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Wallace v State

4-30-2009 Indiana:

Wallace v State
(905 N.E.2d 371 (2009))

The statutes collectively referred to as the Indiana Sex Offender Registration Act ("Act") require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision.



The Indiana Supreme Ct - under certain circumstances- Declares Sex Offender Registration an Ex Post Facto Violation

4-30-2009 Indiana:

In Wallace -v- Indiana (No. 49S02-0803-CR-138) 54-30-2009 the high court held:

Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

The major difference between this holding and so many others. including those of other states is, that THIS TIME the Indiana Supreme court reviewed the state's sex offender registration laws INCLUDING ALL OF TODAY'S INDIANA'S COLLATERAL ATTACHMENTS, where so man other courts merely followed the holding of other earlier courts which DID NOT review sex offender registration laws IN A PRESENT DAY'S LIGHT.

Facts and Procedural History

In 1988, Richard Wallace was charged with one count of child molesting as a Class B felony and one count of child molesting as a Class C felony. Under terms of a plea agreement Wallace pleaded guilty to the Class C felony count on February 15, 1989. The trial court imposed a five-year suspended sentence with various conditions of probation. Wallace completed probation in 1992. Two years later the Indiana Legislature passed the Act that, among other things, required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders. In 2001 the Act was amended to require all offenders convicted of certain sex offenses to register as sex offenders regardless of conviction date.

In 2003, Wallace.s ex-wife notified authorities that Wallace had been convicted of a sex offense but had never registered as an offender. The Sex Offender Registration Coordinator for the Indianapolis Police Department investigated the matter, concluded Wallace was required to register, and sent Wallace a letter to that effect. Wallace responded to the Coordinator on December 31, 2003, and insisted that he did not have to register as a sex offender because the plea agreement executed in 1989 did not require him to do so.

After Wallace did not register, he was charged with failing to register as a sex offender as a Class D felony. Wallace subsequently filed a motion to dismiss, which the trial court denied. Following a trial by jury on January 31, 2007, he was found guilty as charged. The trial court sentenced Wallace to 545 days of incarceration, all suspended to probation. He appealed raising three claims: (1) the plea agreement foreclosed the State.s ability to prosecute him for failing to register as a sex offender, (2) the evidence was insufficient to support the conviction, and (3) the Act violates the ex post facto provisions of both the Indiana and federal Constitutions. The Court of Appeals affirmed the judgment of the trial court. Wallace v. State, 878 N.E.2d 1269, 1277 (Ind. Ct. App. 2008).



Rulings affect sex offender state registry

5-2-2009 Indiana:

Court decision might remove names

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry.

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

Gull on Friday said she could not comment on either ruling because she doesn’t have a certified copy of them and there are matters that could be further appealed.

Looking ahead

For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.” ..News Source.. by Rebecca S. Green, The Journal Gazette



Molester registry change on trial


5-16-2008 Indiana:

INDIANAPOLIS – Attorneys for two convicted child molesters argued before the Indiana Supreme Court on Thursday that legislators violated the Indiana Constitution when they retroactively broadened a law regarding sex offender-registry requirements.

Todd Jensen pleaded guilty in 2000 in Allen Superior Court to one count of vicarious sexual gratification and one count of child molesting.

He served his three-year prison term and completed another three years of probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, he was notified by the Allen County Sheriff’s Department that he was now considered a sexually violent predator and would have to register for life. This includes checking in with the department every 90 days and submitting to house visits by authorities several times a year.

Jensen has not been convicted of any new crime, but the legislature decided in 2006 to change the definition of sexually violent predator. A judge is no longer required to have expert evaluations to make that determination. Instead, anyone convicted of a specified list of sexual offenses was automatically shifted to the status of sexually violent predator and the lifetime registry.

“The state says the registry is civil in nature,” attorney Randy Fisher of Fort Wayne said. But he noted that each year the legislature adds or changes requirements of the registry. “There has to be a threshold. It is clearly punitive.”

Fisher represents Jensen, who in 2006 asked for a determination from a local judge on his registration status and was found under the new law to be a sexually violent predator. But the Indiana Court of Appeals ruled in December that the law violated ex post facto prohibitions in the state and federal constitutions.

Specifically, the court found that the new law retroactively changed the elements or facts required to find Jensen a sexually violent predator.

The Indiana Supreme Court vacated that decision (Todd Jensen) and took the case up Thursday along with a similar one (Richard Wallace) out of Marion County.

The case is the latest battle over whether lawmakers have been too aggressive in their desire to monitor convicted sex offenders.

On Tuesday, the Indiana Court of Appeals ruled (in Anthony Pollard) that the state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency.

The court said Tuesday that the 2006 law – that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center – was an unconstitutional ex post facto law in that it punishes sex offenders for behavior that wasn’t illegal when it was committed.

The crux of Thursday’s argument was whether the state’s sex offender registry is punitive in nature or increases punishment for old crimes.

“The intent isn’t to attach additional punishment,” said J.T. Whitehead, who appeared on behalf of the Attorney General’s Office. “It is to put the rest of us on notice and make it easier for police to track these offenders.”

But Fisher said the registry requires those convicted to take affirmative steps – sign up, provide information, pay fees and carry ID at all times – and if they don’t they can be charged with a criminal violation.

“They are like additional conditions of probation and sentence, and it never ends,” said Kathleen Sweeney, an attorney representing the defendant in the Marion County case.

At one point, Justice Theodore Boehm asked Whitehead whether it is unfairly burdensome to require someone who has had no contact with the criminal justice system for years to suddenly fall under new requirements as a result of a decades-old conviction.

“What about basic fairness,” Boehm asked. “Isn’t there something wrong with that picture?”

Whitehead responded, “How the process feels isn’t important” under previous U.S. Supreme Court rulings.

Sen. Tom Wyss, R-Fort Wayne, who authored the sexually violent predator change in 2006, said lawyers at the time told legislators the law would not be unconstitutional.

“I consider that an absolute standard of assuring parents and children that we know who this person is and where they are, not necessarily punishment,” he said.

“You can look at it as going back on somebody and making something retroactive, but when someone commits that abhorrent of an act then I really have no sympathy for them.” ..more.. by Niki Kelly


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