ILNews

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.

ADVERTISEMENT

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

Post a comment to this story

COMMENTS POLICY
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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT