Removal From the Registry
There are three ways in which an offender may be removed from the requirement to register. First, as has already been discussed, general offenders are required to register for a period of 10 years. Once the ten years has expired, they should be automatically removed from the registry and should no longer be required to register. Most registrants who are removed will likely be removed in this fashion.
Second, an offender who is classified as an SVP may, after registering for ten years, ask that his status be changed from an SVP to a general offender. Assuming he is able to convince a court to change his status, he would be entitled to removal, since he would have already registered for a period of ten years.
Finally, in very rare circumstances an offender may seek immediate removal from the registry because he should have never been required to register in the first place. As I explained in an earlier entry, some offenders who committed triggering offenses before a certain date may not be required to register. For those offenders, a petition seeking immediate removal can be filed.
If you are required to register as a sex or violent offender but would like to know more about removal, please seek the advice of an attorney.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Registry
Offenders Against Children
Some registrants may be considered offenders against children, or “OAC’s.” A registrant is an OAC if he has either been found by a court to be a sexually violent predator (as opposed to simply being an SVP by operation of law), or if he has been convicted of one or more of the following offenses:
Child molesting
Child exploitation
Child seduction
Child solicitation
Kidnapping (if the victim is under 18 and the offender was not parent/guardian)
Attempt or Conspiracy to commit any of the above-listed offenses
In addition to the restrictions already imposed upon him as either a general offender or an SVP, an offender against children is required to comply with the following additional restrictions.
First, he cannot knowingly or intentionally work or volunteer on school property, at a youth program center, or at a public park.
Second, he cannot knowingly or intentionally “reside” (which means to spend three or more nights in the same place in any 30-day period) within 1,000 feet of school property, a youth program center, or a public park; or within 1 mile of the victim’s residence.
The length of the registration period for OAC’s depends on whether he is also classified as a general offender or an SVP.
In my next post, I will discuss what a registrant can do if he wishes to seek removal from the registry.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Registry
Sexually Violent Predators
In my last post, I provided an overview of the registration requirements for general offenders. In this post, I will provide general information about offenders who are designated as “sexually violent predators.”
Indiana law defines a sexually violent predator, or “SVP,” as a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense. See IC 35-38-1-7.5(a). This definition suggests that an evaluation of the offender is undertaken to determine if he has a mental abnormality or personality disorder before he is designated an SVP. This is true in only a small number of cases.
Instead, the majority of offenders labeled as SVP’s were convicted of an offense that, by operation of law, requires them to be labeled an SVP. Adult offenders who have committed at least one of the following offenses after June 30, 1994 are automatically designated an SVP by operation of law:
Child molesting as a Class A or Class B felony
Criminal deviate conduct
Rape
Vicarious sexual gratification as a Class A or Class B felony
Vicarious sexual gratification as a Class C felony (when certain conditions apply)
Attempt or conspiracy to commit any of the above-listed offenses
A person who committed one of the above offenses may be exempt from being labeled an SVP, but only in very rare circumstances.
Any person who commits a subsequent triggering offense is automatically designated an SVP as well.
Unlike general offenders, who are only required to register in person once per year for ten years, SVP’s must register in person every 90 days for the rest of their lives. Also, SVP’s must notify law enforcement in person if they will be absent from their residence more than 72 hours. SVP’s cannot work, volunteer, or reside near schools, youth program centers, or public parks. SVP’s also have internet usage restrictions. Finally, SVP’s are usually on parole for life.
An offender can petition the court to remove the SVP designation, but only after he has registered for at least ten years as a sexually violent predator.
In my final post on registration requirements, I will discuss offenders against children.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Registry
Requirements for General Offenders
In my last post, I identified the various categories a person can fall into as a registrant. In the next several posts, I will generally discuss the registration requirements involved with each category, beginning with general offenders.
