Gonzalez v State

11-24-2014 Indiana:

Gonzalez v State

On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation1 based on his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three years, with eighteen months incarcerated and eighteen months on probation.

On September 15, 1999, Gonzalez was discharged from probation and began registering as a sex offender, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). See Ind.Code § 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).

Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the details of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement.

On January 27, 2011, Gonzalez, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22." (App. at 34.) The trial court denied the petition on July 22.

... ... ...

The requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. See Ind.Code § 11-8-8-19(c) (assigning lifetime registration requirement to person over eighteen years old who committed offense on victim under twelve). Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his lifetime registration requirement.

Additionally, unlike both Flanders and Jensen, whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind.Code § 11-8-8-19(c), which does not classify him as an SVP or provide a mechanism by which he could petition the court for removal of that requirement.4

Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.

We therefore must reverse the denial of Gonzalez's petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.

Reversed and remanded.

Johnson v Indiana

11-24-2014 Indiana:

Johnson -v- Indiana

Michael E. Johnson (“Johnson”) was convicted of Failure to Register as a Sex Offender, as a Class C felony. He now appeals, contending that the State failed to adduce sufficient evidence to support his conviction; the State concedes a failure of proof as to Johnson’s duty to register.

Facts and Procedural History
On November 17, 1994, when he was eighteen years old, Johnson was convicted of Rape, as a Class B felony, for an offense he committed while he was seventeen years old.

On January 6, 2012, while investigating other matters, police attempted to make contact with Johnson at several addresses in Indianapolis. Among these was an address he had provided on a registration form in 2011. Police officers visited this location, but Johnson did not reside at that address. The occupant of the home did not know Johnson and was unable to provide police with any information as to Johnson’s whereabouts.

Police eventually located Johnson at another location. Johnson was arrested.

On January 10, 2012, Johnson was charged with two counts of Failure to Register as a Sex Offender, as Class D felonies enhanced to Class C felonies as a result of prior convictions, and with one count of Failure of a Sex or Violent Offender to Possess Identification, as a Class A misdemeanor.

...

Conclusion:

Accordingly, as Johnson’s brief notes, his age at the time he committed Rape is dispositive. Based upon the evidence submitted at trial, Johnson was not under any duty to register as a sex offender, and we accordingly reverse the judgment of the trial court and remand with instructions to vacate Johnson’s conviction in this matter.

Reversed and remanded.

COURT: Sex offender doesn't have to register

9-22-2014 Indiana:

Paille -v- Indiana

MUNCIE – A Muncie man convicted of sex crimes in Florida does not have to register locally as a sex offender, the Indiana Court of Appeals has ruled.

In a 3-0 ruling, the appeals court also ordered local authorities to dismiss two criminal charges pending against 44-year-old Michael Troy Paille that stemmed from his failure to register with the Delaware County Sheriff's Office.

In this month's decision, Judge Cale Bradford acknowledged that when Paille most recently was released from a Florida prison, in 2011, he was "required to register in Florida as a sex offender for at least 25 years."

However, because Paille's Florida crimes and convictions predated the 1994 enactment of Indiana's Sex Offender Registry Act, he is not required to register here, Bradford wrote. He noted a 2009 ruling by the Indiana Supreme Court that "the application of INSORA to crimes committed before INSORA's 1994 enactment was unconstitutional."

Order requiring man to participate in sex offender program not unconstitutional

6-19-2014 Indiana:

The Indiana Court of Appeals has found (Patrick v Butts) that the order requiring a man to participate in the Sex Offender Management and Monitoring program does not violate Indiana’s prohibition of ex post facto laws.

George Patrick, convicted of two counts of Class B felony rape and two counts of Class C felony criminal confinement in 1991, was released on parole in 2007. But it was later revoked, and that’s when he filed his petition for writ of state habeas corpus relief, asserting his parole was revoked due to his “involuntary termination [sic] SOMM participation as a result of his special sex offender stipulations as a condition of his parole.”

“The Parole Board is allowed to impose conditions that are ‘reasonably related to the parolee’s successful reintegration into the community,’ Ind. Code § 11-13-3-4-(b), and that subsection was in place when Patrick was convicted. Our Supreme Court has found that the SOMM program ‘is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control,’” Judge Melissa May wrote in George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board, 33A04-1311-MI-577.

“As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.” ..Source.. by Jennifer Nelson

Bleeke v State

4-11-2014 Indiana:

Bleeke v State (Supreme ct)

Bleeke v State (Court of Appeals)

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.

... ... ...

Conditions 4, 5, 17, 19, and 20, which we have laid out above, are all broadly aimed at restricting Bleeke from being near, communicating with, or associating with, children (and, until the injunction became permanent, from being near, communicating with, or associating with, his own children). Bleeke argues that there is no evidence whatsoever that he poses a risk to any minor, and that these conditions therefore are not reasonably related to his successful reintegration into the community.

