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Tuesday, September 04, 2012

Ind. Courts - Ex post facto application of sex offender requirements for offenses committed outside Indiana and the applicability of the federal law, SORNA, to Indiana cases is at issue before the COA tomorrow

In this week's list of upcoming oral arguments, the one this Wednesday before the Court of Appeals is very timely. Here is the description prepared by the Court:

Wednesday, September 5th

1:00 PM - Thomas H. Andrews v. State of Indiana ( 29A02-1112-MI-1166)

Case Synopsis for the Andrews v. State Oral Argument

In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-1075. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14, 1989.

Andrews married thereafter, and moved to Indiana to be closer to his wife’s family. In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997 and currently resides in Noblesville, Indiana. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address and travels to locations in and out of the state in the operation of his company.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he is required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal from the registry, arguing that pursuant to our supreme court’s 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not required to register as a sex offender. The State opposed Andrews’s petition and, because the facts are not in dispute, the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews’s circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as “SORNA”). On November 30, 2011, the trial court granted the State’s motion for summary judgment and denied Andrews’s motion without explaining the reason(s) for its decisions.

Andrews has appealed the trial court’s judgment and argues that pursuant to Wallace, the requirement that he register as a sex offender violates the Indiana Constitutional prohibition against ex post facto laws. In response, the State argues that Wallace does not apply because Andrews was convicted in Massachusetts and he would be required to register as a sex offender in Massachusetts. The State also argues that Andrews has an independent duty to register as a sex offender SORNA. SORNA provides that a sex offender must register in any jurisdiction where the offender resides, is an employee or a student. And pursuant to 18 U.S.C. § 2250, it is a federal criminal offense for any person, who is required to register under SORNA, to travel in interstate commerce and knowingly fail to register or update a registration.

The Scheduled Panel Members are:
Judges Vaidik, Mathias and Barnes.

[Where: Indiana University Robert H. McKinney School of Law, 530 West New York Street, Room 100, Indianapolis (Webcast to be available later)]

Unless you go over to the law school tomorrow, you won't be able to see the oral argument right away, but I'm told a video is being made and will be posted later.

The ILB has obtained the briefs in the case:

Posted by Marcia Oddi on September 4, 2012 08:57 AM
Posted to Upcoming Oral Arguments