Altice, J.
Tracey William Crowley, who was previously convicted in Michigan of a felony sexual offense and registered in Indiana as a sex offender when he moved to Indiana in 2004, appeals the trial court’s denial of his petition for removal from Indiana’s Sex and Violent Offender Registry. Crowley asserts that Indiana’s registration laws as applied to him violate Indiana’s ex post facto clause because a registry did not exist at the time of his conviction, either in Indiana or Michigan, and because the requirement that new residents to Indiana who have an out-of-state registration requirement must register with law enforcement upon arrival did not exist when he moved to Indiana.
We affirm.
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Crowley contends that “[b]cause he was not required to register in either Indiana or Michigan at the time of his conviction in 1988 and because the 2006 amendments to Indiana’s sex offender registration laws that required newly-arrived out-of-state residents to register upon arrival in Indiana were not in place when he moved to Indiana in 2004[,]” he had “no warning that . . .he would be required to register,” and his lifetime registration requirement constitutes a “quintessential ex post facto punishment.”
As a threshold matter, we clarify that Crowley’s claim is that the Act, and specifically the “other jurisdiction” registration requirements – enacted by the 2006-07 amendments – are unconstitutional as applied to him. He makes no claim, either below or on appeal, that he was not required to register in Michigan before moving here; indeed, he concedes that he was: “The lifetime registration requirement [in Indiana] was not triggered on its own, but by the commission of an offense [committed in Michigan] requiring registration.” Id. at 10 (citing MCL § 750.520d).
Turning to the merits, the State argues that our Supreme Court in Zerbe and Tyson has already held that requiring an individual to register in Indiana due to a registration requirement in another jurisdiction, regardless of whether that individual committed the offense prior to SORA’s enactment, does not violate the ex post facto clause because it was a continuation across state lines of an existing requirement.
Crowley urges that Zerbe and Tyson are factually distinguishable, and not applicable, because those offenders moved to Indiana after the 2006 amendments, whereas Crowley moved to Indiana two years before the 2006 amendments. He argues, instead, that we should find, pursuant to zerb and Gonzalez, that the Act as applied constitutes ex post facto punishment. As Crowley suggests, it appears our state courts have not addressed the precise scenario before us. However, the Seventh Circuit recently has. See Hope v. Comm’r of Ind. Dep’t of Correction, 9 F.4th 513, 519 (7th Cir. 2021) (Hope II).
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The Hope II Court acknowledged that [under Wallace], [i]f an offender was under no registration requirement prior to SORA’s passage, imposing a registration requirement in the first instance is impermissibly punitive. [H]owever, [under Tyson,] if another state previously subjected a pre-SORA offender to a registration requirement, requiring him to register in Indiana is not punitive. . . . Indiana caselaw thus has the peculiar effect of permitting the State to treat similarly situated offenders differently based solely on whether an offender had an out-of-state registration obligation. Id. However, the Hope II Court ultimately held that there was no ex post facto violation to retroactively apply the other jurisdiction provisions to the plaintiff-offenders in the case before it. After observing that “Wallace did not foreclose all retroactive applications of SORA,” the Court reviewed, among others, the Indiana Supreme Court’s decisions in Zerbe and Tyson, and Ammons v. State, 50 N.E.3d 143, 145 (Ind. 2016), where the Court held that because Ammons, who was convicted of child molesting in 1988, “was already under an obligation to register in Iowa when he moved to Indiana in 2013, [] Indiana Code sections 11-8-8-5(b)(1) and -19(f) do not impose any additional punishment on him, [and] we find no ex post facto violation.” 9 F.4th at 521. The Hope II Court summarized that [m]aintaining, extending, or modifying a duty under SORA generally is not punitive, but imposing a new duty is. It is immaterial to the analysis whether Indiana law is maintaining, extending, or modifying its own duties or those of another state. Likewise, it is irrelevant where or when the conviction occurred, as long as another state imposed a lawful registration obligation on the offender and SORA does not so significantly alter that obligation to result in added punishment. Id. at 523. The Court noted that two of the plaintiff-offenders, including Snider, moved to Indiana before the 2006-07 enactment of the other jurisdiction provision, but found that “this wrinkle” did not affect the outcome. Id. at 522 n.2. In reaching its decision, the court applied the intent-effects test and concluded that “[t]he plaintiffs have not carried their heavy burden of proving that SORA is so punitive in effect as to override the Indiana legislature’s intent to enact a civil law.” Id. at 534.
With this backdrop, we examine Crowley’s ex post facto claim under the “intent-effects” test. As to the initial inquiry of the test – whether the legislature intended to establish civil proceedings or to impose punishment – our courts have held that our legislature’s intent was to create a civil, non-punitive regulatory scheme. State v. Pollard, 908 N.E.2d 1145, 1150 (Ind. 2009). Given this absence of punitive intent, we thus proceed to the second prong and examine the effects of the statute by considering the seven factors in order to ascertain whether it is so punitive as to transform it into a criminal penalty. Again, we consider:
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.
Wallace, 905 N.E.2d at 379.
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Weighing the seven factors as they apply to Crowley and his circumstances, we find that, on balance, application of the 2006-07 other jurisdiction registration requirement to Crowley does not constitute ex post facto punishment. We are not unsympathetic to the fact that Crowley’s offense was committed over thirty years ago and by all accounts he has lived a productive and crime-free life in our state. However, that is not our inquiry. We are tasked with determining whether the Act as applied to him violates the Indiana Constitution’s ex post facto clause. Based on the intent-effects tests, as well as considering the recent guidance of our federal counterparts in Hope II – who discussed and applied our Supreme Court’s directive in Tyson and Zerbe to at least one offender who, like Crowley moved to Indiana before the 2006-07 amendments – we conclude it does not.
Judgment affirmed.
Bailey, J. and Mathias, J., concur.