We agree with Bleeke. None of the evidence presented at his individualized hearing or designated before the trial court in support of—or in opposition to—his motion for summary judgment indicates that Bleeke is, was, or will be a threat to children—either his own or otherwise. In fact, the evidence uncontrovertibly shows the opposite: that Bleeke is affirmatively not a threat to children, nor is he likely to be. The Parole Board’s only evidence to the contrary apparently consisted of a general study of cross-over offenders. But we note, as the Court of Appeals did, that the study itself was not made part of the record on appeal. Bleeke, 982 N.E.2d at 1049. This makes it impossible to assess whether the study raises a genuine issue of material fact as to the likelihood of Bleeke himself crossing over from an adult victim to a child victim.

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Parole Stipulation form 49108 ...

State v IT

3-12-2014 Indiana:

State v I.T.

I.T., who admitted to conduct that would be a Class B felony child molesting if committed by an adult, was ordered by the trial court to undergo therapeutic polygraph examinations. During one of those exams, I.T. admitted to molesting two other children.

Based on those statements, the State filed a new delinquency petition. I.T. moved to dismiss the petition, arguing that the Juvenile Mental Health Statute, which bars a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency, barred the State’s evidence.

The trial court granted the motion. The State appealed.

The Supreme Court affirmed, holding (1) the State may appeal a juvenile court order that suppresses evidence if doing so terminates the proceeding; and (2) the Statute’s limited immunity prohibits both use and derivative use of a juvenile’s statements to prove delinquency.

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.

Brown v City of Michigan City, Indiana

9-5-2006 Indiana:

Brown v City of Michigan City, Indiana ...
462 F.3d 720 (2006)

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana ("City"); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment.

On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

... ... ...

Mr. Brown responds that, because Michigan City has not chosen to ban all child molesters from its parks, only Mr. Brown, its actions are "fundamentally irrational." Appellant's Br. at 34. But the City's means need not be "narrowly tailored" to its goals; rather, they need only be "reasonably related to [those] goal[s]." City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir.1999). Unlike other persons previously convicted of child molestation, Mr. Brown was witnessed repeatedly in Washington Park watching patrons through binoculars; there is no indication that park officials had seen other sex offenders on City property, engaged in activity similar to Mr. Brown's. Further, as we concluded in Doe, "[t]here is certainly nothing in the record to suggest the City would act differently when faced with a similar case." Doe, 377 F.3d at 773 n. 14.[9]

Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the district court.

AFFIRMED

Doe v City of Lafayette, Indiana

Multiple Dates - Indiana:

Doe v City of Lafayette, Indiana
7-30-2004 377 F.3d 757 (2004)

In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the City's Jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court.

... ... ...

Doe's actions do not come close to criminal conduct punishable as stalking. He did not "continually" or "repeatedly" go to the public park; his ban order was based on a single visit. See Landis v. State, 704 N.E.2d 113, 113 (Ind.1998) (holding that "the crime of stalking by its nature necessitates proof of repeated or continuing acts"). Nor did Doe's gaze or proximity cause any specific person to feel 784*784 frightened or threatened; indeed, there is no evidence that anyone even noticed Doe's presence. Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir.2001) ("The stalking victim who doesn't know that she is being stalked is not in fear of being injured."). Most importantly, Doe's conduct — going to a public park with improper thoughts about children previously unknown to him — did not harm any of the youths in the park, unlike the terror caused by actions criminalized as stalking.[10]

III. CONCLUSION

In the City's haste to take action to protect its children, an admirable goal, both the majority and the City fail to apprehend the possible secondary effects of this ban on the very safety it seeks to ensure. As a society grappling with the problem of pedophilia, see Crane, 534 U.S. at 414, 122 S.Ct. 867 (requiring some lack-of-control determination in the civil commitment of convicted pedophile), we have limited resources in our arsenal to address the possibility that someone like Doe may reoffend. Once released back into our society, a former sex offender must feel free to seek therapy and must be supported in his efforts to control his urges rather than penalized. Why deter former sex offenders from one of the few treatments available? The importance of therapy cannot be understated. See 51 Am.Jur.3d § 5 ("the group (led by the therapist) works on each member's issues, such as denial, guilt, the offender's own sexual trauma, or lack of empathy for the victim. This is a common technique for outpatient treatment of sex offenders (often a condition of probation)..."). The First Amendment's concern with freedom of thought as a basis for the freedom of expression is highlighted by the facts of this case. The chilling effect of this ruling, i.e., that the communication of one's thoughts may result in being banned from public spaces, is frightening. See Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.2004) ("The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights."). To oversimplify the issue, as one of location or logistics (i.e., the argument that Doe can simply think elsewhere) fails to address the problem of chilled speech, or here thought, that the First Amendment seeks to secure.

One cannot be a thinking member of society and not be acutely aware of the critical problem of sex offenses against children. The substance of Doe's sexual fantasies about children are repugnant and deplorable. Doe himself admits that. But, of course, the fact that this court or the City of Lafayette finds Doe's thoughts offensive does not limit the amount of First Amendment protection they are afforded. See Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389 ("It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities."); Am. Booksellers Assoc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) ("Under the First Amendment the government must leave to the people the 785*785 evaluation of ideas."); Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.1978) (noting that the First Amendment covers protected speech even though it may be "repugnant to the core values held generally by residents of this country"). Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.[11]

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Doe v City of Lafayette, Indiana
6-27-2003 334 F.3d 606 (2003)

John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.

