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Friday, November 09, 2012

Ind. Decisions - "COA: Some out-of-state sex offenders don't have to register"

The Court of Appeals decision yesterday in Jerome Michael Burton v. State of Indiana is the subject of a story today by Dan Carden in the NWI Times:

A Hammond man convicted in 1987 of a sex crime in Illinois is not required to register as a sex offender in Indiana, because his Illinois conviction came before Indiana enacted its sex offender registration law in 1994, the state Court of Appeals ruled Thursday.

Jerome Burton, 46, is awaiting trial in Lake County on two felony counts of failure to register as a sex offender. Burton asked the appeals court to dismiss those charges as unconstitutionally retroactive, also known as ex post facto.

In 1987, Burton was convicted of aggravated criminal sexual assault and sentenced to six years in prison. A 1996 Illinois law required certain sex offenders, including Burton, to register for 10 years.

According to court records, Burton was convicted in Illinois for failing to register in 2003 and 2007, and the 10-year registration requirement was reset.

Indiana prosecutors argued that extension means Burton was required to register in Indiana upon moving to Hammond, under a 2006 law that mandates sex offenders living in Indiana that are required to register in any other state also must register in Indiana.

But in a 3-0 decision, the appeals court ruled Burton cannot be required to register in Indiana because his original 1987 conviction predates Indiana's 1994 sex offender registration law, and the Indiana Supreme Court has ruled that requiring pre-1994 Hoosier sex offenders to register is constitutionally prohibited.

The appeals court said Indiana owes no deference to Illinois' registration extensions, and so long as Burton lives in Indiana his rights are protected by the Indiana Constitution's prohibition on retroactive punishment.

"The underlying purpose of the ex post facto clause is to give effect to the fundamental principle that persons have a right to fair warning of the type of conduct that will give rise to criminal penalties," said Senior Judge John Sharpnack.

The appeals court ordered Burton's pending failure to register charges be dismissed, though that decision can still be appealed to the Indiana Supreme Court.

Posted by Marcia Oddi on November 9, 2012 11:56 AM
Posted to Ind. App.Ct. Decisions