ex post facto clause in Indiana

2026In analyzing the offender’s ex post facto claim, the Jensen Court gave “considerable weight” to the excessiveness factor, focusing on the effects of the lifetime-registration requirement. 905 N.E.2d at 394 (quoting Wallace, 905 N.E.2d at 383 ).

2016See Wallace, 905 N.E.2d at 378 (observing that the United States Supreme Court applied the intent-effects test in discussing whether a statute violated the ex post facto clause of the United States Court of Appeals of Indiana | Memorandum Decision 55A01-1604-CR-953 | November 22, 2016 Page 12 of 13 and that the trial court abused its discretion in granting Trisler’s motion to dismiss.

2019“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if it ‘neither changes the elements of the crime nor enlarges its punishment.’” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 , 126 S. Ct. 42 , 163 L.

2016“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if ⅛, ‘neither changes the elements of the crime nor enlarges its punishment.’ ” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh’g denied, cert. denied 546 U.S. 828 , 126 S.Ct. 42 , 163 L.Ed.2d 76 (2005)), trans. denied. [20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind.Ct.App.2008), the State sought to amend its-information, charging Ramon with Class A felonies instead of Clas

2018"The critical question in evaluating an ex post facto claim 'is whether the law changes the legal consequences of acts completed before its effective *456 date.' " Sewell v. State , 973 N.E.2d 96 , 102 (Ind. Ct. App. 2012) (quoting Weaver v. Graham , 450 U.S. 24 , 31, 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981) ) (italics omitted). [10] Since it was amended in 2008, Indiana Code section 11-8-8-19 states that the sex offender registration requirement applies until the expiration of ten years after the date the offender is either released from a penal facility; placed in a community transition program;

2018"The critical question in evaluating an ex post facto claim 'is whether the law changes the legal consequences of acts completed before its effective *456 date.' " Sewell v. State , 973 N.E.2d 96 , 102 (Ind. Ct. App. 2012) (quoting Weaver v. Graham , 450 U.S. 24 , 31, 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981) ) (italics omitted). [10] Since it was amended in 2008, Indiana Code section 11-8-8-19 states that the sex offender registration requirement applies until the expiration of ten years after the date the offender is either released from a penal facility; placed in a community transition program;

2026Although our precedent makes clear that the Statute survives an ex post facto challenge because it ensures “meaningful review of an offender’s future dangerousness,” Gonzalez, 980 N.E.2d at 320 , the availability of such review would be illusory if, as the Statute suggests, a trial court could summarily dismiss for any reason.

2018See also Gonzalez v. State, 980 N.E.2d 312, 321 (Ind. 2013) (explaining that “Indiana Code Section 11-8-8-22 may be utilized only when there is an ameliorative change in federal or state law applicable to an offender’s prior conduct, Ind. Code § 11-8-8-22 (b), (g), or when an offender files an ex post facto claim, Ind. Code § 11-8-8-22 (j)”).

2020E.g., Gaby v. State, 949 N.E.2d 870, 882-83 (Ind. Ct. App. 2011); Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009), trans. denied.

2012See id. (providing that application of the credit restricted felon statute to criminal acts which occurred before the statute’s enactment is an ex post facto violation).

2019We Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019 Page 6 of 12 interpret this as a challenge on the ground that use of the amended chapter 34- 24-1 to seize the Car would amount to an impermissible ex post facto law.1 We have previously stated that the constitutional prohibitions against ex post facto criminal sanctions require that criminal proceedings be governed by the statutory provision in effect at the time of the offense.[2] Settle v. State, 709 N.E.2d 34, 35 (Ind. Ct. App. 1999). […] However, we have noted that the ex post facto clause “‘does not give a criminal a r

2016However, we have noted that the ex post facto clause ‘“does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.’ ” Hayden v. State, 771 N.E.2d 100, 102 (Ind.Ct.App.2002) (quoting Dobbert v. Florida, 432 U.S. 282, 293 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977)), trans. denied.