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Doe v City of Lafayette, Indiana
9-14-2001 160 F.Supp.2d 996 (2001)

The material facts in this case are not in dispute. John Doe has a long history of criminal behavior regarding children. He has numerous arrests and convictions ranging from child molestation to various misdemeanors including: voyeurism; exhibitionism and window peeping. (Dep. Doe at p. 11-16, 20-22). Doe's last conviction was in 1991 for attempted child molesting. (Dep. Doe at p. 17). His sentence included four years of house arrest and four years of probation in Lafayette. During his probation and house arrest he was not restricted from entering the Lafayette city parks. (Aff. Doe at ¶ 3). Doe has received various types of out-patient treatment for sex-addiction since the time of his arrest. (Dep. Doe at p. 31).

Doe has also received treatment for his addiction from Dr. Patricia Moisan-Thomas, Ph.D., an addictions counselor, as well as attending a sex offenders anonymous group. (Dep. Doe at p. 27, 31-32). Doe has not engaged in any incidents of molesting, voyeurism, exhibitionism since 1991. (Aff. Doe at ¶ 2). Dr. Moisan-Thomas has opined that Doe will always have inappropriate thoughts about sex. (Aff. Moisan-Thomas at ¶ 9). Doe admits to having inappropriate thoughts which he finds to be extremely unpleasant and has resumed taking drugs to alleviate his sexual urges. (Dep. Doe at p. 26-27). Dr. Moisan-Thomas has opined that there is no guarantee that Doe will never reoffend, however she feels that he is in control of his urges even without his medication. (Dep. Moisan-Thomas at 26-27, 33-35).

Sometime in January 2000, Doe began having inappropriate sexual thoughts about children. He then walked to Murdock Park where he saw a number of youths in their early teens and watched them from a distance for about 30 minutes. (Dep. of Doe at 23-28). Doe had fantasies 998*998 about exposing himself or having some sort of sexual contacts with the youth. (Id. at 29). According to Doe, he recognized that these thoughts were inappropriate and then left the park. (Id. at 29).

Doe became extremely upset about the incident. He then reported the occurrence to Dr. Moisan-Thomas and his sex offenders group. (Aff. Moisan-Thomas at ¶ 6; Aff. Doe at ¶ 4). As a result of an anonymous source, Doe's former probation officer was informed that he was sitting in the park and watching children. (Reed at 8). The probation officer contacted the Lafayette Police Department and reported the incident. Subsequently, a discussion was held between Lafayette Police Chief Reed, Superintendent Mayes and the city attorney on the appropriate course of action. (Reed at 11-12). Based upon that meeting, the Park's Department issued an order to Mr. Doe which stated the following:

Due to reports of your improper behavior toward juveniles using city park property, you are hereby notified that you are not allowed to enter any city park property, including Columbian Park at any time for any purpose. If you are observed on park property, you will be arrested for trespass. (Reed at 10-13, Ex. 3)

The city of Lafayette has several large parks within its territorial limits. (Dep. Mayes at 3-9). The parks provide activities such as softball, swimming and numerous other activities. (Id at 5-6). The various parks are patrolled by a security force connected to the Parks and Recreation Department as well as by the Lafayette Police Department. (Dep. Reed at p. 14). The Superintendent of the Parks and Recreation Department has delegated to the head of security the authority to ban individuals from the City's parks. (Mayes at 21). The Superintendent admits that there are no documents or written procedures for banning individuals from the parks.[1]

Ban orders are typically issued in instances where teenagers or young adults have destroyed property or interfered with other park patrons. (Mayes at 17-18). The ban order is issued and the individual is then informed that if he or she returns to the park during the time that the order is in effect he or she will be arrested for trespass. (Id. at 20). Typically, ban orders are issued for a week or a summer in duration. (Id. at 19). In this instance, Doe was issued a permanent ban order from all city parks. (Reed at p. 10-13, Ex. 3).

Doe seeks a lifting of the ban order in order to partake in a softball league which he participated in before the ban order, attend events at Loeb Stadium in Columbian Park, and attend outings in the park if they should arise. Furthermore, he contends that the ban prevents him from walking in the park with his adult friends. (Id.).

... ... ...

Here it is undeniable that the city has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. See Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) It is indisputable that state governments have important interests in seeking to secure the safety of their minor citizens. Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1489 (6th Cir.1995). The ban order as previously stated is narrowly tailored to the specific facts and circumstances involving Doe and therefore advances the legitimate goals of the city. See Thompson 250 F.3d at 407. Therefore the court finds that the ban order does not violate his substantive due process rights.

III. CONCLUSION
For the foregoing reasons the City of Lafayette's motion for summary judgment is now GRANTED. Each party to bear its own costs. IT IS SO ORDERED.

Sex offender ID law misapplied, higher court says

7-9-2009 Indiana:

Harris v Indiana
No. 79A04-0809-CR-546

Enhancements to Indiana's Sex and Violent Offender Registry that took effect on July 1, 2006, are continuing to cause snarls for law enforcement.

The Indiana Court of Appeals on Thursday reversed two convictions against a Lafayette man who assumed a dead man's identity -- allegedly to avoid being listed on the state's sex offender registry.

David M. Harris, 55, was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial in July 2008 in Tippecanoe Circuit Court.

He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect three years ago.

