California transplant wins appeal in sex registry case

3-10-2012 New Mexico:

SANTA FE — Does a convicted sex offender in California have to register with the government if he moves to New Mexico?

The New Mexico Court of Appeals said one such man did not, setting the stage for another courtroom confrontation this month.

Bruce D. Hall, about to turn 65 years old, is the defendant in the middle of this storm over laws and protection of children. Hall is a marked man as a sex offender in California but, so far, not in New Mexico.

Court records show that Hall in 1999 was convicted in California of "annoying or molesting children," a misdemeanor. An assistant attorney general in New Mexico stated in a brief that Hall touched the genitals of three young boys.

Hall moved to Las Cruces, but did not register as a sex offender. This led to his indictment in 2008 for violating New Mexico's Sex Offender Registration and Notification Act.

Hall said that, despite his criminal record, he was not obligated to register as a sex offender. What he did in California was not a sex offense in New Mexico, he argued.

He said he could not be subjected to the registration law and asked that the charge against him be dismissed.

District Judge Douglas Driggers of Doña Ana County rejected Hall's motion. Hall entered a conditional guilty plea, but preserved his right to appeal.

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.

Leonard Swanagan

8-14-2012 Georgia:

In July 2008, sheriff’s deputies in Cobb County, Georgia arrested 54-year-old Leonard Swanagan on charges of failing to register as a convicted sex offender and living within 1,000 feet of a public swimming pool.

Swanagan contended that he was not required to register, but in July 2011, he was convicted in Cobb County Superior Court after the prosecution produced records showing he had been convicted of a misdemeanor sex offense in Ohio in 1994. The records also showed that when he moved to Illinois in 1996, he had registered as a sex offender there. Swanagan was sentenced to 10 years in prison, but all but a year was suspended.

In 2012, Swanagan reached out to the media, and Jeff Chirico, a reporter for CBS television news in Atlanta, began investigating the case. Chirico discovered that under existing sex offender registry laws, Swanagan’s name should have been removed from sex offender registry lists in 2004.

After the news report aired, the prosecution investigated the claim and determined that Swanagan was not required to register as a sex offender in Georgia. Swanagan obtained a new defense attorney who filed a motion to vacate the conviction and to dismiss the case.

On August 6, 2012, Swanagan was released from custody and on August 14, at the request of the defense and the prosecution, his conviction was vacated and the charges were dismissed.

In 2014, Swanagan filed a federal civil rights lawsuit in Atlanta. ..Source.. by Maurice Possley

ALERT: Is a Failure to Register charge a sex offense?

5-5-2012 Colorado:

Life never ceases to amaze me. Something I had heard about some time ago, I now have proof that this is true!

Only in Colorado, to my knowledge today, is a charge of "Failure to Register" considered a sex offense. Right a sex offense, don't believe me, click on the following pic and read the yellow portion.

This is page-11 of Laws Governing Sex Offenders in Colorado (11-2008), a file that describes all sex offenses and offender rules in Colorado.

Think of the ramifications of this, its mind boggling. There has to be someone with a sick sense of humor that pushed this through the legislature. I'm just blown away by this, are you?

If this is also true in other states, I'd love to know which ones. This will mess up recidivism figures BIG TIME!

State v William Dinkins Sr

The essence of this case is, a person cannot be released from prison unless they have an residence (address), but finding one when in-prison is impossible. The state's position is absurd, the inmate needs to be released to find a residence..

3-12-2012 Wisconsin:

State v. William Dinkins, Sr. (Supreme court)

1 The State seeks review of a published decision of the court of appeals that reversed a judgment and order of the circuit court finding William Dinkins, Sr. guilty of knowingly failing to comply with the sex offender registration statute.[1] That statute required Dinkins to provide the Department of Corrections (DOC) with "the address at which [he] . . . will be residing" at least ten days prior to his release from prison.[2] The circuit court found that Dinkins attempted to comply with the registration requirements but was unable to find housing for himself prior to his release. Nevertheless, relying on the testimony adduced at the preliminary hearing, the circuit court adjudged Dinkins guilty of a Class H felony.

2 The State asserts that the court of appeals erred in reversing the circuit court's judgment. It contends that homelessness is not a defense to failing to comply with the registration requirements and that Dinkins could have complied with the statute by listing a park bench or other on-the-street location as the place he would be residing.

3 We agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements. However, we disagree that Dinkins was capable of complying with the statute by listing a park bench or other on-the-street location.

