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Wednesday, November 11, 2009

Ind. Decisions - "Sex offender registry [may be] reduced by 1/3"

So reported Megan Stembol of WANE Fort Wayne in this story yesterday. Some quotes:

ALLEN COUNTY, Ind. (WANE) - A landmark case at the Indiana Supreme Court may decrease the number of people in Allen County that have to register as a sex offender by more than a third.

The Indiana Supreme Court overturned a ruling by a Marion County judge in the case of Richard P. Wallace vs. the State of Indiana . It's a decision that could echo across the state.

In 1988, Wallace pleaded guilty to a Class C felony Child Molesting charge. He completed his sentence in 1992, two years before state legislators passed the Sex Offender Registration Act into law. It required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders, among other things. The law was later amended to include all offenders, regardless of conviction date. The Indiana Supreme court ruled making Wallace register as a sex offender is unconstitutional because it violates the state's ban on ex post facto laws.

Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

The story is about the Indiana Supreme Court decision in Richard P. Wallace v. State, decided last April. See this ILB entry from April 30th, headed "Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act." The second case was Todd Jensen v. State.

A May 3rd story in the in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, gives a good summary of the rulings - the ILB summary is here. Some quotes:

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry. * * *

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

Confusing differing results? The story goes on to report on how the rulings would be implemented:
For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.”

This entry from May 6th headed "Charges dismissed as a result of last week's Supreme Court decision" indicates that one case was dismissed pursuant to the Wallacedecision. But how is Wallace being implemented statewide? The JG story from early May indicates that the State DOC planned to comply.

Now back to the WANE story, published yesterday Nov. 10th, more than 6 months after the Wallace ruling. It continues:

The Allen County Sheriff's Department makes contact with about 200 registrants per month, knocking on their doors to confirm their address is correct. Shimkus admits, reducing the number of registrants by a third would reduce the work for police, who are dramatically taxed by the requirement of the Sex Offender Registration Act. Since it's conception in 1994, the law has been amended time and time again, to include more offenses, and more monitoring of offenders.

The Indiana Department of Corrections , the state registry administrative body, has a message to offenders on its website , regarding the Wallace case. It advises offenders to seek legal counsel if the Wallace case applies to them. [Allen County Sex Offender Registry Administrator, Detective Jeff Shimkus] says locally, offenders have to file a motion to have themselves removed from the registry. A handful of people have already done that in Allen County.

Here is the DOC page referenced in the story. The statement:
On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.
In other words, individual affirmative action is required to remove a name from the list, even though, as reported in the WANE story, in "Allen County Sex Offender Registry alone, the [Wallace] case potentially affects about 245 of the 650 people registered."

[More] The Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision. See the FAQ on who is required to register.

Posted by Marcia Oddi on November 11, 2009 09:21 AM
Posted to Ind. Sup.Ct. Decisions