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A man convicted of a sex crime against a minor 15 years ago in Kentucky must remain on Indiana’s sex offender registry, the Court of Appeals of Indiana affirmed Tuesday.
In 2008, Kevin Holladay was convicted in Kentucky of sexual abuse in the second degree. Holladay received a one-year executed sentence with five months suspended to probation.
Under Kentucky law, a defendant convicted of that crime is required to register. Although the Kentucky court ordered Holladay to register as a sex offender for 20 years, he never did.
Holladay moved to Indiana at some point after his conviction and placed his name on Indiana’s sex offender registry.
In April 2022, Holladay petitioned the Madison Circuit Court to remove him from the Indiana registry, but the trial court denied his request.
Holladay appealed, arguing that his registration as a sex offender in Indiana violates Indiana Code § 11-8-8-5 because the statute does not specifically define his Kentucky offense as a crime requiring registration.
Holladay also argued his registration constitutes an ex post facto punishment in violation of Article 1, Section 24 of the Indiana Constitution, and violates the privileges and immunities clause of Article 1, Section 23.
But the appellate court affirmed, with Judge Leanna Weissmann writing the unanimous opinion.
The COA rejected Holladay’s argument that his Kentucky crime is unlike any of the specific offenses listed under I.C. 11-8-8-5 and, therefore, did not require him to be on Indiana’s sex offender registry.
“Our reading of the statute, however, convinces us that the out-of-state registration requirement independently requires his registration, regardless of any similarities, or lack thereof, with the crimes specifically listed there,” Weissmann wrote.
Weissmann pointed to Tyson v. State, 51 N.E.3d 88 (Ind. 2016), which notes that I.C. 11-8-8-5 defines “sex or violent offender” in two parts, including a latter part that defines the term to include “a person who is required to register as a sex or violent offender in any jurisdiction.”
That makes Holladay a “sex or violent offender” under Indiana law, according to Weissmann.
Turning to Holladay’s ex post factor argument, the COA also pointed to Tyson’s companion opinion, State v. Zerbe, 50 N.E.3d 368 (Ind. 2016).
In those cases, the Supreme Court held that there is no ex post facto violation when offenders committed their offense before the enactment of Indiana’s Sex Offender Registration Act, were required to register in their original states and had moved to Indiana after the out-of-state registration requirement went into effect — the same circumstances present here.
“In effect, the Court found that ‘maintaining a registry requirement across state lines does not amount to a punitive burden,’” Weissmann wrote, quoting Tyson. “By extension, Holladay is not punitively burdened here.”
The appellate court also rejected Holladay’s argument that his registration is punitive because he never registered in Kentucky.
Finally, the appellate court dismissed Holladay’s claim that his registration infringes upon his constitutional “right to travel,” ruling that he waived that issue for failing to raise it before the trial court. Weissmann wrote that Holladay neither mentioned Article 1, Section 23 nor offered legal analysis on the issue to the trial court.
Judges L. Mark Bailey and Elaine Brown concurred.
The case is Kevin Allen Holladay v. State of Indiana, 22A-MI-2633.
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