State v. Pollard

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Gregory F. Zoeller Chris M. Teagle

Attorney General of Indiana Muncie, Indiana

Cynthia L. Ploughe

Deputy Attorney General

FILED

Indianapolis, Indiana

______________________________________________________________________________

Jun 30 2009, 2:18 pm

In the CLERK

of the supreme court,

court of appeals and

tax court

Indiana Supreme Court

_________________________________

No. 05S02-0906-CR-305

STATE OF INDIANA,

Appellant (Plaintiff below),

v.

ANTHONY W. POLLARD

Appellee (Defendant below).

_________________________________

Appeal from the Blackford Superior Court, No. 05D01-0701-FD-047

The Honorable John W. Forcum, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 05A02-0707-CR-640

_________________________________

June 30, 2009

Rucker, Justice.

The question presented is whether a section of the Indiana Sex Offender Registration Act

that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden

by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

Facts and Procedural History

On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which

he was apparently sentenced.1 On July 1, 2006, the residency restriction statute – Ind. Code §

35-42-4-11 – came into effect. That statute provides that a person convicted of certain sex-

related crimes is classified as an “offender against children” and commits “sex offender

residency offense,” a Class D felony, if the person knowingly or intentionally resides within

1,000 feet of school property, a youth program center, or a public park.2 On January 23, 2007,

the State charged Pollard with violation of the residency restriction statute, and Pollard

1

This case is presented to us on an abbreviated record. The facts upon which the trial court entered

judgment were stipulated by the parties. The stipulated facts say nothing about the nature of the offense

or the sentence imposed.

2

At the time Pollard was charged with the instant offense Ind. Code § 35-42-4-11 (2006) read in relevant

part:

As used in this section, “offender against children” means a person

required to register as a sex offender under IC 11-8-8 who has been:

(1) found to be a sexually violent predator under IC 35-38-1-7.5; or

(2) convicted of one (1) or more of the following offenses:

(A) Child molesting (IC 35-42-4-3).

(B) Child exploitation (IC 35-42-4-4(b)).

(C) Child solicitation (IC 35-42-4-6).

(D) Child seduction (IC 35-42-4-7).

(E) Kidnapping (IC 35-42-3-2), if the victim is less than

eighteen (18) years of age.

(F) An offense in another jurisdiction that is substantially

similar to an offense described in clauses (A) through (E) . . . .

An offender against children who knowingly or intentionally:

(1) resides within one thousand (1,000) feet of:

(A) school property;

(B) a youth program center; or

(C) a public park; or

(2) establishes a residence within one (1) mile of the residence of the

victim of the offender‟s sex offense; commits a sex offender

residency offense, a Class D felony.

2

responded with a motion to dismiss contending the statute violated the ex post facto prohibition

contained in Article I, section 24 of the Indiana Constitution. The parties presented the matter to

the trial court based on stipulated facts as follows:

1. That the defendant, Anthony W. Pollard, has an ownership

interest in the real estate located at 817 North Monroe Street,

Hartford City, Indiana. Further, Anthony W. Pollard has had his

ownership interest in the real estate for approximately the past 20

years.

2. That the defendant, Anthony W. Pollard had an ownership

interest in the real estate located at 817 North Monroe Street,

Hartford City, Indiana on January 12, 2007, the date the State of

Indiana has alleged that the defendant committed a criminal

offense under I.C. 35-42-4-11 under the above captioned cause.

3. That the residence owned and occupied by Anthony W.

Pollard located at 817 North Monroe Street, Hartford City, Indiana

is within one thousand (1,000) feet of school property, a youth

program center or a public park.

4. That the defendant, Anthony W. Pollard was residing at the

residence located at 817 North Monroe Street, Hartford City,

Indiana on January 12, 2007, the date the State of Indiana has

alleged that the defendant committed a criminal offense under I.C.

35-42-4-11 under the above captioned cause. The defendant

resided at the residence located at 817 North Monroe Street,

Hartford City, Indiana more than two (2) nights in a thirty (30) day

period prior to January 12, 2007.

5. That the defendant, Anthony W. Pollard has a prior

conviction for an offense listed under I.C. 35-42-4-11 (a)(2).

6. That the defendant, Anthony W. Pollard‟s conviction under

I.C. 35-42-4-11(a)(2) occurred prior to the effective date of Indiana

Code 35-42-4-11 which was on July 1, 2006.