General offenders are required to register in person at a law enforcement agency one time per year. This requirement usually lasts for a period of ten years after the registrant’s placement on parole or probation. However, if any of the following conditions applies, the yearly registration requirement is for life: (1) the triggering offense was committed by a person at least 18 years old, and the victim was 11 years old or younger; (2) the person caused serious bodily injury or death to the victim; (3) the person used force or the threat of force against the victim or a member of his/her family (unless the offense was a Class D felony sexual battery); (4) the person rendered the victim unconscious or otherwise unable to give consent; or (5) the person has committed at least two unrelated triggering offenses.
The registration period is tolled during any time that the person is incarcerated.
Besides yearly in-person registration with a law enforcement agency, a general offender is also required to verify his current residence annually by mailing in a completed form provided by the law enforcement agency, and obtain and possess some form of state identification on him at all times.
If the triggering offense was child exploitation, child molesting, child seduction, child solicitation, kidnapping, possession of child pornography, sexual conduct in the presence of a minor, vicarious sexual gratification, or an attempt or conspiracy to commit any of the above-listed offenses, the general offender may also have certain internet usage restrictions.
Penalties for failing to comply with these requirements can be severe. Registrants who are found guilty of failing to comply can be convicted of a felony and face prison time.
In my next post, I will discuss the specific registration requirements for sexually violent predators.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Registry
Categories of Registrants
In my last post, I discussed who is required to register as a sex or violent offender in Indiana. If a person falls in that category, what does registration require? It depends on what category of registrant the person falls into.
In Indiana, there are two main categories of registrants: general offenders and sexually violent predators (“SVP”). In additiona, many offenders also fall into a third category: offenders against children (“OAC”).
The specific registration requirements differ based on the category that applies. Below is a chart identifying the categories for each triggering offense.
Child exploitation – General & OAC
Child molesting (as a Class C felony) – General & OAC
Child molesting (as a Class A or Class B felony) – SVP & OAC
Child seduction - General & OAC
Child solicitation - General & OAC
Criminal confinement (victim under 18) – General
Criminal deviate conduct - SVP
Human trafficking (victim under 18) – General
Incest – General
Kidnapping (victim under 18) – General & OAC
Murder – General
Possession of child pornography - General
Promoting prostitution (as a Class B felony) – General
Promotion of human trafficking (victim under 18) – General
Rape - SVP
Sexual battery - General
Sexual misconduct with a minor - General
Sexual trafficking of a minor - General
Vicarious sexual gratification (as a Class D felony) – General
Vicarious sexual gratification (as a Class A, B, or C felony) - SVP
Voluntary manslaughter - General
In my next post, I will discuss the specific registration requirements, beginning with general offenders.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Registry
Who IS Required to Register?
In my last post, I discussed who may not be required to register as a sex or violent offender in Indiana. Now would be a good time to discuss who IS required to register with the Indiana Sex and Violent Offender Registry.
Offenders who have committed one or more of the following offenses, after the offense was added to Indiana’s Sex and Violent Offender Registration Act as a triggering offense, are required to register:
Child exploitation (IC 35-42-4-4(b)).
Child molesting (IC 35-42-4-3).
Child seduction (IC 35-42-4-7).
Child solicitation (IC 35-42-4-6).
Criminal confinement (IC 35-42-3-3), if V was under 18 and offender was not V’s parent/guardian.
Criminal deviate conduct (IC 35-42-4-2).
Human trafficking (IC 35-42-3.5-1(c)(3), if V was under 18.
Incest (IC 35-46-1-3).
Kidnapping (IC 35-42-3-2), if V was under 18 and offender was not V’s parent/guardian.
Murder (IC 35-42-1-1).
Possession of child pornography (IC 35-42-4-4(c)).
Promoting prostitution as a Class B felony (IC 35-45-4-4).
Promotion of human trafficking (IC 35-42-3.5-1(a)(2)), if V was under 18.
Rape (IC 35-42-4-1).
Sexual battery (IC 35-42-4-8).
Sexual misconduct with a minor as a Class A or Class B felony (IC 35-42-4-9).
Sexual trafficking of a minor (IC 35-42-3.5-1(b)).
