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COA finds 2007 version of statute is an ex post facto law

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The Indiana Court of Appeals has reversed in part a man’s petition for post-conviction relief challenging the finding that he is ineligible to petition for a change of status regarding being a sexually violent predator. The 2007 version of the applicable statute is an unconstitutional ex post facto law as applied to him.

In Michael R. Flanders v. State of Indiana, No. 48A02-1009-PC-1019, Michael Flanders was convicted of Class C felony sexual misconduct with a minor in April 2007 stemming from an incident with a neighbor in 2005. Flanders also had a previous Class C felony child molesting conviction, so he was also charged with and convicted of being a repeat sex offender. At the time of his conviction, he was not classified as a sexually violent predator, but later the Indiana Department of Correction classified him as one.

On appeal of his denial for post-conviction relief, Flanders claimed ineffective assistance of trial and appellate counsel and challenged his reclassification by the DOC, which subjects him to more burdensome registration and reporting requirements.

Focusing on the 2007 amendments to Indiana Code 35-38-1-7.5, which clarified that certain convictions qualify someone as a SVP “by operation of law” and disallowed someone with two unrelated convictions for sex offenses to petition for removal of the SVP designation, the judges found the amendments to the registration statutes to be unconstitutional ex post facto laws as applied to Flanders.

His case is distinguishable from Jensen v. State, 905 N.E.2d 384, 389 (Ind. 2009), and Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011), because under the court-adopted seven-factor test, No. 7 – whether the sanction is excessive in relation to the alternative purpose – is punitive in regards to Flanders because he can’t petition the court to change his status due to the fact he has two unrelated convictions for sex offenses, wrote Judge Terry Crone.

The judges rejected the state’s claim that Flanders’ relief should be denied because he didn’t comply with I.C. 11-8-8-22 regarding removing a person’s offender designation or requiring the person to register under less restrictive conditions. They also rejected Flanders’ argument that his SVP designation should be reversed because of the ex post facto violation.

“The problematic provision is Indiana Code Section 35-38-1-7.5(g), which made offenders with two or more unrelated convictions for sex offenses ineligible to petition the court for a change in status. Flanders can be placed in the same position as offenders like Harris and Jensen by reinstating his right to petition the court for removal of his SVP status after ten years,” wrote the judge.

The COA also upheld the finding that he did not receive ineffective assistance of trial or appellate counsel.

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  • COA/ESP
    How does the COA know counsel wasn't ineffective? Were they there? I think not!

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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