Seales v State

2-28-2014 Indiana:

Seales v State

Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm.

Seales pled guilty in October 1998 to Class B felony child molesting1 for an offense committed in 1996, and the court imposed a twenty-year sentence, with ten years suspended and six years on probation. When Seales committed the offense, the Indiana Sex Offender Registration Act required an offender to register for ten years from the date he was placed on probation. Ind. Code § 5-2-12-5 (1996).

In 2011, Seales brought a Verified Motion to Determine Sex Offender Registration Requirements and Remove Defendant from Registry. In that motion, Seales noted that, at the time of his conviction, the statute required him to register as a sex offender for ten years, but in 2006 the law was changed to require lifetime registration. That change, he asserted, was an impermissible ex post facto law.

He asked the trial court to direct the State to remove him from the sex offender registry and to issue an order that he was not required to register. The trial court determined Seales must continue to register as a sexually violent predator for the rest of his life pursuant to Ind. Code § 11-8-8-19, denied his motion to be removed from the registry, and subsequently denied his motion to correct error.

... ... ...

Conclusion:
As Seales, like Jensen, has available to him avenues of relief related to his future dangerousness “in relation to the alternative purpose assigned, protection of the public,” id. at 321, we find the seventh factor weighs in favor of treating the lifetime registration requirement as non-punitive, and we therefore cannot say it was error for the trial court to deny Seales’ petition to be removed from the sex offender registry.

Affirmed.

William Carl Welsh: Sex offender profile

zzzzzzzzzzzzzzzzzzzzz

People v Kayer

UPDATE 2-16-2014: State legislature is now trying to amend law (SB 2912) because of this case (See article below)

5-6-2013 Illinois:

People v Kayer

In July 2011, the State charged defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6 (West 2010)). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment.

Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/6 (West 2010)).

We agree and vacate defendant's conviction.

... ... ...

17 III. CONCLUSION

¶ 18 We conclude section 6 of the Registration Act did not require defendant to report his loss of employment as a change in his place of employment. Defendant's guilty plea and conviction were based upon actions not constituting a criminal offense.

We vacate defendant's conviction as void.

---

Lawmakers consider tweaking sex offender laws

2-5-2014:

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

The twin pieces of legislation were introduced after lawmakers said they encountered holes in the current statutes, the Springfield bureau of Lee Enterprises newspapers reported.

"Attending the county fair is geared more toward families," said state Rep. Mike Smiddy, a Democrat from Port Byron who sponsored one of the bills. "A lot of children are there. They have a lot of children's events, like tractor pulls and stuff, attached to these things. I just don't believe that a registered sex offender should be allowed to go to those areas where children are present."

Smiddy said he introduced the measure at the request of officials in Whiteside County. Sex offenders would still be allowed to attend the state fair if the bill passes. They're already banned from working at county fairs.

The second bill would require convicted sex offenders who lose their jobs to update their registration with state police. The current law only requires sex offenders to notify authorities if they change jobs.

Sen. Jason Barickman, a Bloomington Republican who co-sponsored the bill (SB 2912), said he thinks those who drafted the original law meant to require registered sex offenders to also report the loss of a job.

He said charges against a sex offender were dismissed in McLean County because of ambiguity over when people had to report a change in employment. ..Source.. by

State v Stringer

1-23-2014 Iowa:

State v Stringer

Dale Stringer appeals the court's denial of his application to remove the requirement that he complete sex offender treatment as a condition of his probation. Stringer pled guilty to prostitution, in violation of Iowa Code section 725.1 (2011), following a police sting operation where Stringer offered an undercover police officer $40 for sex.

He was sentenced to 365 days in jail, that sentence was suspended, and he was placed on probation for two years. Stringer contends the crime of prostitution is not a sex offense under section 692A.102, and his criminal history does not justify the imposition of sex offender treatment as a condition of his probation.

... ... ...

Based on the record before us, we cannot say that sex offender treatment "relates to the defendant's circumstances in a reasonable manner and is justified by the defendant's circumstances." Valin, 724 N.W.2d at 446, 449 (finding the trial court abused its discretion by imposing sex offender treatment as a condition of probation on a defendant convicted of operating while intoxicated where the defendant had a prior conviction for assault with intent to commit sexual abuse but had already successfully completed sex offender treatment as part of the prior conviction); State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (finding the trial court abused its discretion when it imposed a batterer's treatment program as a condition of probation on a defendant who was acquitted of domestic abuse and had no prior history of such conduct).

We conclude that the court abused its discretion when it refused to remove the Department of Correctional Services' requirement of sex offender treatment programming as a condition of Stringer's probation.

We therefore reverse the district court's decision imposing sex offender treatment as a condition of Stringer's probation.