Vicarious sexual gratification (IC 35-42-4-5)
Voluntary manslaughter (IC 35-42-1-3).
Attempt to commit any of the offenses listed above.
Conspiracy to commit any of the offenses listed above.
Certain juvenile offenders are also required to register as a sex or violent offender, as well as Indiana residents who committed an offense in another jurisdiction that was substantially equivalent to any of the above-listed offenses.
In my next post, I will begin discussing the restrictions that offenders must comply with if they are required to register.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
Indiana’s Sex and Violent Offender Registry
As you can probably imagine, most of my clients are very interested in the post-conviction process while they are incarcerated. Upon release, however, they usually have little incentive to challenge their convictions. This is not true, however, for people convicted of sex offenses. Many of my clients who are required to register as a sex offender have told me that it was not until being released from prison that they really felt the brunt of their punishment. That is when they are placed on the sex offender registry and begin to learn what complying with the requirements of the registry really involves.
Indiana created its sex offender registry effective July 1, 1994. The registry has been significantly expanded over the years with major revisions in 2001, 2003, 2006, and 2007.
Who is required to register?
Since the passage of the Indiana Sex Offender Registration Act (“INSORA”), the legislature has amended the act several times to add offenses that trigger the requirement to register. Not every offender convicted of an offense that today would trigger the requirement to register is in fact required to register. In April 2009, the Supreme Court of Indiana decided Wallace v. State, 905 N.E.2d 371 (Ind. 2009). In Wallace, the Court held that requiring a defendant who had committed a sex offense before the enactment of INSORA to register constituted retroactive punishment in violation of the Ex Post Facto Clause of the Indiana Constitution. Later, in Hevner v. State, 919 N.E.2d 109 (Ind. 2010), the Indiana Supreme Court held that where a defendant committed an offense before INSORA was amended to include that offense as one that triggers the requirement to register, requiring the defendant to register amounted to retroactive punishment and was unconstitutional.
In practical terms, what does this mean? The chart below illustrates who may not be required to register pursuant to Wallace/Hevner. If a defendant committed one of the listed offenses before the corresponding date, he may not be required to register.
If One of the Following Trigger Offenses was Committed Before July 1, 1994
Child exploitation
Child molesting
Child seduction
Child solicitation
Criminal deviate conduct (where victim was under 18)
Incest (where victim was under 18)
Rape (where victim was under 18)
Vicarious sexual gratification
If the Following Trigger Offense was Committed Before July 1, 1995
Sexual misconduct with a minor as a Class A or B felony
If the Following Trigger Offense was Committed Before July 1, 1996
Sexual battery (where victim was under 18)
If One of the Following Trigger Offenses was Committed Before July 1, 1997
Criminal deviate conduct (where victim was 18 or older)
Incest (where victim was 18 or older)
Rape (where victim was 18 or older)
Sexual battery (where victim was 18 or older)
If One of the Following Trigger Offenses was Committed Before July 1, 1998
Criminal confinement (where victim was under 18)
Kidnapping (where victim was under 18)
If One of the Following Trigger Offenses was Committed Before July 1, 2001
Attempt to commit any of the above triggering offenses
Conspiracy to commit any of the above triggering offenses
Sexual misconduct with a minor as a Class C felony
If the Following Trigger Offense was Committed Before July 1, 2005
Possession of child pornography (where defendant had prior unrelated conviction for same offense)
If One of the Following Trigger Offenses was Committed Before July 1, 2007
Human trafficking (where victim was under 18)
Murder
Possession of child pornography (even if defendant had no prior unrelated conviction for same offense)
Promoting prostitution as a Class B felony
Promotion of human trafficking (where victim was under 18)
Sexual trafficking of a minor
Voluntary manslaughter
If you believe that the Wallace or Hevner decisions may affect whether you are required to register as a sex or violent offender, you should seek the advice of an attorney or take legal action to determine your registration requirements.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
Successors
Is it possible to repeat a stage of the post-conviction process? It depends.