7. That the defendant, Anthony W. Pollard has been a resident

and owner of the residence located at 817 North Monroe Street,

Hartford City, Indiana for at least one year prior to the effective

date of I.C. 35-42-4-11.

Appellant‟s App. at 9-10. After entertaining arguments of counsel, submitted by way of written

memoranda, the trial court granted Pollard‟s motion to dismiss concluding that as applied to

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Pollard the residency restriction statute violates the ex post facto prohibition of Article I, section

24 of the Indiana Constitution. Appellant‟s App. at 19. On review, focusing primarily on the

punitive impact of the statute on Pollard‟s property interest, the Court of Appeals agreed and

affirmed the trial court‟s order of dismissal. State v. Pollard, 886 N.E.2d 69 (Ind. Ct. App.

2008). Although we agree the trial court‟s order of dismissal should be affirmed our analysis is

different from that of our colleagues. We therefore grant transfer and affirm the judgment of the

trial court.3

Discussion

Article I, section 24 of the Indiana Constitution provides that “[n]o ex post facto law . . .

shall ever be passed.” Among other things, “[t]he ex post facto prohibition forbids . . . the States

to enact any law „which imposes a punishment for an act which was not punishable at the time it

was committed; or imposes additional punishment to that then prescribed.‟” Weaver v. Graham,

450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1866)).

The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle

that persons have a right to fair warning of that conduct which will give rise to criminal

penalties. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006). Pollard contends the

residency restriction statute imposes retroactive punishment because he committed a qualifying

offense prior to July 1, 2006.

We recently determined that in evaluating ex post facto claims under the Indiana

Constitution we apply what is commonly referred to as the “intent-effects” test. Wallace v.

State, 905 N.E.2d 371, 378 (Ind. 2009). Under this test the court must first determine whether

the legislature meant the statute to establish civil proceedings. Id. If the intention of the

legislature was to impose punishment, then that ends the inquiry, because punishment results. If

however the court concludes the legislature intended a non-punitive, regulatory scheme, then the

court must further examine whether the statutory scheme is so punitive in effect as to negate that

3

Anthony Pollard died while this case was pending on transfer. Because the issue raised in this appeal is

of great public importance with a likelihood of repetition, we choose to adjudicate the claim on its merits.

See Horseman v. Keller, 841 N.E.2d 164, 170 (Ind. 2006).

4

intention thereby transforming what was intended as a civil, regulatory scheme into a criminal

penalty. Id.

A. Whether the Legislature Intended to Impose Punishment

Whether the legislature intended the residency restriction statute to be civil or criminal is

primarily a matter of statutory construction. And as we observed in Wallace for the overall Sex

Offender Registration Act, “it is difficult to determine legislative intent since there is no

available legislative history and the Act does not contain a purpose statement.” Id. at 383

(quoting Spencer v. O‟Connor, 707 N.E.2d 1039, 1043 (Ind. Ct. App. 1999)). As with the

overall Act, the residency restriction statute does not contain a purpose statement. However,

unlike the overall Act where some components are contained in the civil code and others in the

criminal code, see Jensen v. State, 905 N.E.2d 384, 390 (Ind. 2009), the residency statute is

located solely within the criminal code, see, e.g., Kansas v. Hendricks, 521 U.S. 346, 361 (1997)

(noting the fact that the Kansas Sexually Violent Predator Act was placed in the probate code

rather than the criminal code evinced a legislative intent to create a civil proceeding). Further,

the statute contains no exception or “Grandfather Clause” exempting sex offenders who were

convicted before its enactment or who owned their homes before the statute‟s effective date; nor

is there any exemption for sex offenders who established their residences before a school, youth

program center, or public park moved within 1,000 feet of them. In essence with a single

exception,4 the residency restriction statute does not appear to include a civil or regulatory

component.

We do acknowledge however, that “the [overall] Act advances a legitimate regulatory

purpose,” namely, “public safety.” Wallace, 905 N.E.2d at 383. It could thus be argued that as a

part of the Act, the residency restriction statute is subsumed into this larger purpose. For this

reason we conclude there is ambiguity as to whether the legislature intended to impose

punishment by enacting the statute. Therefore, assuming without deciding that the legislature‟s

4

Subsection (d) of the statute provides a mechanism for certain offenders to petition the court “not earlier

than ten (10) years after the person is released from incarceration, probation, or parole” to consider

“whether the person should no longer be considered an offender against children.” I.C. § 35-42-4-11(d).