... ... ...

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

Louisiana sex offender Facebook law: New law requires sex offenders post their criminal status

Besides my note below, and the fact that I think this is ludicrous, lets take a different look at this requirement. Are all social networks capable of storing this extra information, do they ask the questions and provide input fields for sex offenders to input the required information? Further proof lawmakers do not take the time to think about what they are proposing.. (see background posts HERE) As of 1-2014 no one has challenged this.

7-11-2012 Louisiana:

LOUISIANA -- A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law's author saying the bill is the first of its kind in the nation.

State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal's social networking sites as well.

Thompson, an attorney and a father of a 13-year-old daughter and 9-year-old son, said he hopes other states will follow Louisiana.

Social networking sites such as Facebook and MySpace have been removing sex offenders from their web pages for years, but Thompson said the law is designed to cover any possible lapses by social networking sites.

"I don't want to leave in the hands of social network or Facebook administrators, 'Gee, I hope someone is telling the truth,'" Thompson said Tuesday. "This is another tool for prosecutors."

The new law, signed by Gov. Bobby Jindal earlier this month, builds upon existing sex offender registration laws, in which the offender must notify immediate neighbors and a school district of his or her residency near them, Thompson said.

The law states that sex offenders and child predators "shall includes in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics... and his residential address."

Several states now require sex offenders and child predators to register with authorities their e-mail accounts, Internet addresses or profile names to social network and other web sites, according to the National Conference of State Legislatures. A few states such as Illinois and Texas even outright prohibit sex offenders, as a condition of parole, from accessing social networking websites, the group said.

The Louisiana law is the latest addition to statutes requiring public notice and registrations by sex offenders, Thompson said.

"It provides the same notice to persons in whose home you are injecting yourself via the Internet," Thompson said. "I challenge you today to walk down the street to see how many people and children are checking Pinterest, Instagram and other social networking sites. If you look at how common it is, that's 24 hour a day, seven days a week for somebody to interact with your children and your grandchildren."

Facebook applauded the new Louisiana law, even though it "will have no direct" effect on its service, the company said in a statement to CNN.

"Our Statement of Rights and Responsibilities already bars registered sex offenders from using Facebook," the firm said. "We take the safety and security of our users, especially the many young people on Facebook, very seriously. We have consistently supported legislation to help strengthen law enforcement's ability to find, prosecute and convict online sexual predators."

Violators of the new law could face imprisonment with hard labor for a term between two and 10 years without parole and a fine up to $1,000. A second conviction carries a maximum penalty of imprisonment with hard labor for a term between five and 20 years without parole and a fine up to $3,000.

Thompson consulted prosecutors and the attorney general in Louisiana when drafting the law because last year, a federal court struck down a Louisiana law that outright banned sex offenders and child predators from using Internet. The court found the law too broad, Thompson said.

Last year, the American Civil Liberties Union of Louisiana sought to block the enforcement of that state law that tried to limits sex offenders' use of the Internet, arguing that it infringes on constitutional rights. The law had targeted registered sex offenders convicted in crimes involving children and prohibited the "using or accessing of social networking websites, chat rooms and peer-to-peer networks," according to the legislation that was signed into law in June 2011.

Louisiana lawmakers, however, have not given up on that stricter law. In fact, a revised version was passed by the Louisiana legislature and signed into law in May, but Thompson is skeptical that latest version can survive a court challenge. The revised, new ban prohibits certain registered sex offenders from intentionally using a social networking website, Gov. Jindal said in a statement.

Said Thompson about that new law: "It may very well fall under scrutiny and attack. That's one of the reasons that I created the bill I did. I'm not trying to create a ban. I'm just trying to create an expansion of the existing notice requirements." ..Source.. by Michael Martinez, CNN

US v Wolf Child

10-23-2012 Montana:

US v Wolf Child
699 F.3d 1082 (2012)

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.

The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child's ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.

We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a "particularly significant liberty interest." The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.

Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals.

Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

... ... ...

VACATED AND REMANDED.

APPELLATE COURT DETERMINES ORANGE COUNTY SEX OFFENDER ORDINANCE UNLAWFUL

11-15-2012 California:

People v Godinez
UPDATE: Case is on appeal

The ordinance passed by Orange County which prohibits all registrants from entering public parks, beaches, harbors and other recreational areas is unlawful, according to a panel of three Superior Court judges. The unanimous decision was issued on November 15.