The previous set of entries was meant to provide a very basic overview of the avenues available to a criminal defendant if he wishes to challenge his conviction and/or sentence. Normally when a stage of the process is completed, a person cannot repeat that stage of litigation.
There are exceptions, however. In both the post-conviction and federal habeas stages, “successor” or second petitions can be filed in very rare circumstances. Usually these situations are limited to cases where an issue arises that could not have been raised previously in that stage of litigation.
Consider the following example. An offender was convicted of a crime, unsuccessfully challenged his conviction both on direct appeal and in a post-conviction relief action, and was released on parole after serving his sentence. He violated parole and was returned to prison. Now he wants to challenge his parole revocation. Such a challenge can usually only be brought in a post-conviction relief action. But he already completed that stage of litigation while serving his original sentence.
What can he do? He can start a successive post-conviction relief action. In Indiana, such an action is governed by Indiana Post-Conviction Rule 1(12). The process is almost identical to the original post-conviction relief process, with one exception. The defendant must first obtain permission from the Indiana Court of Appeals by showing a “reasonable probability that the petitioner is entitled to post-conviction relief” before he will be allowed to file a successive P.C.R. petition in the court of conviction.
If he is successful in obtaining permission from the Court of Appeals, he can then repeat the post-conviction stage by filing a petition in the court of conviction. If the Court of Appeals denies him permission, he is out of luck. He can always ask again for permission, but he will not be allowed to repeat that stage of litigation until he is given authorization.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Post-Conviction Process
Clemency: Good Luck with That!
Why do I say that? Because obtaining clemency is so rare that most criminal defense attorneys have probably never had a client granted clemency.
In my last two entries, I explained the very limited grounds upon which a person seeking a writ of habeas corpus in federal court may be successful. As is the case in every stage of the post-conviction process: for every step a person takes to challenge his conviction, it becomes less and less likely that he will prevail.
Nevertheless, clemency is another step available to some criminal defendants to seek relief from their sentences. But it is not available to all criminal defendants. Only those offenders who are serving an executed sentence of more than 10 years may petition for clemency while incarcerated. Other limitations also apply.
The process to seek clemency is fairly simple. A petition for clemency is filed with the Indiana Parole Board, who reviews the application. After a hearing, the Board makes its recommendation to the Governor. Under Article 5, Section 17 of the Indiana Constitution, only the Governor has the power to grant clemency, except in cases of treason and impeachment.
Even if denied clemency, a defendant can reapply, but only after a certain amount of time has passed since the denial.
The process discussed above applies to general clemency. Indiana also allows any incarcerated defendant the opportunity to seek medical clemency, if certain additional factors are met. The factors include the seriousness of the medical condition, whether the medical condition cannot be adequately treated while the offender is an inmate, and whether the medical condition effectively prevents the offender from engaging in future serious criminal activity.
In my experience, an offender must be suffering from a very serious or terminal illness before he will be granted medical clemency. Also, offenders must consider the consequences of obtaining medical clemency before applying. I have had clients in the past who may have qualified for medical clemency but chose not to seek it because, if obtained, they would no longer have state-funded health care for treatment of their illness. Unfortunately, for many offenders this is a concern.
In this introductory series of entries, I have attempted to provide a straightforward overview of the process available to defendants who wish to challenge their criminal convictions or sentences. I also created a flowchart, which can be found here, of the post-conviction process in Indiana. In my next entry, I will discuss an exception in the usually rigid process that allows a person the opportunity to proceed through a stage of the process a second time.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Post-Conviction Process
Three Defendants: Same Trial, Same Conviction, Different Outcomes
In 2003, a woman was killed inside her home in Indiana during an alleged robbery. Three people were charged with the crime: “Keith,” “Kenneth,” and “Sabrina.” They were tried together during a joint trial that lasted several days. Many of the witnesses who testified at trial were current or recovering drug addicts; their ability to accurately remember past events was repeatedly called into question by defense counsel. Nevertheless, the jury found all three defendants guilty of felony murder (in Indiana, felony murder is defined as a killing that occurs during the commission of certain offenses).
