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Burton v Indiana

11-8-2012 Indiana:

Burton v Indiana
No. 45A03-1201-CR-6.

In this interlocutory appeal, Jerome Michael Burton challenges the trial court's denial of his motion to dismiss the charge of failure to register as a sex offender.
We reverse and remand.

The issue is whether it is a violation of the ex post facto provision of the Indiana Constitution to require Burton to register under the Indiana Sex Offender Registration Act ("SORA") as one who is required to register in another state, Illinois, when the statutes requiring him to register in Illinois and in Indiana were enacted after he had been convicted of the qualifying offense in Illinois.

In 1987, Burton was convicted in Illinois of aggravated criminal sexual assault and sentenced to six years. At that time in Illinois, Burton was under no requirement to register. In 1996, Illinois amended its SORA to require persons who had committed crimes such as Burton's to register for a period of ten years.

Thereafter, he was convicted in Illinois in 2003 and in 2007 for sex offender registration violations. Burton then moved to Indiana and, in 2009, was convicted in Indiana of failure to register as a sex or violent offender and was sentenced to one year pursuant to our SORA. See Ind. Code §§ 11-8-8-1 to -22. The version of our SORA under which Burton is required to register first became effective in 2006. See Ind. Code §§ 11-8-8-5(b)(1) (stating that the term "sex offender" includes a person who is required to register as a sex offender in any jurisdiction), -7(1) (stating that a sex offender who resides in Indiana must register).

Following his release, Burton registered as a sex offender from June through October 2009; however, he failed thereafter to register. In April 2011, he was charged with two Class C felony counts of failure to register pursuant to Indiana Code section 11-8-8-17 (2007). Burton filed a motion to dismiss these charges on the ground that the requirement that he register violates the ex post facto provision of the Indiana Constitution. The trial court, following a hearing, denied Burton's motion, and the case comes to us on interlocutory appeal of that denial.

... ... ... ...

For the reasons stated, we reverse the trial court and remand with instructions to grant Burton's motion to dismiss. Reversed and remanded with instructions.

Court: Some out-of-state sex offenders don't have to register

11-9-2012 Indiana:

INDIANAPOLIS | A Hammond man convicted in 1987 of a sex crime in Illinois is not required to register as a sex offender in Indiana, because his Illinois conviction came before Indiana enacted its sex offender registration law in 1994, the state Court of Appeals ruled Thursday.

Jerome Burton, 46, is awaiting trial in Lake County on two felony counts of failure to register as a sex offender. Burton asked the appeals court to dismiss those charges as unconstitutionally retroactive, also known as ex post facto.

In 1987, Burton was convicted of aggravated criminal sexual assault and sentenced to six years in prison. A 1996 Illinois law required certain sex offenders, including Burton, to register for 10 years.

According to court records, Burton was convicted in Illinois for failing to register in 2003 and 2007, and the 10-year registration requirement was reset.

Indiana prosecutors argued that extension means Burton was required to register in Indiana upon moving to Hammond, under a 2006 law that mandates sex offenders living in Indiana that are required to register in any other state also must register in Indiana.

But in a 3-0 decision, the appeals court ruled Burton cannot be required to register in Indiana because his original 1987 conviction predates Indiana's 1994 sex offender registration law, and the Indiana Supreme Court has ruled that requiring pre-1994 Hoosier sex offenders to register is constitutionally prohibited.

The appeals court said Indiana owes no deference to Illinois' registration extensions, and so long as Burton lives in Indiana his rights are protected by the Indiana Constitution's prohibition on retroactive punishment.

"The underlying purpose of the ex post facto clause is to give effect to the fundamental principle that persons have a right to fair warning of the type of conduct that will give rise to criminal penalties," said Senior Judge John Sharpnack.

The appeals court ordered Burton's pending failure to register charges be dismissed, though that decision can still be appealed to the Indiana Supreme Court. ..Source.. by Dan Carden

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