According to this decision, the county ordinance violates the constitution of the State of California because it preempts existing state law which prohibits registrants from entering public parks but only if the registrant is on parole and offended against a child who is less than 14 years old. That law is California Penal Code Section 3053.8.

“This is a major victory for registrants, not only in Orange County, but throughout the state of California,” stated Janice Bellucci, California RSOL state organizer. “Registrants can now recreate in the parks, beaches, and harbors of Orange County without fear of being arrested or fined.”

This decision is the result of the dedication and hard work of attorneys within the Orange County Public Defender’s Office who have represented registrant Hugo Godinez, who was arrested in an Orange County Park on May 5, 2011. According to attorney Scott Van Camp, Godinez was attending a mandatory company celebration of Cinco de Mayo at the time of his arrest.

The court’s decision has been referred to the next appellate level for possible review. That court could reject further consideration of this decision or accept the case for additional review. A decision by that court regarding further review of the November 15 decision is expected in December.

The November 15 decision is limited to the Orange County ordinance and does not apply to ordinances passed by cities within that county or any other county. However, additional challenges have been made to similar ordinances adopted by Orange County cities, including but not limited to Tustin, Fullerton, Costa Mesa, Seal Beach, and Huntington Beach. ..Source.. by CA-RSOL

State Police wrongly arrested man, court says

3-24-2012 West Virginia:

The State Police did not have the right to arrest a Tyler County man for failure to re-register as a sex offender upon his release from jail in 2010, the West Virginia Court of Appeals said Thursday.

Sex offenders are only required to re-register their information following a conviction -- not after an arrest, the Appeals Court ruled.

On Dec. 27, 2010, the Tyler County Circuit Court dismissed a failure to register as a sex offender charge against Timothy John Judge, 30. Tyler County Prosecuting Attorney D. Luke Furbee then appealed the dismissal.

On Sept. 19, 2002, Judge was convicted of a third-degree sexual abuse charge and severed 18 months of probation, according to the opinion.

Judge was in compliance with the sex offender registry and updated his information just weeks before he was arrested on May 7, 2010 for a charge of accessory after the fact to breaking and entering. After a one-night stay in the North Central Regional Jail, Judge returned to his previously registered home, according to the opinion.

Police arrested Judge because he did not complete a new sex offender registration form.

According to the State Police's form, an offender must re-register with three days "of release from an institution."

Furbee said the sex offender law wasn't clear on what is required of an offender after an arrest.

"The interpretation that the State Police was using ... were being advised if they had been committed to jail during a period of registration or any other institution involuntarily, they were to essentially renew their registration within three business day of their release," he said.

The Appeals Court ruled, "the duty to register as a sex offender arises upon a conviction of an offense.

"In this case, it was alleged the defense did not follow those directions and the problem simply was 'did that amount to a criminal violation or not?'" Furbee said.

The state acknowledged "there is an apparent gap or disconnect in the statutory language of [the sex offender law] and the State Police's rule and forms," according to the opinion.

The Appeals Court said all State Police forms that "include language instructing sex offenders of their obligation to re-register upon each release from incarceration should be rewritten to remove such language."

"It was an arguable issue and the court apparently agreed that it was by accepting this appeal for full argument. The court answered that question in the negative," Furbee said. "Now we know the right answer, and we have to have certainty if we're going to be asked to prosecute these cases."

State Police Spokesman Sgt. Michael Baylous declined to comment. ..Source.. by Travis Crum

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Judge Gets 1-5 Years For Registration Violation

10-17-2012

Timothy John Judge, 31, of Box 132, Friendly, was sentenced Tuesday in Wetzel County Circuit Court to one to five years in the West Virginia State Penitentiary for Men.

He had pleaded guilty on Aug. 13 to failing to register as a sex offender or provide a change in information to the West Virginia State Police in Wetzel County by knowingly failing or refusing to report his move to a new address.

Both sides of counsel had their chance to give last words to the Judge Mark A. Karl before he went through with sentencing. Jeremiah Gardner, Judge's defense, reminded Karl of a letter written by Judge's employer in his favor. Gardner also reported that Judge is gainfully employed and is paying child support. Gardner stated that the error made by Judge was a technical one, in that he bought a cell phone and forgot to report his new cell phone number.

Prosecuting Attorney Timothy Haught reminded the court of Judge's history in both Tyler and Pleasants counties, that this was not his first offense of a similar nature.

Judge Karl agreed and thus, sentenced Judge to one to five years. He admonished Judge, telling him, "You've had opportunities; this shouldn't come as a shock to you."

