Indiana Sex Offender One Stop Resource

Resource Website for Indiana Registered Citizens

COA: Sex offender registration is mandatory collateral consequence

COA: Sex offender registration is mandatory collateral consequence

August 21, 2018

 

Despite arguing his guilty plea did not include a sex offense, a Steuben County man will have to remain on the state’s sex offender registry after the Indiana Court of Appeals found registering was a collateral consequence for his conviction.

Nathan Healey pleaded guilty to criminal confinement, a Class D felony, in 2009 and was sentenced to three years, with all but 270 days suspended. After he was released from the Indiana Department of Correction, Healey was required to register as a sex offender because his victim was less than 12 years old at the time of the crime.

Healey brought a declaratory judgment action for relief, asserting he did not plead to the age of the victim. The Steuben Circuit Court rejected his argument, and on appeal Healey argued the registration requirement violated his Sixth Amendment right to a trial by jury. In particular, he said he would have had to admit the underlying facts supporting the requirement as part of his plea agreement in order to be placed on the registry.

However, the state countered that Healey’s registration requirement is not part of his sentence, but instead is a collateral consequence. Specifically, his registration requirement fell under the state’s Sex Offender Registration Act (SORA).

The Court of Appeals agreed with the state and affirmed the trial court’s denial of Healey’s petition in Nathan Healey v. Robert Carter, Commissioner of the Indiana Department of Corrections, et al., 76A03-1711-MI-2681.

Reviewing the Indiana Code, the appellate panel found the Legislature included the entire criminal confinement statute when defining both “sex offender” and “sex or violent offender.” Then the administrative authority over SORA was delegated to the Department of Correction, which is required to maintain the sex offender registry.

“Quite simply, Healey pleaded guilty to criminal confinement, his victim was less than eighteen years of old, and Healey was not the victim’s parent or guardian; therefore, ‘(p)lacement on the Registry is mandatory, and the Act affords neither the trial court nor the DOC any discretion in the matter of the registration requirements,’” Judge Margret Robb wrote for the court, citing Nichols v. State, 947 N.E.2d 1011, 1017 (Ind. Ct. App. 2011).

“…We agree with the reasoning of the Nichols court,” Robb continued. “Healey pleaded guilty to the requisite crime of criminal confinement and admitted that Z.M. was the victim of the crime. Accordingly, Healey’s registration requirement was ‘a consequence of the operation of the Act itself,’… .”

Justices to decide if sex offender dad can go to son’s school activities

March 23, 2018

 

The Indiana Supreme Court must decide if a Howard County father can attend his son’s school activities despite his serious sex offender status after hearing arguments Thursday on an ex post facto claim.

After being convicted of child solicitation in 2010, Douglas Kirby was sentenced to 18 months of probation and was ordered to register as a sex offender for 10 years. However, the Howard Superior Court granted Kirby special permission to continue attending his son’s school activities on school property, despite his sex offender status.

But when the Unlawful Entry Statute, Indiana Code section 35-42-4-14, took effect in 2015, Kirby and other serious sex offenders found themselves subject to a Level 6 felony charge if they entered school property. Kirby filed a post-conviction relief petition arguing the statute was unconstitutional as applied to him, and the Indiana Court of Appeals agreed.

The state, however, told the Supreme Court justices during oral arguments in Douglas Kirby v. State of Indiana, 18S-CR-00079, that a post conviction relief petition was not the proper forum for Kirby to challenge the statute as an ex post facto punishment. Instead, Stephen Creason, chief counsel in the Indiana Attorney General’s Office, told the court an action for declaratory and/or injunctive relief would have been more appropriate.

The justices seemed to agree, posing repeated questions to Kirby’s counsel, Alan Wilson, about his client choosing to file for PCR rather than for declaratory judgment. Though Wilson acknowledged there was no caselaw to support the decision to bring Kirby’s pre-enforcement challenge through PCR, he also told the justices there were no rules against that strategy.

But Creason maintained that PCR proceedings are not used to challenge subsequent developments in the law — such as the passage of the Unlawful Entry Statute — if the developments do not affect the validity of the underlying conviction. Here, Kirby’s conviction was and is valid, Creason said, so he likened the restriction on sex offenders entering school property to felons being prohibited from possessing firearms.

