ILNews

Application of residency law unconstitutional

Rebecca Berfanger
January 1, 2008
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The Indiana Court of Appeals today upheld a lower court's ruling that in at least one case of the state's application of a law prohibiting violent and child sex offenders from living within 1,000 feet of a school or public area where children congregate is unconstitutional.

The ruling came in State of Indiana v. Anthony W. Pollard, No. 05A02-0707-CR-640. Judges heard arguments in the case March 31. The state argued that Indiana Code Section 35-42-4-11 was not considered ex post facto law as applied to Anthony W. Pollard, but the appeals court disagreed and affirmed a ruling by Blackford Superior Judge John Forcum that dismissed the felony charge against him.

At the time of his April 4, 1997, criminal conviction of committing a sex-related offense against a child, Pollard's home was within 1,000 feet of a school property, a youth program center, or a public park. He was not required to move away from his home as part of his sentence or as a result of his conviction. At the time he had lived there for about 10 years. That was nearly 10 years before the sex-offender residency statute went into effect July 1, 2006.

He still lives in the same home. On Jan. 26, 2007, the state charged Pollard with a Class D felony sex-offender residency offense. On March 2, 2007, Pollard filed a motion to dismiss. The trial court granted Pollard's motion to dismiss June 21, 2007, determining that Indiana Code section 35-42-4-11 violated the ex post facto prohibition contained in Article 1, Section 24 of Indiana's Constitution as applied to Pollard, adding that the application of Indiana Code Section 35-42-4-11 served to retroactively increase the punishment for the crime committed.

The state appealed, but the Court of Appeals agreed with the trial court.

"While we cannot speak to the purpose of the residency statute, we can observe its unmistakable effect," wrote Judge Paul D. Mathias. "The residency statute clearly increases the penalty applied to affected sex offenders by preventing those offenders from residing and taking full advantage of their ownership rights in property acquired prior to conviction and prior to the imposition of the statute. In contrast, the registration statute does not implicate any fundamental rights; rather, it places only an administrative burden on offenders."

Judge Mathias continued, "The residency statute also impinges upon one of this country's most closely held rights, the right to property."

The opinion also examines other states' versions of the sex-offender residency restrictions.
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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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