2017In other words, as of July 1, 2013, the effective date of the addition of subsection (n) to the child seduction statute, Benner was on notice that if he used his prior professional relationship with P.A. to engage in fondling or other sexual conduct with P.A., he could be prosecuted for child seduction so long as P.A. was under the age of 18. [15] It has been stated that “[t]he critical question in evaluating an ex post facto claim ‘is whether the law changes the legal consequences of acts completed before its effective date.’” See Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct. App. 2012) (citi

2015Seales v. State, 4 N.E.3d 821, 823 (Ind.Ct.App.2014) (citations and italics omitted), trans. denied. “ ‘The critical question in evaluating an ex post facto claim “is whether the law changes the legal consequences of acts completed before its effective date.”’” Sewell v. State, 973 N.E.2d 96, 102 (Ind.Ct.App.2012) (quoting United States v. Brady, 26 F.3d 282, 291 (2nd Cir.1994)) (quoting Weaver v. Graham, 450 U.S. 24, 31 , 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981)). [7] Unlike a facial constitutional challenge, an as-applied challenge asks only that the reviewing court declare the challenged statut

2016Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006) cert. denied 549 U.S. 996 , 127 S.Ct. 513 , 166 L.Ed.2d 370 (2006).

2009This ex post facto clause gives effect to "the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties." Id. (citing Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.2006)).

2019The aim of the ex post facto clause is to ensure that people are "give[n] fair warning of the conduct that will give rise to *579 criminal penalties." Harris , 949 N.E.2d at 809 .

2019The aim of the ex post facto clause is to ensure that people are "give[n] fair warning of the conduct that will give rise to criminal penalties." Harris , 949 N.E.2d at 809 .

2019“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if it ‘neither changes the elements of the crime nor enlarges its punishment.’” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 , 126 S. Ct. 42 , 163 L.

2016“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if ⅛, ‘neither changes the elements of the crime nor enlarges its punishment.’ ” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh’g denied, cert. denied 546 U.S. 828 , 126 S.Ct. 42 , 163 L.Ed.2d 76 (2005)), trans. denied. [20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind.Ct.App.2008), the State sought to amend its-information, charging Ramon with Class A felonies instead of Clas

2020E.g., Gaby v. State, 949 N.E.2d 870, 882-83 (Ind. Ct. App. 2011); Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009), trans. denied.

2019E.g., Gaby v. State, 949 N.E.2d 870, 882-83 (Ind. Ct. App. 2011) (noting that the State conceded as much); Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009) (also noting that the State conceded as much), trans. denied.

2017See Spencer v. O’Connor, 707 N.E.2d 1039, 1042 (Ind. Ct. App. 1999), trans. denied.

2009Ultimately concluding that the 1994 version of the Act did not violate the ex post facto provision of the Indiana Constitution, the Court declared, "Both parties acknowledge, and we agree, that the ex post facto analysis under Indiana law is the same as under the federal Constitution." Id.

2016The ex post facto clause prohibits the Legislature from enacting “any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ’’.Jepsen v. State, 905 N.E.2d 384, 389 (Ind.2009).

2015The ex post facto clause prohibits the Legislature from enacting “any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Jensen v. State, 905 N.E.2d 384, 389 (Ind. 2009).

2017See Pollard v. State, 908 N.E.2d 1145 (Ind. 2009) (holding that application of residency restriction statute, which prohibited those convicted of certain sex offenses from living within 1,000 feet of school property, youth program centers, or public parks, to defendant who had lived at his house for several years before the effective date of the residency restriction statute, was unconstitutional under the Ex Post Facto clause of the Indiana Constitution). [26] I further agree with Benner that this version of the child seduction statute is unconstitutionally vague as applied to him.

2009This ex post facto clause gives effect to "the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties." Id. (citing Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.2006)).

