State v Pollard

6-30-2009 Indiana:

State v Pollard
908 N.E.2d 1145 (2009)

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the "residency restriction statute" constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

Facts and Procedural History
On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which he was apparently sentenced.1 On July 1, 2006, the residency restriction statute — Ind. Code § 35-42-4-11 — came into effect. That statute provides that a person convicted of certain sex-related crimes is classified as an "offender against children" and commits "sex offender residency offense," a Class D felony, if the person knowingly or intentionally resides within 1,000 feet of school property, a youth program center, or a public park.2 On January 23, 2007, the State charged Pollard with violation of the residency restriction statute, and Pollard responded with a motion to dismiss contending the statute violated the ex post facto prohibition contained in Article I, section 24 of the Indiana Constitution. The parties presented the matter to the trial court based on stipulated facts as follows:

1. That the defendant, Anthony W. Pollard, has an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana. Further, Anthony W. Pollard has had his ownership interest in the real estate for approximately the past 20 years.

2. That the defendant, Anthony W. Pollard had an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause.

3. That the residence owned and occupied by Anthony W. Pollard located at 817 North Monroe Street, Hartford City, Indiana is within one thousand (1,000) feet of school property, a youth program center or a public park.

4. That the defendant, Anthony W. Pollard was residing at the residence located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause. The defendant resided at the residence located at 817 North Monroe Street, Hartford City, Indiana more than two (2) nights in a thirty (30) day period prior to January 12, 2007.

5. That the defendant, Anthony W. Pollard has a prior conviction for an offense listed under I.C. 35-42-4-11(a)(2).

6. That the defendant, Anthony W. Pollard's conviction under I.C. 35-42-4-11(a)(2) occurred prior to the effective date of Indiana Code 35-42-4-11 which was on July 1, 2006.

7. That the defendant, Anthony W. Pollard has been a resident and owner of the residence located at 817 North Monroe Street, Hartford City, Indiana for at least one year prior to the effective date of I.C. 35-42-4-11.

Appellant's App. at 9-10. After entertaining arguments of counsel, submitted by way of written memoranda, the trial court granted Pollard's motion to dismiss concluding that as applied to Pollard the residency restriction statute violates the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. Appellant's App. at 19. On review, focusing primarily on the punitive impact of the statute on Pollard's property interest, the Court of Appeals agreed and affirmed the trial court's order of dismissal. State v. Pollard,886 N.E.2d 69 (Ind.Ct.App.2008). Although we agree the trial court's order of dismissal should be affirmed our analysis is different from that of our colleagues. We therefore grant transfer and affirm the judgment of the trial court.3

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Conclusion
Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute 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. The trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis,898 N.E.2d 281, 285 (Ind.2008) (declaring "courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant's constitutional rights"). We affirm the trial court's judgment.

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Ind. Supreme court finds residency law not retroactive

INDIANAPOLIS (AP) - The Indiana Supreme Court says convicted sex offenders need not relocate if they resided near places frequented by children before a 2006 state law that restricts where they live.

The court ruled this week that the law violates the Indiana constitution by retroactively punishing ____ of Blackford County.

He had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997. ____ then was charged in 2007 with violating the law that prohibits convicted sex offenders from living within 1,000 feet of a school, park or youth program center.

A Blackford County judge dismissed the charge as unconstitutional, and the state appealed. But the Indiana Court of Appeals and now the state Supreme Court both upheld the local ruling. ..Source.. by Fox28.com