Indiana's higher court, however, dismissed the application fraud conviction on grounds that the prosecutor's office could not prove that Harris applied in Tippecanoe County for a driver's license under the name Richard Blair.

Thursday's unanimous ruling also found that Harris does not have to carry government-issued identification because his two convictions for child molesting took place before July 1, 2006.

Sheriff's Detective Greg Haltom, who maintains Tippecanoe County's sex offender registry, said the justices' finding is contrary to how he'd been enforcing the ID card statute.

"The way I interpreted the law was that, if you're a registered sex offender, you need an Indiana identification card," Haltom said. "There is a lot of litigation out there right now regarding all those changes."

Harris is listed on the state's registry as a sexual predator, meaning he is required to provide his address and other contact information to law enforcement for life.

Charges against Harris were filed in May 2007 after an acquaintance contacted police about Harris' true identity. Haltom said Harris reportedly called around to several states and eventually was able to obtain a birth certificate for a Richard Blair in Michigan.

Harris did not know Blair.

He allegedly used the birth certificate to obtain an Indiana driver's license, a Social Security card and a community college identification card in Blair's name.

The Indiana Court of Appeals on Thursday also ordered that Harris be resentenced in Tippecanoe Circuit Court for the remaining convictions against him.

He currently is serving a 291/2-year prison sentence.

Sheriff Tracy Brown said it's not uncommon to hear of different interpretations of the state's sex offender statutes. During an Indiana Sheriff's Association meeting Thursday, he said one person brought up that it could greatly vary in all 92 counties.

"The General Assembly had the right intent with the legislation, which is to protect children," Brown said. "But clearly there is enough confusion that law enforcement and legislators need to work at a committee level to sit down, review and tighten these laws." ..Source.. by SOPHIA VORAVONG

Becker v State

8-22-2013 Indiana:

Becker v State

Criminal cases are prosecuted in the name of the “State of Indiana.” But as Shakespeare famously asked, “What’s in a name? that which we call a rose / By any other name would smell as sweet.” Gertrude Stein’s answer was that “Rose is a rose is a rose is a rose.”

Similarly, we conclude that in this matter related to the sex offender registry, “the State is the State,” whether it acts through a deputy prosecutor or through the Department of Correction. Both entities share the same substantial interest—to maximize an offender’s registration obligations—and are therefore in privity with each other in cases involving that interest.

Accordingly, we hold that when the State (via a local prosecutor) fails to appeal an adverse sex-offender registration ruling, the State (via the DOC) becomes bound by it under principles of res judicata.

The DOC’s 2011 intervention in this case therefore came too late. On its face, the DOC’s motion challenged a trial court ruling issued a few weeks earlier—but in substance, it sought reconsideration of an unappealed 2008 ruling that had long since become binding against the State.

We thus reverse the trial court’s order granting the DOC’s Motion to Correct Error.

---

Defendant was convicted of felony criminal deviate conduct in 1998, was released from prison in 2000, and began registering annually as a sex offender. Indiana later expanded its registration requirements. Defendant petitioned for relief from the additional SVP obligations, arguing that they were an unconstitutional ex post facto law as applied to him. The trial court concluded in 2008 that retroactively classifying Defendant as an SVP under the expanded statutes would be unconstitutional.

The State did not appeal the 2008 order, nor did the Department of Corrections (DOC) intervene to challenge it. In 2011, the State found Defendant had satisfied his registration obligations under the ten-year statute that existed at the time of his conviction. The DOC later filed a motion to correct error, arguing that Defendant's registration obligation from ten years to life was not an ex post facto violation.

The trial court granted the motion and vacated the 2008 order. Defendant appealed, arguing that the 2008 order was res judicata against the DOC. The Supreme Court reversed, holding that even if the 2008 order was erroneous, it nevertheless became res judicata against the "State" - both the prosecutor and the DOC - when the State failed to appeal it.

Indiana v Tutterrow

5-23-2013 Indiana:

Indiana v Tutterrow

This cause is called for hearing on Def. Motion to Dismiss the pending information as to two (2) counts of Unlawful Employment near Children.

... ... ...

And the court having considered Def. Motion to tDismiss and the arguments of counsel finds that I.C. 35-42-4-10(c) is unconstitutional as applied to this Def as it violates the prohibition against ex post facto laws of the Indiana and United States Constitutions. The court further finds that I.C. 35-42-4-10 is void for vaugness as applied to the Def. in this cause. Accordingly, the court finds that this cause must be dismissed.

... ... ...

IT IS THERFORE ORDERED, ADJUDGED, AND DECREED that the pending information of two (2) counts of Unlawful Employment near Children, I.C. 35-42-4-10, felonies, be and hereby dismissed on the basis that the statute as applied to this Def. violates the prohibition against ex post facto laws of the Indiana and United States Constitutions and that it is Void for Vagueness.

---

The state will not be able to refile any charges against Tutterrow in the case as a result of the dismissal. Since Tutterrow's appearance at Hagerstown Elementary, Nettle Creek Schools and Richmond Community Schools have adopted policies restricting access to school property by registered sex offenders except in specific instances.

NL v Indiana

7-1-2013 Indiana:

NL v Indiana

Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration’s serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court’s order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand.

... ... ...

Conclusion.