2016“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if ⅛, ‘neither changes the elements of the crime nor enlarges its punishment.’ ” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh’g denied, cert. denied 546 U.S. 828 , 126 S.Ct. 42 , 163 L.Ed.2d 76 (2005)), trans. denied. [20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind.Ct.App.2008), the State sought to amend its-information, charging Ramon with Class A felonies instead of Clas

2015“An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if it ‘neither changes the elements of the crime nor enlarges its punishment.’” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 (2005)), trans. denied. [20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind. Ct. App. 2008), the State sought to amend its information, charging Ramon with Class A felonies instead of Class B felonies.

2015As the Burton Court observed, “the date of the commission of the crime and the law in place at that time is relevant to the ex post facto analysis.” Id. at 1009 .

2015We agree with the State that “the date of the commission of the crime was dispositive in Wallace , but it is not here,” and that, as in Tyson , we “should consider the date that Zerbe moved to Indiana ... as the relevant date for the ex post facto analysis.” Id. at 12. [13] Zerbe also cites Burton v. State, 977 N.E.2d 1004 (Ind.Ct.App.2012), trans. denied (2013).

2018"The critical question in evaluating an ex post facto claim 'is whether the law changes the legal consequences of acts completed before its effective *456 date.' " Sewell v. State , 973 N.E.2d 96 , 102 (Ind. Ct. App. 2012) (quoting Weaver v. Graham , 450 U.S. 24 , 31, 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981) ) (italics omitted). [10] Since it was amended in 2008, Indiana Code section 11-8-8-19 states that the sex offender registration requirement applies until the expiration of ten years after the date the offender is either released from a penal facility; placed in a community transition program;

2017In other words, as of July 1, 2013, the effective date of the addition of subsection (n) to the child seduction statute, Benner was on notice that if he used his prior professional relationship with P.A. to engage in fondling or other sexual conduct with P.A., he could be prosecuted for child seduction so long as P.A. was under the age of 18. [15] It has been stated that “[t]he critical question in evaluating an ex post facto claim ‘is whether the law changes the legal consequences of acts completed before its effective date.’” See Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct. App. 2012) (citi

2008“A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.” Smith v. Doe, 538 U.S. 84, 93 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003).

2008“A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.” Smith v. Doe, 538 U.S. 84, 93 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003).

2019See Gardner v. State, 923 N.E.2d 959, 960 (Ind. Ct. App. 2009) (finding that an ex post facto challenge to application of the violent offender registry was not ripe for review while the petitioner was still incarcerated). [8] The judgment of the trial court is affirmed.

2013Cf. Harlan v. State, 971 N.E.2d 163 (Ind. Ct. App. 2012) (addressing an ex post facto challenge to the requirement to register under INSORA on direct appeal of the defendant’s child molesting convictions); Gardner v. State, 923 N.E.2d 959, 960 (Ind. Ct. App. 2009) (holding that the appellant’s claim was not ripe for adjudication because his release from prison was not imminent and the Department of Correction had not notified him that he is or will be required to register as a violent offender), trans. denied. 3 punishable at the time it was committed, or imposes additional punishment to the p

2019Hevner did hold that the retroactive application of an amended statute that required the defendant, a first-time possessor of child pornography, to register as a sex offender was an ex post facto violation. 919 N.E.2d at 113 .

2015State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000). [7] The Indiana Constitution provides “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art. 1, § 24. 2 “The ex post facto clause forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Hevner v. State, 919 N.E.2d 109, 111 (Ind. 1 Million filed a Motion to Correct Error, but he does not argue the trial court erred when it denied it.