REVERSED.

Supreme Court says DuPage man must register as sex offender

Article continues below, first the unfair appellate court decision (See Rule 606(c) Appeal motion dismissed, not as untimely just dismissed). This lower appellate court decision was upheld by the Illinois Supreme court HERE:

12-12-2012 Illinois:

People v Bailey

On March 14, 2007, defendant, Christopher B. Bailey, entered an open guilty plea to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days, with credit for time served. On October 7, 2010, defendant filed a motion to vacate his plea and sentence as being void. The State filed a response, arguing against the motion, but it did not challenge the timeliness of the motion. The trial court denied the motion on January 28, 2011.

Defendant filed a notice of appeal on February 25, 2011, appealing the denial of his motion to vacate his plea and sentence. He raises the following issues:

• (1) whether the trial court had jurisdiction (and therefore this court has jurisdiction) to rule on his untimely motion to vacate, pursuant to the revestment doctrine, and
• (2) whether the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).

The State responds that the trial court was not revested with jurisdiction and thus this court lacks jurisdiction.
We agree with the State and dismiss the appeal.

BACKGROUND

¶ 3 The offense to which defendant pled guilty arose from consensual sex between the 17–year–old defendant and his 16–year–old girlfriend. See 720 ILCS 5/12–15(c) (West 2006). The State requested, among other things, that the trial court sentence defendant to two years of sex offender probation and order defendant to undergo a sex offender evaluation, to register as a sex offender, and to submit to HIV and STD testing.

After the trial court sentenced defendant, an unidentified speaker, presumably either defense counsel or the prosecutor, asked: “Judge, is there any sentence regarding [sex offender] registration?” The judge replied: “No[,] * * * I think my sentence was fair and appropriate based upon what's going on.

He's going to be on mandatory supervised release on the parole anyway.” The court then determined that defendant had been incarcerated since September 2006 and stated, “we have plenty of time to * * * handle this another way.” Defendant acknowledged that he had read a notice of his appeal rights, discussed those rights in great detail with his counsel, understood them, and had no questions about them. Defendant did not file any timely postjudgment motions following sentencing.

... ... ...

---

Continuation of Article date 2-6-2014
A DuPage County man has to remain on the state sex offender registry after his bid to remove himself was rejected by the Illinois Supreme Court Thursday.

Christopher Bailey of Clarendon Hills pleaded guilty in 2007 to sexual assault involving his 16-year-old girlfriend when he was 17.

Bailey, now 25, argued the judge in the original case told him he didn't have to register as a sex offender. But when he was forced to do so in 2010, Bailey asked that his original sentence be tossed out.

The Supreme Court Thursday voted unanimously to reject that request, calling it "untimely." The court ruled that too much time had passed between Bailey's sentencing and his bid to overturn it.

"We're pleased that the court's decision clarifies a specific area of Illinois law" concerning the timeliness of cases like this one, said Maura Possley, a spokeswoman for Attorney General Lisa Madigan's office.

Bailey is being held in DuPage County Jail, having been charged with failing to register as a sex offender. His attorney, Jaime Montgomery, said Bailey doesn't have further options for appeal. ..Source.. by Marty Hobe

Lawyers Lawyers Lawyers and then the ACLU

National and State:

We are often asked if we know of a lawyer to help in a case. Well here is what we have developed and we think this will give folks the best chance to find one that can help with their case.

Our lawyer lists are broken up as follows:

State and National

Civil Commitment

ACLU Chapters and Affiliates

Now, if you know of a lawyer that should be shown, please let us know and we will review and place it on the appropriate list. Simply e-mail eAdvocate@Gmail.com

And if you know how we can improve this site, we would like to hear from you too.

Thanks
eAdvocate

Metadata Is Fair Game to Track Child Pornography

2-4-2014 Texas:

The FBI lawfully seized hidden iPhone photo data to locate a man accused of uploading child pornography, a federal judge ruled.

The U.S. government charged Donald John Post Sr. with sexual exploitation of children and distribution and possession of child pornography in August 2013. Because of Post's status as a registered sex offender, he also faces penalties for committing a felony offense involving a minor.

In a six-page complaint made public upon Post's arrest, Special Agent Richard Rennison described the investigation that led the FBI to the sex offender's door.

Rennsion said a sexually explicit photo taken with an iPhone 4 was posted on a website "primarily dedicated to the advertisement and distribution of child pornography and the discussion of matters pertinent to incest and pedophilia."

In the explicit photo, its young subject is sleeping on a leather couch.

According to Rennison's affidavit, the FBI investigators were able to glean embedded information, or metadata, from the image, including the make of the photographic device and the GPS coordinates where the photo was taken.