5

intent was to create a civil, non-punitive, regulatory scheme we examine whether the statute is so

punitive in effect as to negate that intent.

B. Whether the Effect of the Statute is Punitive

In assessing a statute‟s effects we are guided by seven factors that are weighed against

each other: “[1] Whether the sanction involves an affirmative disability or restraint, [2] whether

it has historically been regarded as a punishment, [3] whether it comes into play only on a

finding of scienter, [4] whether its operation will promote the traditional aims of punishment-

retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6]

whether an alternative purpose to which it may rationally be connected is assignable for it, and

[7] whether it appears excessive in relation to the alternative purpose assigned.” Wallace, 905

N.E.2d at 379 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963))

(alterations in original). No one factor is determinative. “[O]ur task is not simply to count the

factors on each side, but to weigh them.” Id. (quoting State v. Noble, 829 P.2d 1217, 1224 (Ariz.

1992)). We address each factor in turn.

1. Affirmative Disability or Restraint

When determining whether a law subjects those within its purview to an “affirmative

disability or restraint,” Mendoza-Martinez, 372 U.S. at 168, the Court inquires “how the effects

of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its

effects are unlikely to be punitive.” Smith v. Doe, 538 U.S. 84, 99-100 (2003).

The disability or restraint imposed by the residency restriction statute is neither minor nor

indirect. Specifically, Pollard is not allowed to live in a house he owns and in which he has

resided for approximately 20 years. And, according to Pollard, the statute would “require him to

incur the cost of obtaining other housing and relocating his residence.” Appellee‟s Br. at 3. In

addition, we observe that the statute prevents a sex offender from living in his or her own home

even if the offender purchased the home before the law took effect or if a school or youth

program center moved within 1,000 feet of the offender‟s home after the offender established

6

residency there. This is a substantial housing disadvantage. Although the statute does not affect

ownership of property, it does affect one‟s freedom to live on one‟s own property. A sex

offender is subject to constant eviction because there is no way for him or her to find a

permanent home in that there are no guarantees a school or youth program center will not open

within 1,000 feet of any given location. We are persuaded the first Mendoza-Martinez factor

clearly favors treating the effects of the Act as punitive when applied to Pollard.

2. Sanctions that have Historically been Considered Punishment

We next determine “whether [the sanction] has historically been regarded as a

punishment.” Mendoza-Martinez, 372 U.S. at 168. Restricting a person from living in certain

areas is not a sanction that historically has been considered punishment. Jurisdictions addressing

this aspect of the Mendoza-Martinez test, have drawn an analogy to the historical punishment of

banishment5 and have concluded that their residency statutes are not sufficiently similar to this

historical punishment. See, e.g., People v. Leroy, 828 N.E.2d 769, 780-81 (Ill. App. Ct. 2005)

(“Put simply, the restrictions placed on the defendant by [the residency statute] in no way

resemble the historical punishment of banishment . . . .”); State v. Seering, 701 N.W.2d 655,

667-68 (Iowa 2005) (finding Iowa‟s residency statute was “far removed from the traditional

concept of banishment” because it restricted only residence, allowing offenders to freely “engage

in most community activities”). However, we have determined “the fact that the Act‟s reporting

provisions are comparable to supervised probation or parole standing alone supports a conclusion

that the second Mendoza-Martinez factor favors treating the effects of the Act as punitive when

applied in this case.” Wallace, 905 N.E.2d at 380-81. In like fashion, restrictions on living in

certain areas is not an uncommon condition of probation or parole. See, e.g., Ind. Code § 11-13-

3-4(g)(2)(B) (providing that the parole board shall, as a condition of parole, “prohibit a parolee

who is a sex offender from residing within one thousand (1,000) feet of school property . . . for

the period of parole, unless the sex offender obtains written approval from the parole board”);

Ind. Code § 35-38-2-2.2 (providing that as a condition of probation for a sex offender the court

shall “prohibit the sex offender from residing within one thousand (1,000) feet of school property

5

“Banishment” has been defined as “„punishment inflicted upon criminals, by compelling them to quit a

city, place, or country, for a specific period of time, or for life.‟” United States v. Ju Toy, 198 U.S. 253,

269-70 (1905) (Brewer, J., dissenting) (quoting then-current edition of Black‟s Law Dictionary).