It is well within a trial court’s discretion to hold more than one hearing to determine whether a juvenile’s risk of reoffending warrants placing them on the sex offender registry. But when it does so, every hearing held for that purpose must be an “evidentiary hearing” as J.C.C. requires. That is, juveniles must have the opportunity to challenge the State’s evidence and present evidence of their own; and if an “evidentiary hearing” is continued, they must have continued representation by counsel at the subsequent hearings as well. Finally, the child may not be ordered to register unless the trial court expressly finds, by clear and convincing evidence, that the child is likely to commit another sex offense — based exclusively on evidence received at such a hearing. Here, the May hearing was not an “evidentiary hearing” as J.C.C. requires; N.L. did not have the benefit of counsel in May, even though he did for the February hearing; and the trial court made no findings about N.L.’s likelihood to reoffend.

We therefore reverse the order requiring N.L. to register as a sex offender, and remand to the trial court with instructions to conduct a new “evidentiary hearing” as J.C.C. requires to determine whether N.L. is likely to commit another sex offense, and thereafter to make an express finding of whether the State has made that showing by clear and convincing evidence.

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Indiana Supreme Court Sets Standards for Adding Minor to Sex Offender Registry

The Indiana Supreme Court clarifies the process juvenile court judges must follow before a child who commits a sex crime can be added to the state's registry.

In a 5-0 decision, the state's high court says before a minor can be added to the sex offender registry, judges must hold a formal hearing to determine how likely a child is to re-offend.

Today's ruling over-turns a decision in which a teenage boy from Bedford, Indiana was added to the registry after allegedly molesting a 9-year-old boy. ..Source..

Blakemore v State

4-16-2010 Indiana:

Blakemore v State
925 NE 2d 759 - Ind

The trial court found Oscar Blakemore guilty of failure to register as a sex offender, a Class D felony,[1] even though there was no such registration requirement when he committed the underlying offense or when he was convicted of it. That retroactive application of the sex offender registry requirement violated the Indiana constitutional prohibition of ex post facto laws, and we accordingly must reverse.

... ... ...

For all these reasons, we reject the State's assertion that a defendant's agreement to "comply with the statutory requirements in registering" as a sex offender, (Ex. 1 at 7), subjects him to subsequent punishment under laws not in existence when he entered into the agreement. We accordingly reverse Blakemore's conviction of failure to register as a sex offender.

Reversed.

Judge dismisses charges against sex offender who served ice cream at elementary school

5-25-2013 Indiana:

The case against a registered sex offender who served ice cream to students during an informal birthday party at Hagerstown Elementary School has been dismissed.

Wayne County Superior Court II Judge Gregory A. Horn issued an order Thursday granting a motion to dismiss the case against Murvel A. Tutterrow, 51, of 12596 Indian Trail Road in Economy.

Tutterrow was faced with two counts of unlawful employment near children (a Class D felony) for serving ice cream on May 19 and May 23, 2011, during birthday parties for his niece and nephew at Hagerstown Elementary School.

Attorney E. Thomas Kemp filed a motion to dismiss the case in April, and Horn granted the dismissal with a 14-page order explaining the law as it relates to Tutterrow’s case.

Tutterrow was convicted in February 2000 of molesting a 13-year-old girl in June and July 1996 and sentenced to 10 years in prison with four suspended. He was released from the Indiana Department of Corrections on Dec. 29, 2002.

Under state law, “a sexually violent predator or an offender against children who knowingly or intentionally works for compensation or as a volunteer on school property, at a youth program center or at a public park” can be charged with unlawful employment near children.

Horn noted the statutes defining “sexually violent predator” and “offender against children” under state law did not exist until 2006, after Tutterrow had been convicted and served his time in prison and on probation.

The Indiana Constitution prohibits ex post facto laws, which impose a punishment that wasn’t available at the time an offender originally committed a crime or that impose an additional punishment.

Courts use a seven-part test to determine if an ex post facto claim is valid. Horn ruled the charges against Tutterrow violated six of those seven parts and therefore qualified for a dismissal.

Horn also noted he believed the case warranted a dismissal because Indiana law fails to define what a volunteer is when it comes to the unlawful employment near children statute.

The state will not be able to refile any charges against Tutterrow in the case as a result of the dismissal.

Since Tutterrow's appearance at Hagerstown Elementary, Nettle Creek Schools and Richmond Community Schools have adopted policies restricting access to school property by registered sex offenders except in specific instances. ..Source.. by Robert Sullivan

Gibbs v Indiana

12-31-2008 Indiana:

Gibbs v Indiana
898 N.E.2d 1240 (2008)

As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors.

We hold that pursuant to Aplin v. State,889 N.E.2d 882 (Ind.Ct.App.2008), reh'g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions.

Finding no error in Gibbs' other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is inappropriate, we affirm in part and reverse in part.

... ... ...

As to his character, Gibbs notes he has no criminal record. He served in the Navy, has been regularly employed, and has supported a family. He completed the Basic Seminar of the Institute in Basic Life Principles.11 At the sentencing hearing, Gibbs stated he "made a bad judgment" and has "changed different ways in my life," which includes attending church and giving to charity. Tr. p. 534. His mother testified he helps her by taking her to the grocery store and doctor appointments and by buying her medications when she cannot afford them.