Law-enforcement officials first stopped at the home of Post's neighbors who, as it turned out, did not have a similar leather couch or an iPhone 4, the affidavit states.

Realizing that the GPS coordinates could be off, Rennison said investigators took a closer look at other residents in the area. Their search turned up Post's conviction for aggravated sexual assault of a child.

Post ultimately let Rennison and a fellow task force officer enter his house where they found a similar couch, the affidavit states. Post later admitted to taking the picture, and several others, of a 4-year-old girl in his home.

The sex offender argued in court that the FBI violated his Fourth Amendment right to be free from unreasonable searches and seizures when it obtained the hidden data.

U.S. District Judge Gregg Costa nevertheless declined last week to suppress the evidence.

"Post's attempt to carve out the metadata from his public release of the image finds no support in the text of the Fourth Amendment or the case law applying it," the 10-page order states

Judge Costa found that Post "gave up his right to privacy in that image once he uploaded it to the Internet, and that thing he publicly disclosed contained the GPS coordinates that led agents to his home."

"There is no basis for divvying up the image Post uploaded into portions that are now public and portions in which he retains a privacy interest," Costa concluded. ..Source.. by BONNIE BARRON

Nevada Supreme Court orders delay in enforcement of sex offender registration law

See 5-2-2014 UPDATE: Officials push to amend Nevada’s controversial sex offender law

2-3-2014 Nevada:

A new legal challenge has delayed the start of stricter registration requirements for sex offenders in Nevada.

The law, modeled after the federal Adam Walsh Act, would require many offenders who judges have said are not dangerous — including some who were as young as 14 at the time they committed a sex crime — to make their names, photos and addresses available to the public. Since Nevada lawmakers approved the law in 2007, pieces of it have gone before courts from the district to federal levels.

It was set to go into effect Feb. 1, but the Nevada Supreme Court put a temporary stop to it Thursday following a lawsuit filed by Las Vegas firm Langford McLetchie on behalf of 24 unnamed clients. The lawyers filed suit Jan. 16 in Clark County District Court to stop enforcement of the law, but on Jan. 28 Judge Douglas Smith rejected their request. So they went to the state’s high court.

Supreme Court justices said the lawyers raised more questions that deserve a second look. Among them: Is it constitutional for sex offenders who have already served their court-ordered time to have the rules changed at this point? And did Nevada legislators overlook public safety voting in this law?

The law applies to anyone convicted of a felony sex crime or crimes involving children since 1956. About 3,000 are on Nevada’s sex offender rolls now, and the Walsh Act is expected to dramatically increase that number. There’s no state estimate on how many more names could be added, or how much tracking them will cost.

Maggie McLetchie, one of the lawyers for the plaintiffs, said Nevada’s version of the Walsh Act “is a mess.”

“Nobody really knows what to do with it,” she said. “We don’t have the resources to enforce it.”

Legislative records show state lawmakers signed off on the federal standards because they were worried Nevada might lose grant money for law enforcement. But they never discussed how much was at stake.

A 2008 report from the Justice Policy Institute, a Washington think tank, said it would cost more than $4 million to enforce the toughened registration requirements. The penalty for not doing that: the federal government could withhold about $180,000.

The latest suit to stop the Walsh Act in Nevada is against the agencies responsible for enforcing it, including the state attorney general and Division of Public Safety, the Clark County district attorney, the Metropolitan Police Department and the Henderson Police Department.

A spokeswoman for Nevada Attorney General Catherine Cortez Masto’s office pointed to previous court rulings, including one from the 9th U.S. Circuit Court of Appeals in San Francisco that upheld Nevada’s law requiring sex offenders to be retroactively classified according to their crimes, not by their risk of re-offending.

“The Nevada Supreme Court entered a stay of enforcement so they have an opportunity to review this law and determine whether it should be implemented,” spokeswoman Jennifer Lopez said.

Under Nevada’s existing system, judges help determine whether sex offenders present a risk to the public or have been rehabilitated – particularly juvenile offenders.

The Walsh Act’s requirements can’t be changed. Beyond having their names listed on searchable websites, offenders must check in with police or probation officers more often and must register for 15 years, 25 years or for life, depending on the crime. They also cannot knowingly be within 1,000 feet of a place designated primarily for children. That won’t apply retroactively to the new class of offenders who already live near sites such as schools, but it will come into play if they move.

Opponents of the Walsh Act say it endangers those who appear on state websites and also puts their families at risk. It can also make it more difficult for offenders to find jobs.

In October, the Nevada Supreme Court upheld the law as constitutional, but justices questioned whether lawmakers gave any thought to its effects on juveniles and public safety. ..Source.. by Adam Kealoha