Application of residency law unconstitutional

Rebecca Berfanger
January 1, 2008
Back to TopCommentsE-mailPrintBookmark and Share

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.

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...