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State v. Zerbe

Court of Appeals of Indiana

May 29, 2015

State of Indiana, Appellant-Respondent,
v.
Scott Zerbe, Appellee-Petitioner

Appeal from the Marion Superior Court. The Honorable Timothy W. Oakes, Judge. Case No. 49D13-1403-MI-9780.

ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Joel M. Schumm, Joel M. Schumm, Certified Legal Intern, Appellate Clinic, Indiana University Robert H. McKinney, School of Law, Indianapolis, Indiana.

Crone, Judge. Brown, J., concurs. Baker, J., dissents with opinion.

OPINION

Page 835

Crone, Judge.

Case Summary

[¶1] Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana's Sexual Offender Registration Act (" SORA" ) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him " fair warning that his conduct would result in a penalty requiring him to register as a sex offender." Appellant's App. at 5. The State opposed Zerbe's petition, which the trial court granted.

[¶2] On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA's registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse.

Facts and Procedural History

[¶3] The relevant facts are undisputed. In 1991, Zerbe engaged in sexual activity with a fourteen-year-old victim in Michigan. In 1992, he was convicted of criminal sexual conduct in the second degree and was sentenced to a minimum term of eight years. He was released from prison in 1999. Under Michigan law, Zerbe was required to register as a sex offender for twenty-five years. Mich. Comp Laws § 28.725.

[¶4] In 1994, the Indiana legislature enacted SORA, which requires persons convicted of certain offenses to register as sex offenders. Ind. Code ch. 5-2-12 (1994) (now Ind. Code ch. 11-8-8). SORA has been amended many times since. Most relevant for our purposes, in 2006 SORA was amended to define sex offender as " a person who is required to register as a sex offender in any jurisdiction." Ind. Code § 11-8-8-5(b)(1). And in 2007 SORA was amended to provide that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction, at minimum. Ind. Code § 11-8-8-19(f).[1]

[¶5] In December 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan.[2] A sex offender may petition a

Page 836

court to remove his designation as an offender or impose less restrictive registration conditions. Ind. Code § 11-8-8-22(c). The petitioner bears the burden of proving that he is entitled to relief. Ind. Code § 11-8-8-22(h). In March 2014, Zerbe filed a petition to remove his designation as an offender, asserting that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed his Michigan offense, and therefore he " did not have a fair warning that his conduct would result in a penalty requiring him to register as a sex offender." Appellant's App. at 5. The ...


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