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Court of Appeals finds 2006 statute does apply to 2001 violation

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The Indiana Court of Appeals rejected a defendant’s ex post facto argument and affirmed a trial court’s decision to convict him of committing a sex offender residency offense.  

Anthony Mark Sewell was convicted of child molesting as a Class B felony in 2001. After his release in 2007, he was required to register his address with law enforcement. When he moved to a new address in 2011, he was in violation of the state statute that prohibits sex offenders from living within 1,000 feet of a church that has a school, day-care or youth program center.

After the state charged him with one count of residing within 1,000 feet of a youth program center, the trial court found Sewell guilty and sentenced him to 1 ½  years in the Department of Correction with six months suspended to probation.

In his appeal, Sewell argued that applying the statute to him violated the ex post facto prohibition in state and federal constitution. This forbids Congress and the states from imposing a punishment for an act that was not punishable at the time it was committed.

He stated his conviction for child molesting was entered in 2001 for acts that took place in 2000. The application of the statute did not take effect until 2006.

Sewell relied heavily on the Indiana Supreme Court’s opinion in State v. Pollard, 908 N.E.2d 1145 (Ind. 2009). He contended that the decision in Pollard stands for the proposition that anyone convicted of an offense listed in Indiana Code 35-42-4-11 before July 1, 2006, is not subject to its provisions.

The COA found in Anthony Mark Sewell v. State, 73A01-1112-CR-609, that  Pollard did not apply because Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. The court concluded that because Sewell’s residency decision occurred after the enactment of the statute, Sewell’s prosecution does not violate state or federal ex post facto provisions.

 

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  • ex post facto law
    The fact that Sewell was required to register at all is a violation of ex post facto law., since there was no registration requirement when he commited his offense. I think the COA needs to look back and see how often they contadict themselves and coming to two different conclusions on two different primarily similar case.
  • Constitution
    The courts are making a mockery of American's Constitutional Rights!

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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