Appeals court rejects sexually violent predator’s habeas petition

A man convicted of repeated child sex offenses must continue to register as a sexually violent predator, the Indiana Court of Appeals ruled Wednesday, rejecting his habeas corpus petition that asserted he was being subjected to unlawful lifetime parole.

The COA affirmed the Allen Superior Court’s dismissal of Reid Cowan’s habeas petition. Cowan argued, among other things, that because his initial sex crime happened in Michigan before Indiana passed its SVP registry requirement statute, he was being subjected to an unconstitutional ex post facto law.

Cowan possessed child pornography in April 2006 and pleaded guilty in June 2007 to a Michigan count of child sexually abusive activity. He was given a suspended 11-month sentence with five years of probation and was required to register as a sex offender in Michigan for 25 years.

About four months after he was sentenced, Cowan was charged in Indiana with three counts of Class B felony sexual misconduct with a minor and criminal confinement. He pleaded guilty to two counts and was sentenced to 10 years in the Department of Correction.

Upon Cowan’s release in November 2017, the DOC notified him that due to his two sex crime convictions, he was required to register as a sexually violent predator. Last October, Cowan unsuccessfully filed a habeas petition challenging that requirement as unlawful lifetime parole. He argued the “law enabling lifetime parole, and the amended definition of an SVP became effective July 1, 2006, three months after [he] committed the Michigan offence [sic] on April 1, 2006,” Judge Margret Robb noted from the briefs.

The DOC countered that there could be no ex post facto violation because Cowan “is an SVP by operation of law because he committed his Indiana crime while required to register as a sex offender because of his Michigan crime.” The COA agreed, affirming dismissal of his petition in Reid Cowan v. Robert E Carter, 19A-MI-402.

“Cowan’s main assertion, that the date he committed his out of jurisdiction offense determines whether he can be classified a sex or violent offender … has already been decided against his position,” Robb wrote, citing Tyson v. State, 51 N.E.3d 88 (Ind. 2016).

“Although the context of this case and Tyson are different, the principle is the same: just as the defendant in Tyson could be charged with failure to register in Indiana despite the fact that his out-of-state offense pre-dated the amendment to (Indiana Code) section 11-8-8-5(b), Cowan fell within the statutory definition of a sex or violent offender as it existed when he moved to Indiana despite the fact his Michigan offense pre-dated the amendment,” Robb wrote. “In other words, it is the status of the offender when he or she comes to Indiana that matters for purposes of the definition, not the date of the offense. When Cowan moved to Indiana, he was a sex offender obligated to register in Michigan and he merely maintained that status and the corresponding obligations when he crossed state lines; he suffered no additional burden by being subject to the Indiana registration requirement then in effect.”

“…The DOC is not unlawfully subjecting him to (lifetime parole) and the trial court did not err in dismissing his petition arguing otherwise,” the panel concluded.

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