Extension of Indiana Sex Offender Registration to Lifetime

Nearly every call I receive now regarding offender registration issues is from a registrant whose registration period in Indiana has been extended from ten years to life by the D.O.C. Registrants are usually notified of this extension when they are nearing the end of their ten-year registration period.

Trying to figure out why their registration period has been changed is largely a process of elimination. But recently the answer is nearly always the same: at some point the registrant either visited or moved to another state before returning to Indiana.

Since 2006, Indiana has required three categories of people to register: (1) those with Indiana convictions triggering the registration requirement (Indiana Code section 11-8-8-5(a)); (2) those with out-of-state convictions that are substantially similar to Indiana’s triggering offenses (Indiana Code sections 11-8-8-5(a) and 1-1-2-4(d)); and (3) those who are required to register in any jurisdiction (Indiana Code section 11-8-8-5(b)(1)).

Most states in the country have similar provisions. Thus, when a registrant travels around the country, his obligation to register travels with him. Until recently, however, that obligation did not change upon the registrant’s return to Indiana.

Indiana has one of the more “lenient” registration obligations. Many sex or violent offenses carry only a ten-year registration requirement. Other states have longer periods of registration required. When an Indiana registrant moves to one of those states, he must register pursuant to their registration law. In many cases, that means a ten-year registrant who moves to another state may be required to register in that state for a longer period of time if he chooses to remain there.

But what happens if a registrant moves back to Indiana? Recently, the Indiana D.O.C., who manages Indiana’s Sex and Violent Offender Registry, has interpreted Indiana law to allow for the requirements that were placed on the registrant in the other jurisdiction to carry over to Indiana upon the registrant’s return.

I am currently litigating an appeal where this situation happened when a registrant merely visited another state for vacation and returned home to Indiana, only to learn that his ten-year registration period had been changed by the D.O.C. to registration for life. Other registrants brought their own challenges, and a few weeks ago, the first appellate opinion squarely addressed the issue.

In Marroquin v. State, decided by the Court of Appeals on February 23, 2024, a defendant was convicted in 1998 of Class D felony sexual misconduct of a minor. This offense, at the Class D felony level, has never carried with it a registration requirement. Thus, after conviction and sentencing the defendant in Marroquin was not required to register in Indiana as a sex or violent offender.

In 2000, the defendant moved to Virginia, where the law required him to register for a period of ten years due to his Indiana conviction. In 2007, Virginia changed the law to require registrants with similar convictions to register for life.

When the defendant moved back to Indiana in 2018, the local sheriff advised him that he had carried his Virginia registration requirement back to Indiana and was now required to register in Indiana for life. The sheriff believed the defendant in Marroquin fell into the third category of registrants identified above.

The defendant sought a declaratory judgment, seeking clarification of his registration requirement under Indiana law. The Court of Appeals held that since the defendant had no independent requirement to register in another jurisdiction, he did not fall within the third category of registrants.

The Court’s published opinion was brief and did not go into a lengthy discussion about the other-jurisdiction provision, which the sheriff believed applied to Marroquin. But a plain reading of the provision certainly supports the Court’s holding. The other-jurisdiction provision is written in the present tense. It only applies to those who have a present obligation to register in another jurisdiction.

A present duty to register can come about in two ways. First, it can be a collateral consequence of a criminal conviction. In Indiana, for example, a collateral consequence of a criminal conviction for Level 6 felony sexual battery is an independent requirement to register for a period of ten years. This requirement follows a defendant wherever he goes; moving away from Indiana does not relieve him of the requirement to register for ten years. The other way a duty to register can arise is under the laws of the state where a person lives, works, owns real property, or attends school. When a person has certain residential or vocational ties to a state, the existence of a prior conviction can create a registration requirement…but only while the person has ties to that state. Once the person severs all ties, there no longer exists a present obligation to register in that state.

Once Marroquin moved away from Virginia and severed all ties with that state, he had no present obligation to register there. Upon relocating to Indiana, Marroquin fell under Indiana law. He did not fall under any of the three categories identified above. Thus, he was under no obligation to register.

The State has until April 8, 2024 to petition the Supreme Court of Indiana to transfer jurisdiction of the case to its court for review. There is a decent possibility the Supreme Court would grant such a request, given the number of registrants in a similar situation as Marroquin and the fact that the issue is one of first impression.