Majority: Sex offender registration not ex post facto law

Jennifer Nelson for www.theindianalawyer.com

The Indiana Court of Appeals upheld the requirement that man convicted of a sex crime in Washington must also register as a sex offender in Indiana, finding the requirement is not an ex post facto punishment under the Indiana Constitution. But one judge disagreed, and would reverse his registration requirement.

Rex Lovett was convicted of rape of a child and child molestation in Washington state in 1991. When he was released from prison in 2003, he was required to register as a sex offender in that state indefinitely. He moved to Indiana that year, where in 2007, he was required to register as a serious violent predator and comply with more rigorous restrictions after the General Assembly passed amendments to the Sex Offender Registration Act.

Lovett claimed the registration requirement is unconstitutional as applied to him because it violates the ex post facto clause of the state constitution. The trial court denied his petition, and Judges L. Mark Bailey and Paul Mathias affirmed in Rex S. Lovett v. State of Indiana, 20A04-1506-MI-591.

“Lovett was subject to registration requirements in the State of Washington from the date of his conviction; it is not adding to his punishment to require continued registration in Indiana. And he should not be allowed to evade these requirements simply by relocating to Indiana, when the sole basis for that evasion would be a conviction date for a crime committed outside Indiana,” Judge Bailey wrote for the majority.

Judge John Baker dissented, pointing to the line of cases, starting with Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which the courts have plainly held the date of primary importance is the date of the original conviction.

“Notwithstanding the state of the law at the time Lovett moved to Indiana, he is a resident of this State and ‘is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Washington’s] laws, Indiana’s law controls,’” Baker wrote, citing Hough v. State, 978 N.e.2d 505 (Ind. Ct. App. 2012), trans denied. “Lovett was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws; I would affirm the trial court’s judgment.”