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Monday, May 24, 2010

Ind. Courts - A look at Wallace and IC 11-8-8-22

In this Feb. 23, 2010 ILB entry, I pointed to some problems I saw with the proposed amendment to IC 11-8-8-22 contained in SB 224. That language, with a change in the effective date, is now law.

Here is a long list of ILB entries on the impact of the Supreme Court's decision in Wallace v. State, starting with the ruling itself on April 30, 2009. Many of them concern how individuals to whom Wallace may apply have attempted to have their names removed from the state's several sex offender registries.

Three of these cases have now reached, and been decided by, the Court of Appeals. All three were pro se appeals. In each case, the COA has found that the litigants must begin their efforts anew, under the recently amended IC 11-8-8-22, which took effect March 24, 2010.

Glenn E. Brogan v. State of Indiana was decided May 6, 2010. The opinion was written by Sr. Judge Sullivan, with Judge Barnes writing a concurring opinion.

Spencer R. Wiggins v. State of Indiana and Stuart A. Clampitt v. State of Indiana were both issued today. Judge Barnes wrote both opinions.

After reading today's opinions, I asked IU-Indy Law Prof Joel Schumm some questions:

Q - Am I right in concluding that the new requirements in IC 11-8-8-22 are not a new and additional ex post facto requirement, because they are procedural?

A - Yes, it doesn't affect the quantum of punishment but instead concerns the methods employed.

That said, I read the amended statute to be prospective. It changes the procedures for where petitions must be filed effective March 24, 2010. These defendants currently being told to start over filed their petitions long before the new statute took effect. In light of these recent cases I suspect the State could try to set aside all those orders entered after Wallace and before March 24, too.

Q - Also, I've read stories about people being arrested recently for not being registered, even though under Wallace they didn't need to. Now they have to prove they aren't covered. Isn't that burden shifting?

A - If they have a decent lawyer, they should be able to get the case booted on a motion to dismiss early in the process. Of course, they've probably lost their job, spent time in jail, and are out a fair amount of bond money by that point.

Another question relates to other cases, where the litigants are represented by attorneys, now pending in trial court, such as those referenced in this Jan. 26, 2010 ILB entry headed "Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray"
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Note that in some counties "Some offenders have sent in simple handwritten letters explaining their situation and have received a court order without hiring a lawyer or legal counsel."

Posted by Marcia Oddi on May 24, 2010 01:49 PM
Posted to Ind. App.Ct. Decisions