Keith, Kenneth, and Sabrina separately appealed their convictions to the Indiana Court of Appeals. Keith raised an issue on appeal that his co-defendants did not: whether the trial court erred in failing to instruct the jury on the elements of the underlying offense (in this case, robbery). As a result, Keith was granted a new trial by the Court of Appeals; his two co-defendants’ convictions were affirmed.
The State chose not to ask the Indiana Supreme Court to review the decision by the Court of Appeals to grant Keith a new trial. Thus, in early 2006 Keith’s case returned to the trial court for a second trial. Meanwhile, Kenneth and Sabrina, having completed the direct appeal stage of litigation, each moved on to the next stage and filed a petition for post-conviction relief. Both argued that their attorneys were ineffective for failing to challenge the incomplete jury instruction (the issue for which Keith was granted a new trial).
During Keith’s second jury trial, Sabrina agreed to withdraw her P.C.R. petition and testify against Keith at the second trial. Sabrina later received a reduction in her sentence. Keith was convicted a second time for felony murder.
Kenneth, meanwhile, was denied post-conviction relief in the trial court and appealed the denial. Eventually, the Indiana Supreme Court agreed to review his case. Ultimately, he was granted a new trial. The State is now considering asking the U.S. Supreme Court to review Kenneth’s case.
Keith’s second conviction for felony murder was affirmed, so he has now begun the post-conviction process.
I chose this case to highlight how seemingly identical cases can end with very different outcomes, depending on the steps taken (or not taken) through the process.
Sabrina’s journey through the process demonstrates that in some very limited circumstances, defendants with a strong P.C.R. issue (i.e., an issue that would likely get them post-conviction relief) can sometimes “negotiate” with the State to get a reduction in their sentence in exchange for dropping their P.C.R. claims. You might ask why, if a defendant has a good chance for post-conviction relief, would she drop her claims for a reduction in her sentence? Because, as Keith’s case demonstrates, no one can predict what will happen on retrial.
In Keith’s case, he was granted a new trial, which rarely happens on direct appeal. A new trial can be advantageous for a defendant because witnesses may be difficult to locate or may not remember things that they did years ago, and the same case tried to a different jury can lead to a different verdict. Unfortunately for Keith, however, he was again found guilty by a jury of felony murder.
Now in the post-conviction process, Keith is likely paying close attention to Kenneth’s case. Several years have passed since the first trial for these three defendants. What if new evidence is discovered that would tend to negate their guilt? For example, what if a witness changes her story or implicates another person in the crime? That information could be useful to Keith on post-conviction.
But a person cannot wait as long as he likes in the post-conviction stage before moving forward. Many judges require that defendants litigate their P.C.R. cases in a timely fashion. If Keith litigated only the issues that are present at this point, and he finds out after the fact that new evidence came to light at Kenneth’s retrial, he would have already completed the post-conviction stage. While there is a chance to come back to this stage of the process (which I will discuss in a future post), it is very rare for a defendant to be given such an opportunity.
Keith could always withdraw his P.C.R. petition and re-file it later. However, once he withdraws his petition, the habeas clock will begin running again. As I discussed in an earlier entry, if a defendant waits too long to refile he could lose the opportunity to challenge his conviction in federal court through the habeas process.
As the case of Keith, Kenneth, and Sabrina demonstrates, it is crucial that an attorney involved in any stage of the process understand how the other stages work.
In my next entry, I’ll wrap up discussion of the post-conviction process by providing a very basic overview of clemency. Most attorneys, myself included, have never handled a clemency petition on behalf of a client, and little information is available on the process itself.
Until next time,
Cara
DISCLAIMER: The information contained in this blog is intended for general information purposes only and should not be relied on as legal advice. The information may not apply to your specific situation, nor does it create an attorney-client relationship between you and Cara. Sound legal advice cannot be given without full consideration of all relevant specific information about your case.
In: All Posts, Post-Conviction Process