Flanders v Indiana

9-19-2011 Indiana:

Flanders v Indiana

After Flanders was convicted of sexual misconduct with a minor, amendments to the sex offender registry statutes reclassified him as a sexually violent predator (―SVP‖). In his petition for post-conviction relief, Flanders also challenged his designation as an SVP on four grounds: (1) classification as an SVP can happen only at sentencing; (2) the Department of Correction (―DOC‖) violated the separation of powers provisions of the Indiana Constitution by reclassifying him as an SVP; (3) reclassification without prior notice and a hearing violated his right to due process under both the federal and state constitutions; and (4) the amended version of the sex offender registry statutes violates the Indiana Constitution’s prohibition of ex post facto laws.

The State does not address these arguments, but asserts that the post-conviction court’s denial of these claims was correct because Flanders did not comply with Indiana Code Section 11-8-8-22 (titled ―Petition to remove designation or register under less restrictive conditions‖). On the contrary, Flanders complied with the version of Indiana Code Section 11-8-8-22 that was in effect at the time that he filed his petition for post-conviction relief, and we see no reason why a petition filed pursuant to that section may not be addressed in the same proceeding as a petition for post-conviction relief.

On the merits of Flanders’s arguments concerning his SVP status, we conclude that our supreme court has already rejected Flanders’s first three arguments. However, we conclude that a 2007 amendment that eliminated his eligibility to petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied to Flanders. We also conclude that this violation can be remedied by reinstating his eligibility to petition for a change in status after his initial ten-year requirement to register has passed. Therefore, we affirm the post-conviction court in part and reverse in part.

We conclude that the 2007 version of Indiana Code Section 35-38-1-7.5(g), which made Flanders ineligible to petition for a change of status, is an unconstitutional ex post facto law as applied to him. Therefore, he must be allowed to petition for a change in status once a year after he has registered for ten years. Flanders has not shown that the remaining provisions of the sex offender statutes violate a constitutional right. Therefore, we affirm the post-conviction court as to the claims of ineffective assistance of counsel, but reverse the court’s ruling as to Flanders’s SVP status. Affirmed in part and reversed in part.