The trial court did not give great weight to Gibbs' remorse because it could not determine whether Gibbs was "sorry because you're really sorry over what you did or ... because you've been doing what you've wanted to do on the computer and you happen to get caught and now everyone knows?" Id. at 551. The trial court acknowledged Gibbs' lack of criminal history was a significant mitigating circumstance. For the child solicitation conviction, the trial court sentenced Gibbs to the advisory term of four years and suspended two years. We believe this sentence appropriately, takes into account Gibbs' lack of criminal history and his demonstrated potential to engage in predatory behavior, and we therefore affirm it.

Affirmed in part, reversed in part.

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Rulings target Internet sex stings

1-4-2009 Indiana:

Appeals court says there must be an actual victim

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.

The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. That leaves in place a third related conviction.

The reversal could mean new cases lead to lighter sentences. The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.

The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' onviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.

Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."

Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.

"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."

Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case.

"We are always looking to protect children, " Massillamany said.

Now prosecutors must rely on charges of child solicitation, a Class C felony charge that applies under Indiana law as long as the defendant merely believes the intended victim is at least 14 and younger than 16.

The Class C felony carries a potential sentence of two to eight years in prison, far short of the maximum 20-year penalty for attempted sexual misconduct.

Hamilton County Prosecutor Sonia Leerkamp said she may lobby the General Assembly to broaden the sexual misconduct statute along the same lines as child solicitation. Until then, she said, her office will review how it charges online sting cases to conform to the rulings.

Leerkamp had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.

But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.

Prosecutors argue that online stings protect teenagers by snaring likely perpetrators, though judges often give reduced sentences or even probation -- as Aplin received -- because there are no actual victims.

No such luck for Gibbs, a Navy veteran with a clean record who expressed regret for bad judgment after a jury convicted him. Marion Superior Court Judge Sheila A. Carlisle gave him seven years in prison, including two years for child solicitation, with the possibility of spending the last four years in community corrections programs.

"I have serious concerns," Carlisle told him in October 2007, "about your ability to refrain from this conduct in the future." ..Source.. by Jon Murray

Buss v Harris

5-17-2010 Indiana:

Buss v Harris
No. 52A02-0911-CV-1088.

Edwin G. Buss ("Buss"), Commissioner of the Indiana Department of Correction ("the DOC"), appeals from the trial court's order in an action for declaratory and injunctive relief brought by Michael L. Harris ("Harris"), a former inmate at the Miami Correctional Facility in Miami County, Indiana, requiring the DOC to update the sex offender registry to remove the term "SEX PREDATOR" and the statement "Lifetime Notification" from Harris's offender detail and type on the Indiana Sheriffs' Sex and Violent Offender Registry web site, and determining that Harris's reporting obligation should be for ten years following the date of his release from incarceration.

Buss raises the following consolidated and restated issue for our review: Whether the trial court erred by finding and concluding that Harris should not be listed on the sex offender registry as a sexually violent predator and that Harris's reporting obligation was limited to ten years following the date of his release from incarceration.

We affirm.

... ... ...

If we were to adopt the State's construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments to SORA. Nothing before us indicates that the legislature intended such a result.

The State argues that Buss and the DOC were not making the determination that Harris was a sexually violent predator with a lifelong reporting obligation, but were merely notifying Harris of his status and post-release reporting obligations. The State also notes that Indiana Code section 35-38-1-7.5(f)(2) requires the trial court to send notice to the DOC if a person is a sexually violent predator and uses that language to support its contention that it is not claiming authority to make the status and reporting determinations. Yet, the State does not offer a citation to the record establishing that Buss and the DOC received notification from the trial court indicating a change to Harris's status, thus triggering their duty to notify Harris.

We hold that the trial court did not err by finding and concluding that the DOC and Buss were not authorized by statute to make a determination of and change to Harris's status on the sex offender registry. We also reject the State's argument that Harris's status was changed by operation of law under Indiana Code section 35-38-1-7.5(b) and note that the Supreme Court's decision in Jones supports our conclusion. We also hold that the trial court correctly determined that Harris's reporting obligation was for ten years and not a lifelong reporting obligation, as the change to the duration of Harris's reporting obligation would have occurred only by a finding and conclusion that his status had changed. Again, Jones is helpful in reaching that conclusion.

Affirmed.

US v Dixon

12-22-2008 Indiana:

US v Dixon
551 F.3d 578 (2008)

Our post and tags, is ONLY about Dixon case, Carr went on and appealed this court's decision and won in the US Supreme court.

The court said:
We have consolidated for decision the appeals in two cases that raise overlapping issues, primarily under the ex post facto clause of Article I, section 9, of the Constitution.

Both defendants were convicted—Dixon after a bench trial on stipulated facts, Carr after conditionally pleading guilty—of violating the Sex Offender Registration and Notification Act (part of the Adam Walsh Child Protection and Safety Act of 2006), 18 U.S.C. § 2250. The Act, which went into effect on July 27, 2006, imposes criminal penalties on anyone who, being required by the Act to register, being a convicted sex offender under either federal or state law, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he can prove that "uncontrollable circumstances" prevented him from doing so. 18 U.S.C. §§ 2250(a), (b)(1).

