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Justices overturn man's registration requirement

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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, the Indiana Supreme Court ruled.

In the opinion released Wednesday, Gary M. Hevner v. State of Indiana, No. 27S02-1001-CR-5, Gary Hevner challenged the part of his sentence that required 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 under the statute. 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 justices decided the requirement violated only the Indiana Constitution because the United States Supreme Court had recently upheld 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, wrote Justice Robert Rucker.

"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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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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