ILNews

Court rules on sex offender status decisions

Back to TopE-mailPrintBookmark and Share

Tackling the issue of who determines whether a convicted sex offender is considered a “sexually violent predator,” the Indiana Court of Appeals today issued the latest ruling in a line of cases about the state’s sex offender registry and how convicts’ names are removed.

The state Department of Correction is not authorized to determine whether an offender is a sexually violent predator according to state law, Judge James Kirsch wrote for a unanimous appellate panel in Edwin G. Buss, in his official capacity as Commissioner of the Indiana Department of Correction v. Michael L. Harris, No. 52A02-0911-CV-1088.

Arising out of Miami Circuit Court, the case involves a former inmate at the Miami Correctional Facility who pleaded guilty to felony child molesting in 1999 and was ultimately released on parole in 2002 and 2005, after being reincarcerated for parole violations. Harris learned in 2007 that, because of state statute revisions, he’d be designated as a sexually violent predator and would have to register for life. Harris refused to sign the forms for this twice, and sued on the issue in late 2007.

The case has been ongoing since then, with a bench trial in August 2009 where the trial court granted Harris’s requests for declaratory and injunctive relief and found that he should not be listed on the sex offender registry as a sexually violent predator. That court relied on the Indiana Supreme Court’s decisions last year in Wallace v. State, 905 N.E. 2d 371, 374-77 (Ind. 2009), and Jensen v. State, 905 N.E. 2d 384 (Ind. 2009).

Specifically, the DOC argues that Jensen applies to the instant case and that classifying him in that way doesn’t violate the man’s rights.

“We are left with the question, once an offender’s sentencing hearing has concluded, who makes the determination that an offender’s status is now, pursuant to amendments to the statute, that of a sexually violent predator subject to lifetime registration requirements?” the court asked. “If we were to adopt the State’s construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments … Nothing before us indicates that the legislature intended such as result.”

The trial court didn’t err in its decision, and the appellate panel relied largely on the case of Jones v. State, 885 N.E. 2d 1286 (Ind. 2008), to support its conclusion.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

ADVERTISEMENT