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Judges find ex post facto claim waived

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The man who raised a constitutional challenge to the propriety of his conviction of failing to register as a sex offender waived his ex post facto claim when he entered into a plea agreement, the Indiana Court of Appeals held Wednesday.

In James E. Rogers v. State of Indiana, No. 84A01-1104-CR-148, James Rogers appealed his conviction of and sentence for Class D felony failure to register as a sex offender, and his sentences for Class D felony theft and receiving stolen property. Rogers was convicted of an offense in Wisconsin in 1991 that required him to register as a sex offender there. When he relocated to Indiana in the mid-1990s, he registered as a sex offender. The last time he updated his address with the sheriff’s office was Nov. 4, 2009.

After he was arrested for theft and later released from jail, the sheriff’s department discovered he did not register within the seven-day time period as required under statute. He entered into a plea agreement for the failure to register, theft and receiving stolen property charges in exchange for the dismissal of four other causes. He was sentenced to three years on each count, with the sentences running consecutively.

On appeal, Rogers argued that his failing to register conviction is an improper ex post facto application of sex offender registration requirements in violation of the Indiana Constitution. The appellate court declined to find that an ex post facto constitutional claim is an exception to the general rule that a defendant may not challenge a conviction pursuant to a guilty plea on direct appeal. Rogers entered into his plea agreement with the state and benefited from the agreement. The record is sparse on the circumstances of when he moved to Indiana and why he registered in Indiana at all, but the judges found his circumstances fall into the broader general rule that a person waives potential claims with respect to the propriety of his conviction on direct appeal when he pleads guilty pursuant to a plea agreement.

The COA also concluded that Rogers’ sentence was appropriate, finding the nature of the offenses does not justify a reduced sentence and that the court did not abuse its discretion in deciding that the crimes and Rogers’ remorse weren’t mitigating factors.
 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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