Judge can file a Rule 35 motion for a reduction in sentence after four months in prison. Also, the state previously agreed to drop count two, knowingly failing or refusing to report a new vehicle or change in vehicle, per the terms of Judge's plea agreement. ..Source.. by LAUREN RIGGS

Audrey Doe v Bobby Jindal

3-29-2012 Louisiana:

Audrey Doe v Bobby Jindal
851 F.Supp.2d 995 (2012)

At issue in this case is a first and defining principle of our struggle as a nation that finally resolved in the Fourteenth Amendment to the Constitution: Equal Protection before the Law. As two writers1 have observed:

The idea was to distinguish between legislation for the common benefit and legislation that benefitted or burdened the few.... It was an appeal to notions of reciprocity in governance: law's generality was important, not simply in a formal sense but because it forced lawmakers to stand in the shoes of those they represented. The principle of class legislation was terraced in both directions — it not only aimed to prevent class privilege but also invidious oppression.

Section 1 of the Fourteenth Amendment instructs that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws."

At the outset, it must be underscored that the issue presented in this case is not about approval or disapproval of sexual beliefs or mores. It is about the mandate of equality that is enshrined in the Constitution.

In Louisiana, the solicitation of oral or anal sex for compensation can be prosecuted under two different statutes: the solicitation for compensation provision of the Prostitution statute, and the Crime Against Nature by Solicitation statute.2 Nine anonymous plaintiffs, all of whom were convicted of violating Louisiana's Crime Against Nature by Solicitation statute based on their agreement to engage in oral sex for compensation prior to August 15, 2011, bring this civil rights suit. They challenge that statute's requirement that, as a result of their conviction, they must register as sex offenders under Louisiana's sex offender registry law. They complain that if, instead, they had been convicted of solicitation of sex for money under the state Prostitution law, they would not have been required to register as sex offenders.3 It is the State's more lenient treatment of those convicted under the solicitation provision of the Prostitution statute, they urge, compared to those convicted under the Crime Against Nature by Solicitation statute, that anchors their civil rights claim in which they advance their constitutional challenge under the Fourteenth Amendment to the U.S. Constitution. They sue several State officials and one municipal official.

... ... ...

For all of these reasons, stripped of all political theater and with a concern solely to fidelity to the simple and clear injunction of the Fourteenth Amendment, the Court finds that the plaintiffs have demonstrated that the record, taken as a whole, leads to no rational basis for what the state legislature has done.30 The record discloses no genuine dispute as to any material fact: the plaintiffs have shown that they are entitled to judgment as a matter of law that they have been deprived of equal protection of the laws in violation of the Fourteenth Amendment to the U.S. Constitution.

Accordingly, the plaintiffs' motion for summary judgment is GRANTED. The plaintiffs shall submit a proposed judgment within five days consistent with this Order and Reasons.

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Hundreds to be stricken from Louisiana sex offender registry after class-action suit's settlement

6-13-2013 Louisiana:


Hundreds of people who were convicted of soliciting oral or anal sex for money under Louisiana's "crime against nature by solicitation" law will have their names removed from the state's sex offender registry following the settlement of a class-action lawsuit.

U.S District Judge Martin Feldman on Tuesday approved the settlement agreement between the New York-based Center for Constitutional Rights and Louisiana Attorney General James "Buddy" Caldwell's office.

Feldman ruled last year that nine plaintiffs who were convicted of the offense must be stricken from the registry. Plaintiffs' lawyers argued the ruling should be applied to roughly 700 others in the same position.

Alexis Agathocleous, one of the lead plaintiffs' lawyers on the case, said the registration requirement for people convicted of violating the law disproportionately punished black women and lesbian, gay, bisexual and transgender people.

"We are gratified that the state has agreed to vindicate the rights of hundreds of people who continued to be unconstitutionally registered as sex offenders," he said in a statement.

The settlement doesn't apply to people convicted of soliciting sex from a minor or anyone who was convicted of another sex offense subject to registration. State officials have up to 30 days to make an initial determination of who is entitled to be removed from the registry.

Feldman ruled last year that state lawmakers had no "rational basis" for requiring people to register as sex offenders if they were convicted of violating the law. The judge said the plaintiffs wouldn't have had to register if instead they had been convicted of soliciting sex for money under the state prostitution law.

The state Legislature amended the 200-year-old law in 2011 so that anyone convicted of a "crime against nature by solicitation" no longer will be required to register. But the legislative change didn't apply to hundreds who already were registered.

