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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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