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State v. Summers

Court of Appeals of Indiana

October 19, 2016

State of Indiana, Appellant-Respondent/Plaintiff,
v.
Charles Summers, Appellee-Petitioner/Defendant.

         Appeal from the Cass Superior Court The Honorable Thomas C. Perrone, Judge Trial Court Cause Nos. 09D01-1510-MI-70, 09D01-1508-F6-233

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

          ATTORNEY FOR APPELLEE Mark K. Leeman Leeman Law Office and Cass County Public Defender Logansport, Indiana.

          Vaidik, Chief Judge.

         Case Summary

         [¶1] After being ordered to register as a sex offender in Illinois for ten years, Charles Summers moved to Indiana. Summers later registered as a sex offender in Indiana. When Indiana applied its tolling statute to Summers (in order to extend Summers' registration period by the amount of time he was incarcerated in Indiana for new crimes committed), Summers claimed that applying the statute to him violated Indiana's prohibition against ex post facto laws. He argued that when he committed his underlying offense in Illinois, Indiana had not yet enacted its tolling statute. Because Summers was under a tolling requirement in Illinois, we find no punitive burden to maintaining that requirement across state lines. Because there is no ex post facto violation, we reverse the trial court and remand this case.

         Facts and Procedural History

         [¶2] On April 27, 2005, Summers, age thirteen, was adjudicated a juvenile delinquent in Illinois for "Criminal Sex Abuse." Appellant's App. p. 29. He was placed on probation and ordered to register as a sex offender in Illinois for ten years. As a sex offender, if Summers became incarcerated for an unrelated conviction or adjudication, his registration period was tolled for that time period according to Illinois statute, 730 ILCS 150/7.[1] See Lesher v. Trent, 944 N.E.2d 479, 483 (Ill.App.Ct. 2011) (noting that although 730 ILCS 150/7 was amended in 2008 to clarify an "ambiguity" regarding whether tolling was required, the Illinois Appellate Court held that the statute had always required tolling and that "the 2008 amendment merely clarified this requirement"), reh'g denied.

         [¶3] Summers moved to Indiana "several years" after his April 27, 2005 delinquency adjudication. Tr. p. 54;[2] Appellant's App. p. 21.

         [¶4] Effective July 1, 2006, the Indiana General Assembly amended the Sex Offender Registration Act's (SORA) definition of sex offender to include "a person who is required to register as a sex offender in any jurisdiction." P.L. 140-2006, § 13; P.L. 173-2006, § 13; see Ind. Code §§ 11-8-8-4.5(b)(1), -5(b)(1). Then, effective July 1, 2008, the General Assembly amended SORA to provide that the registration period is tolled during any period that a sex offender is incarcerated. P.L. 119-2008, § 8; see Ind. Code § 11-8-8-19(a).

         [¶5] On August 26, 2010, Summers was convicted of two counts of robbery in Miami County, Indiana, and sentenced to the Indiana Department of Correction. After Summers was released from the DOC in 2015, he registered as a sex offender in Cass County, Indiana, [3] see Appellant's App. p. 39-40, and was told by the DOC that SORA's tolling statute, Indiana Code section 11-8-8-19(a), extended his duty to register from April 27, 2015, to January 28, 2019, which was the amount of time that he had been incarcerated in the DOC.

         [¶6] On August 2, 2015, police went to Manor Motel in Logansport to verify the address that Summers had provided when he registered as a sex offender in Cass County, and management told police that Summers had moved out a few days earlier. Thereafter, the State charged Summers with Level 6 felony failure to register as a sex offender[4] and Class A misdemeanor failure of a sex offender to possess identification under Cause No. 09D01-1508-F6-233 ("Cause No. F6-233"). Appellant's App. p. 42.

         [¶7] Summers filed a motion to dismiss the criminal charges, arguing that SORA's tolling provision, as applied to him, violated Indiana's prohibition against ex post facto laws because Indiana's tolling provision was enacted three years after his delinquency adjudication in Illinois. Following a hearing, the trial court dismissed the criminal charges against Summers.

         [¶8] The same day that the criminal charges were dismissed, Summers, pursuant to Indiana Code section 11-8-8-22, filed a petition to remove his name from Indiana's sex-offender registry under Cause No. 09D01-1510-MI-70 ("Cause No. MI-70"). Id. at 5. The State later filed a motion to correct error in the criminal case, and the trial court held a joint hearing on the State's motion to correct error and Summers' petition to remove his name from the registry. Following the joint hearing, the court denied the State's motion to correct error ...


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