During a hearing in December 2012, a lawyer representing Caldwell's office argued that the recent change in state law leaves the potential class members without any valid claims. Feldman refused to dismiss the class-action suit, however, and expressed frustration at the pace of the process for deciding whether people already had a right to have their names removed from the registry

"I am incredulous and very concerned about why this process has been dragged out against the backdrop of politics for so long," the judge said. ..Source.. by MICHAEL KUNZELMAN

Wilson v Flaherty

Interesting case where fellow claimed: Being required to register, is being in custody for the purposes of a habeas corpus petition. How many restraints on one's liberty are needed for the court to consider a person is -in custody- under registration laws?

8-15-2012 Virginia:

Wilson v Flaherty
689 F.3d 332 (2012)

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254's jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson's petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).

We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson's liberty so as to justify a finding that he is in the custody of state officials.

... ... ...

Recognizing that he filed his petition only after fully serving his sentence, Wilson contends nonetheless that he remains "in custody" of the Virginia State Police because of the "substantial restraints on his liberty" that the State Police are imposing on him by enforcing Virginia's sex offender registration statute. He does not dispute the proposition that the collateral consequences of a conviction do not generally suffice to find one "in custody" but argues that, as a sex offender, he suffers from far more substantial restraints than the normal consequences of a felony conviction. In addition to the general registration obligations, which he must fulfill in person and which require him to provide a wide "array of physical and other personal identifying information," he notes that he has to reregister every 90 days because his offense was a "sexually violent offense," see Va.Code 9.1-904. He also must reregister in person for any changes in residence, employment, vehicle ownership, or online contact information. See id. § 9.1-903. Moreover, before moving from Virginia to Texas, Wilson was required to notify the Virginia State Police, who in turn notified the designated law enforcement agency in Texas. See id. § 9.1-903(D). He asserts that when he moved to Texas, he was and continues to be subject to similar registration requirements. See Tex.Code Crim. Proc. Ann. art. 62.001, et seq. In addition, he claims that under Texas law he must carry a sex offender identification card at all times and renew his driver's license every year rather than every six years and must do so in person.

Wilson also points to other constraints resulting from his status as a sex offender that are not imposed by the registration statutes. He claims that he is unable to work as an electrician at particular jobs, such as at government buildings, or to enroll in electrician school to advance his career because he cannot pass the required background checks. He claims that he has been unable to adopt his eight-year-old stepson; that, to visit his stepson in school, he must submit to a humiliating background check; that, for an unexplained reason, he was not permitted to travel to Canada for his honeymoon; and that he must notify authorities if he is going to be away from home for more than 24 hours.

Finally, Wilson points out that his failure to comply with the state registration requirements subjects him to criminal penalties, both under state and federal law.

Based on these restraints on his liberty, Wilson contends that he remains "in custody," thereby satisfying the "in custody" jurisdictional requirement of 28 U.S.C. § 2254 and enabling the federal habeas court to consider his challenges to his rape conviction.

... ... ...

Individuals in Wilson's position are not, however, without remedies to clear their names. Wilson might be able to invoke the writ of coram nobis in state court, which "affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir.1995); see also United States v. Sandles, 469 F.3d 508, 517 (6th Cir.2006) ("The proper means of attacking the validity of a sentence which has already been served ... is by writ of error coram nobis" (alterations omitted)). The court in Estate of McKinney explained that coram nobis "provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Estate of McKinney, 71 F.3d at 781 (emphasis added) (internal quotation marks omitted).3

In making these observations, however, we do not pass on the merits of Wilson's claim, nor do we suggest the outcome of any further proceeding. We simply and narrowly affirm the district court's conclusion that Wilson is not "in custody" within the meaning of 28 U.S.C. § 2254(a) and that therefore the district court lacked subject matter jurisdiction to entertain his habeas petition.

Judge: Sex Offender Must Sell House, Move

Apparently the man owned the home, and had a lawyer (criminal case), why would the lawyer allow him to do this? The home was not forfeited, and he could have rented it and lived elsewhere. Checked for appeal and there was none. Constitutional rights were violated by the court here, no doubt.

8-16-2012 Texas:

REFUGIO -- A convicted sex offender has been ordered to sell his house and relocate after pleading guilty to having sexual contact with a 5-year-old girl last summer.

Raymond Ramirez Sr., 65, was sentenced to six months in jail and ten years probation, one of the conditions of which requires him to "sell and relocate from his current residence on or before 10-18-12."

