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Sex offender may file to take name off registry

May 6, 2010

The Indiana Court of Appeals determined a convicted sex offender may petition to remove his name from the registry, but he filed his petition in the wrong court.

In Glenn E. Brogan v. State of Indiana, No. 57A04-0910-CR-592, Glenn Brogan appealed the denial of his motion by Noble Superior Court to remove his name from the state’s sex offender registry. Brogan was convicted in late 1994 of two counts of child molestation in the county. At the time of his conviction, he wasn’t required to register as a sex offender. When he filed his motion in 2009 in Noble County to remove his name, he was incarcerated in the New Castle Correctional Facility for failing to register in Huntington County in 2008.

The Noble Superior Court denied his motion because it ruled it didn’t have authority or jurisdiction to remove his name.

The appellate court had to navigate the law following the Indiana Supreme Court’s ruling in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), and recently enacted legislation entailing how a registered sex offender may remove his or her name from the registry to determine in what forum Brogan should seek relief under Wallace.

The COA judges determined Brogan appropriately presented his request to be removed from the sex offender registry in his motion. Under a recent provision to Indiana Code Section 11-8-8-22, a sex offender can petition to have his name removed from the registry and the provision was made applicable in 2007 if there has been a change in federal or state law after June 30, 2007. The judges deemed Wallace such a change in law; they also noted the 2010 amendment to the statute authorizing an offender to raise an ex post facto claim.

The appellate court agreed that Noble Superior Court wasn’t the proper forum for granting Brogan relief. Under the 2010 legislation, the General Assembly dictated that the petition should be filed where the offender lives, spends the most time, works, or attends school. Only if none of those apply should the petition be filed in the county where the offender was originally convicted. Brogan should file in the county in which he resides.

“One thing is patently clear from the Wallace decision. Brogan is entitled to have his name removed from any sex offender registry which has resulted from his 1994 convictions in Noble County,” wrote Senior Judge Patrick Sullivan.

Judge Michael Barnes agreed with his colleagues in a separate opinion that Brogan needs to refile his petition in a different county.

“That determination, however, should be made by the trial court if Brogan refiles his motion pursuant to Indiana Code Section 11-8-8-22,” wrote Judge Barnes. “I think it is premature at this time to hold that Brogan is entitled to have his name removed from the sex offender registry.”
 

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