Congress instructed the Attorney General to "specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction" and to "prescribe rules for the registration of any such sex offenders. . . who are unable to comply with" the requirement, also imposed by the Act, of registering before they are released from prison or, if they do not receive a prison sentence, within three days after being sentenced, and furthermore of re-registering within three days after a change of name, residence, employer, or student status. 42 U.S.C. §§ 16913(b), (c), (d).

We should never forget that, although the AG prescribed a rule to make SORNA retroactive, the AG NEVER prescribed any rules to notify those previously convicted or how they should proceed to register. Courts have continually ignored this fact.

The Attorney General issued an interim regulation on February 28, 2007, that makes the Sex Offender Registration and Notification Act applicable to persons, such as Dixon and Carr, who were convicted of sex offenses before the Act was passed. 72 Fed.Reg. 8896, 28 C.F.R. § 72.3. They were convicted of violating the Act because they did not register in Indiana—to which they had come before the Act was passed—after the issuance of the regulation.

As the reference to "implementation in a particular jurisdiction" indicates, the sex offender is required only to register with the state in which he is a resident, employee, or student, as well as the jurisdiction of his conviction if different from his residence. 42 U.S.C. § 16913(a). Other provisions of the Act establish a system for pooling the information in the state registries to create in effect a national registry. See 42 U.S.C. §§ 16912, 16918-20, 16923-25. Indiana has yet to establish any procedures or protocols for the collection, maintenance, and dissemination of the detailed information required by the Act, and Dixon argues that therefore he could not comply. But recall that the Act requires the Attorney General to "specify the applicability of [its] requirements . . . to sex offenders convicted before . . . its implementation in a particular jurisdiction," which the Attorney General did in his regulation of February 28, 2007. So Dixon was required by the Act to register with Indiana.

.... .... ...

An alternative analysis, which brings us to the same point however, harks back to our earlier discussion of fair notice. Concern with due process gives rise to the question "how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law," and "the answer to this question is no different from that posed for any legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply." Texaco, Inc. v. Short, supra, 454 U.S. at 531-32, 102 S.Ct. 781; see Jones v. United States,121 F.3d 1327, 1328-30 (9th Cir.1997).

The close relation between the concern with providing that opportunity and the concern that animates the ex post facto clause was remarked by Justice Stevens in a concurring opinion in Hodel v. Irving,481 U.S. 704, 733 n. 18, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987): "A statute which denies the affected party a reasonable opportunity to avoid the consequences of noncompliance may work an injustice similar to that of invalid retroactive legislation." Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero. An analogy can be drawn to Bouie v. City of Columbia,378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), where the Supreme Court held that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law." Id. at 353, 84 S.Ct. 1697.

Carr's case, to which we now turn, is simpler than Dixon's. Although his interstate travel like Dixon's preceded the application of the Sex Offender Registration and Notification Act to him, and although he assumes (as Dixon argues) that the Act requires that the travel postdate that application, the only ground of his appeal is that his conviction violated the ex post facto clause. But he does not and cannot complain that he was not given enough time to register in Indiana in order to avoid violating the Act, because he admits that he had still failed to do so "on or about July, 2007," almost five months after the Attorney General's regulation was issued that made the statute applicable to him. Five months is a sufficient grace period.

Remember that on our interpretation of the statute as filled out by the regulation, the duty to register does not come into force on the day the Act becomes applicable to a person, or on the next day or next week, but within a reasonable time; and Carr had a reasonable time within which he could have registered. Had he done so, he could not have been convicted of violating the Act. Since his violation was not complete when the Act became applicable to him, his rights under the ex post facto clause were not violated.

The judgment in Dixon's case is reversed with directions to acquit; the judgment in Carr's case is affirmed.

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Sex offender challenges registry law

10-25-2008 Indiana:

A Michigan City man who is challenging the constitutionality of the federal sex offender registry brought his case to the 7th Circuit Court in Chicago on Friday.

The case is the first challenge to the federal sex offender registry in the 7th Circuit, which sets case law for most of the Midwest.

Marcus Dixon was convicted in the Northern District's South Bend court in 2007 for failing to register with state authorities after he was released from a South Carolina prison, removed his electronic ankle bracelet and moved to Indiana in 2006.

Dixon's attorney, Bryan Truitt, argued the U.S. Constitution does not give the federal government jurisidiction over the crime, and that stiffer sentences imposed by federal law in 2007, which elevated the crime to a felony, should not apply to Dixon because he crossed state lines before the law changed.

"This is an issue that is purely for the states to decided, and all states have had laws on the books addressing this for 20 years," Truitt said.

Judges Frank H. Easterbrook, Richard Posner and Ilana Rovner mostly questioned Truitt about issues related to the changes to the mandatory federal sentences, Truitt said.

Dixon was arrested at a Michigan City apartment complex in April 2007. Dixon was 16 in 2001 when he was convicted of "sexual penetration of a minor under 16 years of age," a 14-year-old, court records state.

He registered as a sex offender in South Carolina upon his release, but had been living in Michigan City for several months when he was arrested. ..News Source.. by Andy Grimm Post-Tribune staff writer

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

....