7

. . . unless the sex offender obtains written approval from the court”); Fitzgerald v. State, 805

N.E.2d 857, 867 (Ind. Ct. App. 2004) (observing that “[c]onditions of probation which reduce

the potential for access to potential victims are reasonable”). We conclude this factor also favors

treating the effects of the statute as punitive when applied to Pollard.

3. Finding of Scienter

Third, we consider “whether [the statute] comes into play only on a finding of scienter.”

Mendoza-Martinez, 372 U.S. at 168. “The existence of a scienter requirement is customarily an

important element in distinguishing criminal from civil statutes.” Wallace, 905 N.E.2d at 381

(quoting Kansas v. Hendricks, 521 U.S. 346, 362 (1997)). If a sanction is not linked to a

showing of mens rea, it is less likely to be intended as punishment.

The residency restriction statute applies to offenders found to be sexually violent

predators or offenders convicted of either child molesting, child exploitation, child solicitation,

child seduction, kidnapping, attempt or conspiracy to commit one of these offenses, or an offense

in another jurisdiction substantially similar to one of these offenses. Ind. Code § 35-42-4-11.

With the exception of child molesting, the underlying offenses that invoke this statute all require

a finding of scienter.6 At first blush it would thus appear this factor favors treating the effects of

the residency restriction statute as punitive when applied to Pollard. However, nothing in the

record mentions the offense for which Pollard was convicted. If indeed the offense were child

molesting, then this factor would not be punitive as to Pollard. In the absence of evidence one

way or the other on this point, we must treat the effects of the statute as non-punitive.

4. The Traditional Aims of Punishment

We next ask “whether [the statute‟s] operation will promote the traditional aims of

punishment–retribution and deterrence.” Mendoza-Martinez, 372 U.S. at 168. The underlying

assumption is that if the statute promotes the traditional aims of punishment, the statute is more

6

Child molesting as defined by Indiana Code § 35-42-4-3 (2006) requires no scienter where there is

sexual intercourse or deviate sexual conduct with a child under fourteen years of age.

8

likely punitive than regulatory. As we have observed, “although the Mendoza-Martinez test

focuses on retribution and deterrence, under [the Indiana] Constitution, the primary objective of

punishment is rehabilitation. „The penal code shall be founded on principles of reformation, and

not of vindictive justice.‟”7 Wallace, 905 N.E.2d at 381 (quoting Ind. Const. art. I, § 18). In any

event “[t]here is no question that the [overall] Act‟s deterrent effect is substantial . . . .” Jensen

v. State, 905 N.E.2d 384, 393 (Ind. 2009). By prohibiting sex offenders from living in certain

proscribed areas the residency restriction statute is apparently designed to reduce the likelihood

of future crimes by depriving the offender of the opportunity to commit those crimes. In this

sense the statute is an even more direct deterrent to sex offenders than the Act‟s registration and

notification regime. We conclude this factor favors treating the effects of the residency statute as

punitive when applied to Pollard.

5. Application Only to Criminal Behavior

Under the fifth factor we consider “whether the behavior to which [the statute] applies is

already a crime.” Mendoza-Martinez, 372 U.S. at 168. The fact that a statute applies only to

behavior that is already and exclusively criminal supports a conclusion that its effects are

punitive. Wallace, 905 N.E.2d at 381. There is no question that it is the determination of guilt

for a qualifying offense that exposed Pollard to further criminal liability under the residency

restriction statute. We conclude this factor favors treating the effects of the residency statute as

punitive when applied to Pollard.

6. Advancing a Non-Punitive Interest

We next ask whether, in the words of the Supreme Court, “an alternative purpose to

which [the statute] may rationally be connected is assignable for it.” Mendoza-Martinez, 372

U.S. at 168-69. This statement is best translated as an inquiry into whether the Act advances a

legitimate, regulatory purpose. Wallace, 905 N.E.2d at 382-83. There is no doubt that the

7

“Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any

problem except realizing „justice.‟ Deterrent measures serve as a threat of negative repercussions to

discourage people from engaging in certain behavior.” Wallace, 905 N.E.2d at 381 n.12 (quoting Artway

v. Attorney Gen. of N.J., 81 F.3d 1235, 1255 (3d Cir. 1996).

9

residency restriction statute has a purpose other than simply to punish sex offenders. As we have

observed, the overall Act “advances a legitimate purpose of public safety.” Id. at 383. It is

certainly reasonable to conclude that restricting sex offenders from residing within one thousand

feet of school property, a youth program, or a public park also advances public safety. We thus

conclude that the sixth Mendoza-Martinez factor favors treating the effects of the Act as non-

punitive when applied to Pollard.