Ramirez's house on Wales Road is about a quarter mile down the road from a child daycare center.

As part of his probation, Ramirez must visit regularly with a probation officer, have no contact with children and abide by a nightly curfew. ..Source.. by Mike Manzoni

State v Hall

While this is a win on the points raised, the case is remanded for further processing. [4-25-2013: State sex offender act modified ]

12-5-2012 New Mexico:

State v Hall
2013-NMSC-001

Defendant Bruce Hall was convicted of a sex crime in California pursuant to a plea agreement. Hall subsequently moved to New Mexico and was charged with the fourth-degree felony of failing to register as a sex offender in violation of NMSA 1978, Section 29-11A-4(N) (2005).

The New Mexico Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2007), requires a person convicted of any of twelve enumerated sex offenses, or who is convicted of an equivalent offense in any other jurisdiction, to register as a sex offender with the county sheriff for the New Mexico county in which that person resides.

What constitutes an equivalent offense and how a court makes such a determination are the subjects of this opinion. We hold that an offense is "equivalent" to a New Mexico offense, for purposes of SORNA, if the defendant's actual conduct that gave rise to the out-of-state conviction would have constituted one of the twelve enumerated offenses requiring registration pursuant to SORNA.

When the defendant's out-of-state conviction results from a plea agreement, courts may look to the charging documents, the defendant's written plea agreement, and the transcript of the plea hearing to determine the defendant's actual conduct and whether such conduct would have constituted one of the twelve enumerated offenses.

... ... ...

CONCLUSION

To determine whether a foreign sex offense is equivalent to a New Mexico sex offense for purposes of SORNA, and where the two offenses when compared do not share the exact same elements, a court must look beyond the elements of the offense and consider whether the defendant's actual conduct, had it occurred in New Mexico, would have constituted a registrable offense. However, in this case, there is an insufficient factual record on which to determine the defendant's actual conduct. For this reason, we reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion, with leave for Hall to withdraw his guilty plea.

IT IS SO ORDERED.

Man failed to register, but he wasn't a sex offender

1-7-2012 Arkansas:

Michael P. Howard's case was an unusual one. Twice in four months he was arrested for failing to register as a sex offender, even though he'd never been convicted of a sexual offense.

This week in Baxter County Circuit Court, Prosecutor Ron Kincade reduced the charges against the 30-year-old Howard to obstruction of governmental operations and agreed to a year's probation.

Kincade told the court that while Howard did have a battery conviction in Missouri, "he has never been convicted of any sex offense."

"There is no criminal history of a sexual offense of any kind," said the prosecutor.

However, Kincade said Missouri has "a crazy rule about battery" — or certain battery offenses — that require the person convicted to register with the state. He told the court that under Arkansas statutes, any offender required to register in another state must register in Arkansas as well, yet the only registration system Arkansas has is for sex offenders.

When local authorities discovered Howard was required to register in Missouri and had not registered when he moved into Baxter County, he was charged with failing to register as a sex offender in November 2010 and again in February 2011, even though he was not a sex offender.

Under the amended charge, Howard, who now lives at Booneville, was placed on one year's probation, and in each case he was fined $500 plus $420 in costs and fees. ..Source.. by THOMAS GARRETT

US v Adam Ray Fernandez

2-28-2012 Arkansas:

US v Adam Ray Fernandez
671 F.3d 697 (2012)

Adam Ray Fernandez pleaded guilty to one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. The district court sentenced him to 18 months' imprisonment and five years' supervised release. Fernandez appeals the district court's denial of his motion to dismiss the indictment. We affirm in part and reverse in part.

On April 26, 2010, a detective in the Fort Smith Police Department learned that Fernandez was living in Arkansas and had been convicted previously in Oklahoma state court of crimes that required him to register as a sex offender. Fernandez was convicted of forcible sodomy in 1993 and second-degree rape in 1996. Before his release from state prison in 2009, Fernandez signed a notice acknowledging his duty to register as a sex offender. The detective verified that Fernandez had not registered as a sex offender in the State of Arkansas or in the city of Fort Smith, as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq.

A grand jury charged Fernandez with knowingly failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250. He moved unsuccessfully to dismiss the indictment, and then entered a conditional guilty plea in which he reserved the right to appeal the district court's ruling on the motion.

