to the State, because Zerbe knew when he moved to Indiana that he would be required to register as a sex offender under SORA, there is no violation of the ex post facto clause.
While I see the logic in the State’s position on this issue, as well as the majority’s decision, the case law could not be clearer. Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. Notwithstanding the state of the law at the time Zerbe moved to Indiana, he is a resident of this State and “is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Michigan’s] laws, Indiana’s law controls.” [State v. ]Hough, 978 N.E.2d [505,] 510 [(Ind. Ct. App. 2012), trans. denied]. Zerbe was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws and would affirm the trial court’s judgment.