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.