Fernandez first argues on appeal that the SORNA violates the "non-delegation doctrine" of the Constitution, because 42 U.S.C. § 16913(d) authorizes the Attorney General to determine the scope of the law. Pursuant to § 16913(d), the Attorney General promulgated rules concerning the applicability of the SORNA, see, e.g., 28 C.F.R. § 72.3 (2011), and Fernandez seeks to challenge his authority to do so.

The district court ruled that under this circuit's decisions in United States v. Hacker, 565 F.3d 522, 527-28 (8th Cir.2009), and United States v. May, 535 F.3d 912, 920-21 (8th Cir.2008), Fernandez lacked standing to bring this challenge. These cases held that the scope of the Attorney General's rulemaking power under § 16913(d) was limited to defendants who were convicted of sex offenses prior to SORNA's enactment, but who were unable to register under § 16913(b). Only those unable to register before the SORNA's enactment, therefore, had standing to challenge § 16913(d) as a violation of the non-delegation doctrine. See May, 535 F.3d at 921. Because Fernandez was able to register upon his release from prison in 2009, the district court ruled he did not have standing to challenge § 16913(d).

May and its progeny, however, have been superseded by the Supreme Court's recent decision in Reynolds v. United States, ___ U.S. ___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). Reynolds held that the Attorney General's rulemaking power extends to all "pre-Act (and preimplementation) offenders" and that the "Act's registration requirements do not apply to pre-Act offenders until the Attorney General so specifies." Id. at 984. Because Fernandez committed the underlying sex offenses prior to the SORNA's implementation, he is subject to the Attorney General's authority to make rules under § 16913(d), and has standing to challenge the grant of that authority by Congress. While the district court understandably relied on our circuit precedent, Reynolds establishes that Fernandez has standing to raise his non-delegation claim, and we remand for the district court to consider that claim on the merits.

Fernandez's other challenges to the district court's ruling are foreclosed by circuit precedent. This court in May, 535 F.3d at 921-22, and United States v. Howell, 552 F.3d 709, 713-17 (8th Cir.2009), held that Congress had authority under the Commerce Clause to enact 18 U.S.C. § 2250 and 42 U.S.C. § 16913, respectively.

NOTE: There are many folks whose forms did not say anything about moving to another state and registering, therefore have never received the notification mentioned here!

In May, 535 F.3d at 921, and United States v. Baccam, 562 F.3d 1197, 1198-1200 (8th Cir.2009), this court held that notice to a sex offender of state law requirements that he must register when moving between jurisdictions is sufficient to establish that a prosecution for failure to register under the SORNA is consistent with the Due Process Clause.

Baccam (relied on fact he had signed state forms) also held that a sex offender is subject to prosecution under § 2250(a) even if he has not received notice of the SORNA's registration requirements pursuant to 42 U.S.C. § 16917. The district court thus correctly rejected identical arguments raised by Fernandez.

For these reasons, we affirm in part, reverse in part, and remand for further proceedings.

US v Felts

3-12-2012 Tennessee:

US v Felts
No. 11-5237.

David Wayne Felts was convicted for failing to register under the Sex Offender Registration Notification Act ("SORNA") in Tennessee.

Felts's appeal presents a case of first impression for this Circuit—can an offender be convicted for failure to register under SORNA if his home state, Tennessee, has not yet completely implemented the act?

Felts challenges the district court's denial of his motion to dismiss the indictment. In concert with six other circuits, we hold that SORNA is effective in a state, even prior to its complete implementation. Felts's alternate constitutional arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine, and the Tenth Amendment—are without merit.

I
Felts served fifteen years of imprisonment for a 1994 conviction for rape of a child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a different twelve-year-old victim) on October 26, 1993. After his release, Felts, along with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan, Puerto Rico, without notifying the registration authorities in his home state of Tennessee. Felts was indicted on one count of failing to register under SORNA, in violation of 18 U.S.C. § 2250(a). The district court denied Felts's motion to dismiss, after which Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now appeals the denial of the motion to dismiss.

... ... ...

Unlike the situation with the Brady Handgun Violence Prevention Act in Printz, Congress through SORNA has not commandeered Tennessee, nor compelled the state to comply with its requirements. Congress has simply placed conditions on the receipt of federal funds. A state is free to keep its existing sex-offender registry system in place (and risk losing funding) or adhere to SORNA's requirements (and maintain funding). Since Felts's conviction, Tennessee has come into substantial compliance with SORNA. The choice is that of the state.

SORNA does not violate the rights of Tennessee, or those of Felts as an individual, under the Tenth Amendment of the Constitution.

