Anthony Mark Sewell v. State of Indiana
2012 Ind. App. LEXIS 413
| Ind. Ct. App. | 2012Background
- Sewell, previously convicted of child molesting (Class B) in 2001, was released from DOC in 2007 and placed on probation with sex-offender registration obligations.
- By July 2011 Sewell had registered seventeen times; registry uses a map to check proximity to youth-oriented locations.
- Sewell received an information packet about registration and the 1,000-foot rule restricting residence near youth program centers, and he repeatedly signed the packet.
- In June 2011 Sewell sought to move to 42 West Brookville Road, which the registry indicated was within 1,000 feet of a church (Community Church of Fountaintown).
- On July 5, 2011 Sewell registered at 42 Brookville Road with Pastor Smith present; the registry determined the address violated the 1,000-foot rule due to the church’s youth program.
- A sheriff’s deputy later warned Sewell that residing at that address violated the law; Sewell continued to occupy and re-register the residence, and the State charged him with residing within 1,000 feet of a youth program center; he was convicted after a bench trial and sentenced to 1.5 years with 6 months suspended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the church qualifies as a youth program center | Sewell argues the church may not be a youth program center | Sewell contends insufficient proof church is a youth program center | Church proved as a youth program center for §35-42-4-11 purposes |
| Whether there was sufficient evidence Sewell knowingly resided within 1,000 feet | State argues Sewell knowingly resided within 1,000 feet despite conflicting explanations | Sewell argues confusion and lack of awareness; claims no intent to violate | Evidence shows Sewell chose to reside within 1,000 feet with knowledge of the rule |
| Whether the statute as applied violates ex post facto provisions | State asserts no ex post facto violation; statute applies to conduct after enactment | Sewell relies on Pollard to claim ex post facto violation as applied | statute does not violate ex post facto provisions as applied to Sewell. |
Key Cases Cited
- Whatley v. State, 928 N.E.2d 202 (Ind. 2010) (definition of youth program center; programs for under 18 may be regular)
- Pollard, 908 N.E.2d 1145 (Ind. 2009) (ex post facto analysis for residency statute)
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (ex post facto framework; punishment and warning)
- Armstrong v. State, 848 N.E.2d 1088 (Ind. 2006) (ex post facto considerations)
- United States v. Hemmings, 258 F.3d 587 (7th Cir. 2001) (elements vs. retroactivity; antecedent facts not ex post facto)
- United States v. Brady, 26 F.3d 282 (2d Cir. 1994) (analysis of whether law changes consequences of pre-enactment acts)
- Cox v. Hart, 260 U.S. 427 (1922) (ex post facto analysis)
- Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) (historical ex post facto standard)