2015Even though Wallace was convicted of a sex offense in Indiana, our court has extended the holding in Wallace to defendants who committed sex offenses in other states and then relocated to Indiana in cases such as Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012), and State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012), trans. denied. [11] In Burton, we held Burton, who was convicted of a sex offense in Illinois in 1987, was not required to register as a sex offender in Indiana after he moved here around 2009 because “it is the date of the commission of the crime and the law in place at the

2014See Hough v. State, 978 N.E.2d 505, 510 (Ind. Ct. App. 2012), trans. denied; Burton v. State, 977 N.E.2d 1004, 1009-10 (Ind. Ct. App. 2012), trans. denied. 4 When we evaluate an ex post facto claim under the Indiana Constitution, our courts apply the “intent-effects” test.

2019Id. [6] Our Supreme Court has held that "[a] law is ex post facto if it 'substantially disadvantage[s] [a] defendant because it increase[s] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] defendant of some defense or lesser punishment that was available at the time of the crime.' " Id . (quoting Stroud v. State, 809 N.E.2d 274 , 288 (Ind. 2004) ).

2019Id. [14] Our supreme court has held that "[a] law is ex post facto if it 'substantially disadvantage[s] [a] defendant because it increase[s] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] defendant of some defense or lesser punishment that was available at the time of the crime.' " Id. (quoting Stroud v. State, 809 N.E.2d 274 , 288 (Ind. 2004) ).

2017See Teer v. State, 738 N.E.2d 283, 287 (Ind. Ct. App. 2000) (defendant’s conviction of being a serious violent felon in possession of a firearm was not an ex post facto violation where, although defendant Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017 Page 9 of 18 committed the serious violent felony prior to the act’s effective date, defendant was charged with possessing a firearm after the statute’s effective date). [16] Benner also argues that the section of the child seduction statute under which he was charged is unconstitutionally vague as applied to

2008This court rejected that position, observing that “the statute essentially prohibits the possession of a firearm by a serious violent felon; it neither re-punishes [the defendant] for the [previous] crime he committed nor enhances the penalty for the [previous] crime.” Id.

2008See United States v. Gibson, 490 F.3d 604, 609 (7th Cir.2007) (“[I]t is well settled law that applying procedural statutes ..., which effectively enlarge! ] the limitations period, does not violate the ex post facto clause so long as the statute is passed before the given prosecution is barred.”), cert. denied, — U.S. -, 128 S.Ct. 1646 , 170 L.Ed.2d 353 (U.S., 2008); Minton v. State, 802 N.E.2d 929, 934-35 (Ind.Ct.App.2004), trans. denied.

2008See United States v. Gibson, 490 F.3d 604, 609 (7th Cir.2007) ("[I]t is well settled law that applying procedural statutes . . ., which effectively enlarge[] the limitations period, does not violate the ex post facto clause so long as the statute is passed before the given prosecution is barred."), cert. denied, ___ U.S. ___, 128 S.Ct. 1646 , 170 L.Ed.2d 353 (U.S., 2008); Minton v. State, 802 N.E.2d 929, 934-35 (Ind.Ct.App.2004), trans. denied.

2008Stogner v. California, 539 U.S. 607, 632-33 , 123 S.Ct. 2446 , 156 L.Ed.2d 544 (2003) (concluding that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution”); State v. Garcia, 285 Kan. 1 , 169 P.3d 1069, 1075 (2007) (holding that the application of a statute of limitations violated the ex post facto clause as applied to the defendant, as it “resurrects a previously time-barred prosecution”).

2008Stogner v. California, 539 U.S. 607, 632-33 , 123 S.Ct. 2446 , 156 L.Ed.2d 544 (2003) (concluding that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution”); State v. Garcia, 285 Kan. 1 , 169 P.3d 1069, 1075 (2007) (holding that the application of a statute of limitations violated the ex post facto clause as applied to the defendant, as it “resurrects a previously time-barred prosecution”).

2019The defendant moved to dismiss the charge, "arguing that enforcing the registry requirement constituted an ex post facto violation since his offense occurred before the change to [Indiana's] definition of sex offender took effect." Tyson , 51 N.E.3d at 90 .

2018Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016).