The judgment of the district court is AFFIRMED.

US v Davis

6-19-2012 5th Circuit:

US v Davis

Robert A. Davis, III, pleaded guilty, pursuant to a conditional guilty plea, to failure to register as a convicted sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), reserving his right to appeal the challenges to SORNA made in his motion to dismiss the indictment. The district court sentenced Davis to 37 months in prison to be followed by a life term of supervised release.

On appeal, Davis argues that,

• (1) he was never advised of the registration requirements of SORNA, as required by 42 U.S.C. § 16917, in violation of the Due Process Clause;
• (2) the retroactive application of SORNA violates the Ex Post Facto Clause;
• (3) SORNA violates the Tenth Amendment by requiring state officials to administer federal law;
• (4) Congress violated the non-delegation doctrine by giving the Attorney General the power to decide whether SORNA applied retroactively;
• (5) SORNA's registration requirement violates the Commerce Clause by making failure to register a federal crime;
• (6) regulations issued by the Attorney General were given without notice and comment in violation of the Administrative Procedures Act (APA); and
• (7) SORNA does not apply to him because Mississippi has not yet adopted it.

Davis's complaints as to the notice and APA deficiencies, as well as his reliance on the holding in Reynolds v. United States, 132 S.Ct. 975 (2012), are unavailing as he traveled in interstate commerce after the final regulations were issued, which were published with proper notice and comment rulemaking. See 73 Fed. Reg. 38031-01.

His remaining claims are foreclosed by our opinion in United States v. Johnson, 632 F.3d 912 (5th Cir.), cert. denied, 132 S.Ct. 135 (2011). Davis asks us to reconsider the rulings in Johnson, and alternatively, he presents these issues to preserve them for further appellate review. This panel may not reconsider the court's precedent absent an overriding Supreme Court decision, a change in statutory law, or en banc consideration. See United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).

Accordingly, the judgment of the district court is AFFIRMED.

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.

Andrews v State

11-21-2012 Indiana:

Andrews v State
No. 29A02-1112-MI-1166.

Thomas Andrews ("Andrews") filed a petition in Hamilton Circuit Court requesting that his name be removed from Indiana's sex offender registry. Specifically, Andrews, who was convicted of sex offenses in Massachusetts in 1984, argued that his name should be removed from the registry pursuant to our supreme court's decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). Because we conclude that requiring Andrews to register as a sex offender violates Article 1, Section 24 of the Indiana Constitution prohibiting ex post facto laws, and that Indiana state courts do not have the authority to consider whether federal statutory penalties attach to Andrews's conduct, we reverse and remand with instructions to the trial court to grant Andrews's petition for removal from the sex offender registry.

Facts and Procedural History
In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-107 5. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14, 1989.

In 1993, Andrews, who had married, moved to Indiana to be closer to his wife's family.

In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address, but travels to locations in and out of the state to meet with his company's clients.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he was required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal of his name from the registry and arguing that pursuant to our supreme court's 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not required to register as a sex offender. The State opposed Andrews's petition and the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews's circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as "USSORNA"). On November 30, 2011, the trial court granted the State's motion for summary judgment and denied Andrews's motion. Andrews now appeals.1

.....

Indiana is the only state that has ever required Andrews to register as a sex offender, and he has resided in Indiana since 1997. But while Andrews may have a federal duty to register under US SORNA if he engages in interstate travel, and could be subject to prosecution in federal district court under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.

Andrews has filed his petition in Indiana state court seeking removal of his name from Indiana's sex offender registry. After acknowledging that our state sex offender registry law does not run afoul of the Ex Post Facto Clause of the United States Constitution, our supreme court concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition on ex post facto laws contained in the Indiana Constitution.8 Greater protection of Hoosiers's rights under the Indiana Constitution is not an uncommon principle in our state's jurisprudence.9 See Wallace, 905 N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002)) (stating "[t]he Indiana Constitution has unique vitality, even where its words parallel federal language").

Andrews, who on the record before us is an apparently rehabilitated and productive citizen of our state, was convicted of a sex offense almost thirty years ago, and well before Indiana enacted INSORA. Accordingly, pursuant to our supreme court's opinion in Wallace, we must conclude that Andrews's petition for removal of his name from Indiana's sex offender registry should have been granted.

Reversed and remanded with instructions to grant Andrews's petition for removal of his name and any other identifying information from Indiana's sex offender registry. VAIDIK, J. and BARNES, J., concur.