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

Back to TopCommentsE-mailPrintBookmark and Share

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.


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

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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.