Riley, J.
STATEMENT OF THE CASE
Appellant-Defendant, Kevin A. Ammons (Ammons), appeals the denial of his petition to remove his designation as a sexually violent predator (SVP) and the accompanying requirement that he register as a sex offender for life.
We affirm.
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FACTS AND PROCEDURAL HISTORY
[Defendant was charged with A-felony child molesting in 1988, convicted in 1989, released to parole in 2006, and completed parole in 2007. He registered as a sex offender in Indiana until he moved to Iowa in 2009.] … As an Iowa resident, Ammons was required to register as sex offender for ten years from the date he completed his parole. In 2011, the State of Iowa charged Ammons for failing to register as a sex offender. Ammons pled guilty and he served eleven months of supervised probation. Ammons continued to reside in Iowa until September 2013 when he relocated to Indiana.
On February 19, 2014, the Lake County Sheriff’s Department notified Ammons in writing that he was required to register as a SVP. On February 27, 2014, Ammons filed a pro se verified petition for removal from the Registry pursuant to Indiana Code Section 11-8-8-22, claiming that the Indiana Sex Offender Registration Act (the Act) as applied to him violated the ex post facto clause of the Indiana Constitution because he had committed the sex offense before the Act became effective. [Footnote omitted.] … On October 15, 2014, the trial court denied Ammons’ petition to be removed from the Registry and subsequently directed Ammons to register as a SVP.
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When we evaluate an ex post facto claim under the Indiana Constitution, our courts apply the “intent-effects” test. Wallace [v. State], 905 N.E.2d [371,] 378 [(Ind. 2009)]. …
In evaluating a statute’s effects, our supreme court has adopted a seven-factor test—the Mendoza-Martinez test—for determining whether a law is an unconstitutional ex post facto law: “(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether it promotes the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether it has a rational alternative purpose; and (7) whether it is excessive in relation to the alternative purpose assigned.” Wallace, 905 N.E.2d at 379[] (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). …
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Turning to the Mendoza- Martinez factors, we are mindful that our task in applying the factors is not simply to count the factors on each side, but to weigh them. Gonzalez, 980 N.E.2d at 317. Furthermore, as this court found in Flanders v. State, 955 N.E.2d 732, 751 (Ind. Ct. App. 2011), trans. denied, we “accorded special weight” to the seventh factor of whether a sanction appears excessive in relation to the alternative purpose assigned to it.
Ammons maintains that his “name could be substituted for [] Wallace’s name in the supreme court analysis.” In Wallace, the Indiana supreme court held that the application of the Act to persons whose crimes were committed before the Act’s 1994 enactment was unconstitutional as an ex post facto law. See id. at 374-75. …
As discussed above, we concluded that factor one, two, four, and five of the Mendoza-Martinez factors were punitive as applied to Ammons. The remaining factors leaned towards treating the Act as non-punitive. As this court found in Flanders[,] we accord great weight to the seventh factor of whether a sanction appears excessive in relation to the alternative purpose assigned to it. Although Ammons argues that his case is more comparable to Wallace, our review of the seventh factor, yields a different result. In Wallace, it was significant that the Act provided no mechanism by which a SVP can petition the court for relief from the obligation of continued registration and disclosure; nor shorten their registration or notification period, even on the clearest proof of rehabilitation. Wallace, 905 N.E.2d at 384.
As we noted above, effective July 1, 2006, the legislature amended the Act requiring lifetime registration for a defendant whose offense qualifies the defendant as a SVP. Ind. Code § 11-8-8-19 (2006). Child molesting is a registration-triggering offense and our courts have consistently held that the Act advances a legitimate regulatory purpose to protect the public from repeat sex offenders, and most important—in light of the seventh factor—Ammons may petition the trial court in the future for review of his dangerousness and rehabilitation status at that time. See I.C. § 35-38-1-7.5(g); Lemmon [v. Harris], 949 N.E.2d [803,] 812-13 [(Ind. 2011)].
Like Jensen, and unlike Wallace, Ammons can avail himself of Indiana Code section 35-38-1-7.5(g), by predicating his request for relief on the grounds that he has been rehabilitated and presents no risk to the public. Moreover, our supreme court found in both Jensen and Lemmon that the seventh factor was non-punitive, and in light of that fact, the defendants in those cases had not carried their burden of demonstrating that as applied to them, the Act violates the Ex Post Facto Clause. While several of the factors lean toward treating the Act as punitive as applied to Ammons, our determination must be governed by the majority opinions in Lemmon and Jensen. Wallace does not compel reversal of the trial court’s denial of Ammons’ petition to remove his designation as a SVP.
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Bailey, J. concurs
Barnes, J. dissents with separate opinion
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Barnes, Judge, dissenting.
I respectfully dissent. I do not believe that requiring Ammons to register as a sex offender is consistent with the Indiana Constitution’s Ex Post Facto Clause as interpreted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). …
… Putting aside the question of the effect of the Iowa conviction for the moment, Ammons’s 1988 conviction, six years before enactment of Indiana’s sex offender registry, places him on all fours with Wallace’s holding. No further analysis in that regard is required, I believe. …
Additionally, I disagree with the majority that this case is like Jensen v. State, 905 N.E.2d 384 (Ind. 2009). In that case, the court held that there was no Ex Post Facto violation with respect to a defendant who committed a crime requiring registration after the registration’s enactment, but the legislature subsequently amended the registration requirements to make them more onerous. Jensen, 905 N.E.2d at 394. Here, however, Ammons committed his crime before there was any registration requirement, which puts him squarely within Wallace and not Jensen.
The wrinkle in this case, of course, is that Ammons was convicted of failing to register as a sex offender in Iowa after the Indiana registry was created and before he moved back to Indiana—which conviction ordinarily would require registration in Indiana. But that Iowa conviction “piggybacked” upon Ammons’s pre-registry offense in Indiana. The majority seems to agree with Ammons—as do I—that for purposes of an Ex Post Facto analysis, the relevant date here is 1988—the year of Ammons’s original Indiana conviction—and not 2013, when he moved back to Indiana. The majority also cites Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), trans. denied. In that case, the defendant committed a sex crime in Illinois in 1987, before there was a sex offender registry in either Illinois or Indiana. Later, the defendant was twice convicted in Illinois of failing to register as a sex offender; unlike in Indiana, Illinois law does not bar retroactive sex offender registry requirements. The defendant then moved to Indiana and was charged with failing to register as a sex offender, based upon his Illinois convictions for failing to register.
On appeal, this court held that the defendant while living in Indiana was entitled to the protections of the Indiana Constitution and, thus, under Wallace he could not be required to register as a sex offender in Indiana, even if he could be forced to do so in Illinois. Burton, 977 N.E.2d at 1009. … I … believe [Burton] is virtually indistinguishable from the present case. That is, despite the 2011 Iowa conviction for failing to register as a sex offender, that conviction stems from Ammons’s pre-registry Indiana conviction for child molesting. And, so long as Ammons lives in Indiana, he is entitled to the protections of Indiana’s Constitution as interpreted by Wallace.
Applying Burton and Wallace, I believe requiring Ammons to register as a sex offender in Indiana violates the Indiana Constitution. I vote to reverse the denial of Ammons’s petition to be removed from the Indiana sex offender registry.