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

Sewell v State

This decision ends with absurd results. Effectively the court makes a specific address unconstitutional if certain persons live there. When an earlier court has exempted these certain persons from operation of the law. There is no public safety value in this decision, at best it is vindictive and stalks these persons in an effort to deny them their civil rights (see 42 sec 1983, 1985(3), 1982). ACLU where are you?

8-28-2012 Indiana:

Sewell v State
973 N.E.2d 96 (2012)

Anthony Mark Sewell ("Sewell") appeals his conviction of committing a sex offender residency offense1 as a Class D felony, contending that the evidence was insufficient to support his conviction and that the conviction violated the prohibition against ex post facto provisions in both the federal and state constitutions. We affirm.

FACTS AND PROCEDURAL HISTORY
Sewell was convicted of child molesting as a Class B felony in 2001. He was released from the Department of Correction in 2007 and placed on probation. Sewell, as an offender against children, was required to register his address with law enforcement. By July 2011, Sewell had registered seventeen times with the Shelby County Sheriff's Department ("SCSD"). Each time Sewell registered, the Shelby County Sex Offender Registry Clerk ("Registry worker") would check Sewell's address against a computerized map, which indicated the distance from that address to any known addresses of churches, schools, or other locations having youth program centers. Sewell was also given an information packet in which his registry obligations were discussed. The packet included the explanation that Sewell was not allowed to spend more than two nights within any thirty-day period in a residence that was within 1,000 feet of a youth program center. A Registry worker would orally explain the information to Sewell each time he registered. Sewell would then initial and sign the information packet in the presence of a Registry worker, who countersigned the form.

In June 2011, Sewell went to the SCSD registry and informed them that he intended to move to 42 West Brookville Road in Fountaintown. A Registry worker checked the address against the computerized map and informed Sewell that his proposed residential address was within 1,000 feet of a church. That church, the Community Church of Fountaintown, was within 1,000 feet of 42 West Brookville Road. The Registry worker explained to Sewell that he would violate the law if he lived within 1,000 feet of the church and if the church maintained a school, day-care, or youth program center. The Registry worker told Sewell that if he could obtain a statement from the church that it did not house those facilities or activities, he might be able to reside within 1,000 feet of the church's property. Sewell decided not to change his residential registration at that time.

On July 1, 2011, Sewell returned to the SCSD registry and attempted to register 42 West Brookville Road as his residential address. Sewell had a letter from Pastor Michael Smith of the church, which included the statement that the church did not have a day-care or school on the property. Because the letter made no mention of youth programs, the Registry worker called the church to inquire about the church's operations. In that telephone call, Pastor Smith verified that the church had a youth program for children younger than eighteen years of age on Sunday evenings from 5:00 p.m. until 7:00 p.m. Based upon that information, the Registry worker told Sewell that he could not live within 1,000 feet of the church without violating the law. Sewell disputed what the Registry worker said and produced a video-recording cell phone. The Registry worker repeated that Sewell could not live within 1,000 feet of the church without violating the law. Sewell then told the Registry worker that the rent at his present address was paid until July 3 or July 4, 2011 and that he would remain there until then.

On July 5, 2011, Sewell returned to the SCSD registry, this time with Pastor Smith. Sewell registered 42 Brookville Road as his new residential address. The Registry worker used a previous map printout to remind Sewell that the address was within 1,000 feet of a youth program center. Sewell explained that Pastor Smith came with him to clear everything up. The Registry worker replied, "Anthony it's not gonna matter if I speak with the minister or not, that address still violates the 1,000 feet" restriction. Tr. at 30. Pastor Smith went to speak to the Shelby County Sheriff. Pastor Smith recalled being confused about the reason why it was fine for Sewell, who had recently become a member of the church, to attend church services, but was prohibited from living within 1,000 feet of the church.

Pastor Smith returned to the registration desk after speaking with the sheriff. Sewell told the Registry worker that he would register the address as his temporary residence. The Registry worker informed Pastor Smith that registering the address as a temporary residence did not exempt the address from the 1,000 foot exclusion zone, and that Sewell's residence there would be a violation of the law. The Registry worker recalled telling Sewell that many other offenders who had tried the same or similar thing had been in violation of the 1,000 foot exclusion zone. Sewell registered the address as his residence nonetheless.

....

The prohibition against ex post facto laws applies only when a new law "`imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Id. at 1149 (quoting Weaver, 450 U.S. at 28, 101 S.Ct. 960). The fact that an element of a crime "`draws upon antecedent facts'" does not make Indiana Code section 35-42-4-11 an ex post facto law. United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001) (quoting Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922)). "The critical question in evaluating an ex post facto claim `is whether the law changes the legal consequences of acts completed before its effective date.'" United States v. Brady, 26 F.3d 282, 291 (2nd Cir.1994) (quoting Weaver, 450 U.S. at 31, 101 S.Ct. 960).
[ 973 N.E.2d 103 ]

In the present case, Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. Nor has he shown that he resided in property which only later fell within a protected zone due to the establishment of a school or youth program center. Here, the law punishes the decision by Sewell, an offender against children, to take up residence within 1,000 feet of an existing youth program center. We conclude that because Sewell's residency decision occurred after the enactment of the statute, Sewell's prosecution does not violate state or federal ex post facto provisions. Affirmed.