7. Excessiveness in Relation to State’s Articulated Purpose

Finally we determine “whether [the statute] appears excessive in relation to the

alternative purpose assigned.” Mendoza-Martinez, 372 U.S. at 169. We give this factor the

greatest weight. See Wallace, 905 N.E.2d at 383-84. Although denominated as applying only to

“offender[s] against children,” the residency restriction statute is actually much broader. In

addition to applying to offenders convicted of five discrete crimes against children: child

molesting, child exploitation, child solicitation, child seduction, and kidnapping where the victim

is less than eighteen years of age, the statute also applies to an offender “found to be a sexually

violent predator under IC 35-38-1-7.5.” In relevant part Ind. Code § 35-38-1-7.5 defines a

sexually violent predator as “a person who suffers from a mental abnormality or personality

disorder that makes the individual likely to repeatedly commit a sex offense (as defined in IC 11-

8-8-5.2).” In turn Ind. Code § 11-8-8-5.2 defines sex offense as meaning “an offense listed in

section 4.5(a) [Ind. Code § 11-8-8-4.5(a)] of this chapter.” Section 4.5(a) lists seventeen (17)

specific offenses that qualify a convicted person as a sex offender, including: rape, criminal

deviate conduct, vicarious sexual gratification, incest, sexual battery, and promoting

prostitution.8

8

Ind. Code § 35-38-1-7.5 further defines a “sexually violent predator” in relevant part as a person who:

(2) commits a sex offense (as defined in IC 11-8-8-5.2) while having a

previous unrelated conviction for a sex offense for which the person is

required to register as a sex or violent offender under IC 11-8-8;

(3) commits a sex offense (as defined in IC 11-8-8-5.2) while having had

a previous unrelated adjudication as a delinquent child for an act that

would be a sex offense if committed by an adult, if, after considering

10

Although there is a rational connection to a non-punitive purpose – public safety and

protection of children – the residency restriction statute applies equally to persons convicted for

example of vicarious sexual gratification as a Class D felony in violation of Ind. Code § 35-42-4-

5(a) as to persons convicted of rape as a Class A felony in violation of Ind. Code § 35-42-4-1(b).

The statute does not consider the seriousness of the crime, the relationship between the victim

and the offender, or an initial determination of the risk of re-offending. See, e.g., Weems v.

Little Rock Police Dept., 453 F.3d 1010, 1017 (8th Cir. 2006) (noting “particularized risk

assessment of sex offenders . . . increases the likelihood that the residency restriction is not

excessive in relation to the rational purpose of minimizing the risk of sex crimes against

minors”). Restricting the residence of offenders based on conduct that may have nothing to do

with crimes against children, and without considering whether a particular offender is a danger to

the general public, the statute exceeds its non-punitive purposes. We are persuaded this factor

favors treating the effects of the statute as punitive when applied to Pollard.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the

inquiry of whether a statute has a punitive effect, only two factors – finding of scienter and

advancing a non-punitive interest – point in favor of treating the effects of the Act as non-

punitive. The remaining factors, particularly the factor of excessiveness, point in the other

direction.

Conclusion

Anthony Pollard was charged with, convicted of, and apparently served the sentence for a

crime qualifying him as an offender against children before the residency restriction statute was

enacted. We conclude that as applied to Pollard, the statute violates the prohibition on ex post

facto laws contained in the Indiana Constitution because it imposes burdens that have the effect

expert testimony, a court finds by clear and convincing evidence that the

person is likely to commit an additional sex offense; or

(4) commits a sex offense (as defined in IC 11-8-8-5.2) while having had

a previous unrelated adjudication as a delinquent child for an act that

would be a sex offense if committed by an adult, if the person was

required to register as a sex or violent offender under IC 11-8-8-5(b)(2).

11

of adding punishment beyond that which could have been imposed when his crime was

committed. The trial court thus properly dismissed the information charging Pollard with a

violation of the statute. See State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (declaring “courts

have the inherent authority to dismiss criminal charges where the prosecution of such charges

would violate a defendant‟s constitutional rights”). We affirm the trial court‟s judgment.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.

Boehm, J., concurs in result and concurs in the opinion except as to Part B3, believing the

absence of a scienter element for certain forms of child molesting is not significant in evaluating

the punitive character of this statute.

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