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Friday, May 29, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (2):

In State of Indiana v. Scott Zerbe, a 13-page, 2-1 opinion, Judge Crone writes:

Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him “fair warning that his conduct would result in a penalty requiring him to register as a sex offender.” Appellant’s App. at 5. The State opposed Zerbe’s petition, which the trial court granted.

On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse. * * *

Brown, J., concurs.
Baker, J., dissents with opinion [which begins on p. 11, and concludes] Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. Notwithstanding the state of the law at the time Zerbe moved to Indiana, he is a resident of this State and “is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Michigan’s] laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Zerbe was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws and would affirm the trial court’s judgment.

In Shaheen Zamani v. State of Indiana, a 28-page, 2-1 opinion, Judge Brown writes:
Shaheen Zamani appeals his conviction for attempted murder and raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in denying his belated request to assert an insanity defense; and
II. Whether the prosecutor committed misconduct during closing argument which resulted in fundamental error.
We affirm. * * *

Bailey, J., concurs.
Robb, J., dissents with separate opinion [which begins, on p. 27, and concludes] Because I believe Zamani showed good cause for allowing the filing of a notice of intent to assert an insanity defense and that such filing would be in the interest of justice, I would hold that the trial court abused its discretion in denying the notice to assert an insanity defense and remand for a new trial.

NFP civil decisions today (1):

Mitchell Sigman v. State of Indiana and Sharon Hawk (mem. dec.)

NFP criminal decisions today (2):

Tony Julian v. State of Indiana (mem. dec.)

Matthew T. Dickerhoff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 29, 2015 01:20 PM
Posted to Ind. App.Ct. Decisions