“This isn’t punitive,” Creason said.

Because he argued the statue is not punitive, Creason urged the court to overturn the Court of Appeals’ finding of an ex-post fact violation. But Wilson urged the opposite, telling the justices that because the statute changed the nature of Kirby’s probation after his probation was completed, it constituted an impermissible ex-post facto sentence.

Wilson emphasized that he was not asking the court to find the statute unconstitutional, but rather only as applied to Kirby, who was given explicit permission to enter school property despite his serious sex offender status. Wilson also noted his client had willfully completed sex addiction rehabilitation and counseling programs, lessening his threat.

Creason, however, noted that Kirby’s victims were 14-year-old girls — the same age range he would come into contact with if he were allowed to watch his son participate in high school activities. Though his rehabilitation efforts are commendable, the Unlawful Entry Statute was specifically designed to prohibit convicted sex offenders such as Kirby from accessing potential victims at school, Creason said.

The full oral arguments can be viewed here.

Bill would limit sex offenders’ time at church schools

  • By Scott L. Miley CNHI Statehouse Reporter
INDIANAPOLIS — When Boone County law enforcement officials sent a letter telling registered sex offenders they couldn’t go to church where there were children’s programs, three of the letter recipients filed a lawsuit

The men claimed they couldn’t exercise their religion for fear of being arrested. They won their case with the Indiana Court of Appeals.

Now, a state senator is trying to set a time limit under which sex offenders can attend churches when children are present.

Sen. Frank Mrvan, D-Hammond, has authored legislation that would allow a serious sex offender to be at a religious institution, when it is located on school property, not earlier than 30 minutes before worship service begins or 30 minutes after it ends.

Mrvan said his Senate Bill 295 was aimed at keeping children safe: “It’s our responsibility to protect children.”

During a Senate Corrections and Criminal Law committee meeting this week, Sen. Michael Young, R-Indianapolis, who chairs the committee, explained, “What Sen. Mrvan’s bill is attempting to do is restrict those convicted sex offenders to certain times for services so their Constitutional rights are protected and so are the kids at the same time.”

On Tuesday, the bill passed 7-2 from committee and will head to the Senate floor.

However under questioning, neither Mrvan nor supporters could say how the law might affect an offender attending an adult Sunday school class held outside the 30-minute window.

A representative from the Indiana Department of Education asked that the 30-minute limits be extended to include school events. The department also wanted school corporations to not be held liable from any damages if a church allowed a sex offender to attend worship.

According to court documents in the Boone County case, pastors or staffers at two of the men’s churches knew of the sex offense convictions; a member of the ministry at the third man’s church knew of the convictions. All three churches had programming for children.

The July 2015 letter from the Boone County Sheriff’s office was based on Indiana law that prohibits “serious sex offenders” from being on school property.

The letter said the sex offenders could not attend church, without facing arrest, if the church conducted Sunday school or had child care.

The appellate court rejected the notion that the three offenders’ churches were “school property” and ruled in favor of the men attending church services.

Updated: April 2, 2018 — 11:02 am

Indiana Court Rules School Ban for Parents Unconstitutional

In another big win yesterday, an Indiana appellate Court determined that a law banning sex offenders from schools is Unconstitutional as applied to parents of children attending that school whose cases pre-date the law.

The Judge’s order found that restricting the registrant from his own child’s school was a “disability or restraint [that] is neither minor nor indirect”. It was punishment. He found “schools—especially school sporting events—have been open to members of the public. It seems reasonable to assume, therefore, that the act of restricting an individual from entering school property has historically been considered a form of punishment.”

The plaintiff in the case challenged the Indiana law on three grounds; first that it constituted Ex Post Facto Punishment, second for vagueness and third, that the statute violated his due process interest in the care, custody, and control of his son. Since the court ruled in his favor on the Ex Post Facto punishment ground, they didn’t address the other two.

It’s GREAT to receive a consistent flow of decisions across the country finding these laws do impose punishment and striking them down on ex post facto grounds!

If you care to read the decision, it can be found here: https://floridaactioncommittee.org/wp-content/uploads/2017/09/Kirby-v.-Indiana.pdf

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Updated: March 6, 2016 — 8:02 pm