Lifetime registration affirmed for sexual offender despite statute change

A man required to register as a sex offender for the rest of his life after committing sexual battery did not convince the Court of Appeals of Indiana that a later amendment overhauling Indiana’s registration requirement for the same crime should apply to his case.

In 2004, Robert Eugene Smith Jr. committed Class D felony sexual battery and Class A felony domestic battery against an adult victim. At the time of those offenses, Indiana Code § 11-8-8-19 imposed a lifetime registration obligation on offenders convicted of sexual battery when the offense included the use or threat of force.

However, a July 2007 amendment to that law required offenders convicted of sexual battery as a Class D felony to register for only 10 years as opposed to a lifetime obligation.

Down the road, Smith failed to comply with his registration obligations and was charged in Owen County with Class D felony failure to register as a sex or violent offender. He pleaded guilty in 2017 and received a one-year sentence.

The following year, Smith was charged again, this time in Marion County, with two counts of Level 5 felony failure to register as a sex or violent offender. Smith pleaded guilty, received an aggregate three-year sentence in June 2018 and was ordered to serve two years of the sentence on community corrections and one year on probation.

That same month, Smith contacted the Johnson County Sheriff’s Office to register his address. Sgt Bill Pfifer wrote a memorandum informing Smith that his registration obligation was only 10 years based on the amended statute.

The sergeant then “changed” Smith’s end-of-registration date to June 25, 2018 and changed his status to “registration expired.”

However, the Indiana Department of Correction reclassified Smith as a lifetime registrant in January 2019. Thus, when law enforcement learned in September 2020 that Smith no longer resided at his registered address, a warrant was issued for his arrest.

Smith was then charged with two counts of Level 5 felony failure to register as a sex or violent offender and two counts of Level 6 felony failure to register as a sex or violent offender. The Hendricks Superior Court set an omnibus date of Nov. 19, 2002.

Smith moved to dismiss the charging information on Aug. 11, 2021, arguing that it was unconstitutional for him to be required to register for life when the Legislature changed the law after his conviction, reducing the registration period for his crime.

The trial court denied Smith’s motion to dismiss and certified its ruling for interlocutory appeal.

In affirming the denial, the Court of Appeals first rejected the state’s argument that Smith’s motion was untimely.

“The State contends Smith’s motion was required to be made no later than twenty days before the omnibus date because it challenges the charging information as defective, and therefore, the motion filed on August 11, 2021, was untimely,” Judge Melissa May wrote. But, she added, “We agree (with Smith) that the question of whether Smith had a duty to register as a sex offender in September 2020 is a question of law, and therefore, his motion to dismiss was not untimely … .”

Even so, the court continued, Smith was still under a lifetime obligation to register as a sex offender at the time of the alleged offenses.

As for the registration requirement itself, the COA noted that the 2007 amendment did not retroactively apply to Smith and that retroactively applying the change would “lead to absurd and unreasonable results when we look at the amendment in context with other statutes dealing with the same subject matter passed by the legislature at the same time.”

The court also found Smith was not similarly situated to sex offenders who committed their crimes under a different statutory regime than he did.

“Moreover, Smith’s lifetime registration obligation follows from the Indiana Code, and a letter from the Johnson County Sheriff does not remove that obligation,” Judge Melissa May wrote. “Therefore, we affirm the trial court’s denial of Smith’s motion to dismiss the charges against him.”

The COA noted that if Smith were never notified of the DOC’s reclassification of his registration obligation, a subsequent criminal prosecution for failure to register would likely implicate his basic due process rights. However, it found the factual record before it was insufficient for it to issue an opinion on that question.

The case is Robert Eugene Smith, Jr. v. State of Indiana, 21A-CR-2493.

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