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A Grant Superior judge erred in sentencing a man to register as a sex offender because that requirement wasn't in place
at the time he committed his crime, rule the Indiana Supreme Court.
Justices ruled Jan. 6 in the case of Gary M. Hevner v. State of Indiana, No. 27S02-1001-CR-5, which follows last
year's decision in Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009) involving ex post facto claims relating to the state's
sex offender registry.
In this case, Gary Hevner challenged the part of his sentence requiring him to register as a sex offender for committing
possession of child pornography as a Class D felony in 2005. This was Hevner's first offense and at the time he committed
the offense, a person convicted for the first time of possessing child pornography wasn't considered a sex offender and
wasn't required to register as one. But Hevner's trial began in 2008, after the Indiana Sex Offender Registration
Act was amended to require anyone convicted of possession of child pornography to register regardless of the number of convictions.
He appealed his sentence, claiming the registration requirement violated the ex post facto prohibitions of the federal and
state constitutions. The Indiana Court of Appeals affirmed, but the U.S. Supreme Court had recently ruled that Alaska's
Sex Offender Registration Act didn't violate the ex post facto clause of the U.S. Constitution. Indiana and Alaska have
similar acts.
Using an "intent-effects" test, the justices ruled the registration requirement was punitive in effect. The court
should have sentenced Hevner under the statute in effect on the date he committed the offense, Justice Robert Rucker wrote.
"As applied to Hevner the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because
it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when the crime was
committed," he wrote.
Hevner also challenged the condition of his probation that he can't live within 1,000 feet of a school. The high court
noted the record isn't entirely clear that the trial court imposed that restriction; however, the justices concluded that
condition isn't an unreasonable condition. The case was remanded for further proceedings.
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