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Court split over whether man must remain on sex offender registry

June 17, 2015

An Indiana man who committed Class A felony child molesting in 1988 will remain on the Indiana Sex Offender Registry, a divided Court of Appeals held Wednesday.

Kevin Ammons appealed in Kevin A. Ammons v. State of Indiana, 45A03-1411-CR-394, the denial of his petition to remove his designation as a sexually violent predator and the requirement he register as a sex offender for life.

Ammons committed the crime in 1988 and was released to parole in 2006. He registered as a sex offender in Indiana and later moved to Iowa, where he did not register. After pleading guilty to failing to register there, he returned to Indiana in 2013 after serving his sentence in Iowa. When the Lake County Sheriff’s Department told Ammons he was required to register as a SVP, he filed a petition for removal from the registry, claiming the Indiana Sex Offender Registry Act – enacted in 1994 – as applied to him violates the ex post facto clause of the Indiana Constitution.

The trial court denied his petition and directed him to register as a SVP.

The Court of Appeals looked at the history of the Act, the Indiana Supreme Court’s decisions in Wallace v. State, 905 N.E.2d 371, 375 (Ind. 2009) and Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009), as well as the seven-factor Mendoza-Martinez test to determine whether the law is an unconstitutional ex post facto law.

“Like Jensen, and unlike Wallace, Ammons can avail himself of Indiana Code section 35-38-1-7.5(g), by predicating his request for relief on the grounds that he has been rehabilitated and presents no risk to the public. Moreover, our supreme court found in both Jensen and (Lemmon v. Harris, 949 N.E.2d 803, 812-13 (Ind. 2011)), that the seventh factor was non-punitive, and in light of that fact, the defendants in those cases had not carried their burden of demonstrating that as applied to them, the Act violates the Ex Post Facto Clause. While several of the factors lean toward treating the Act as punitive as applied to Ammons, our determination must be governed by the majority opinions in Lemmon and Jensen. Wallace does not compel reversal of the trial court’s denial of Ammons’ petition to remove his designation as a SVP,” Judge Patricia Riley wrote.

Judge Michael Barnes dissented, writing that the trial court should have granted Ammons’ petition to be removed from the registry. He points out that Ammons’ 1998 conviction, six years before the enactment of the sex offender registry in Indiana, puts him in the same position as Wallace, so the requirement for him register as a sex offender here violates the state constitution.
 

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