Michael D. Cundiff v. State of Indiana
66 N.E.3d 956
| Ind. Ct. App. | 2016Background
- In 2003 Cundiff (age 21) was charged with two counts of child exploitation (victims under 12); in 2004 he pleaded guilty to one Class C count and was sentenced to eight years with six suspended.
- He was released in October 2004, violated probation in 2005, and had his probation extended; prior petitions (2009) to reduce registration to ten years were denied.
- In July 2014 Cundiff filed a petition under Ind. Code § 11-8-8-22 seeking relief from lifetime sex-offender registration and related restrictions; a special judge was appointed after the original judge recused.
- The trial court initially granted relief in January 2015 but, after the State’s motion to correct error, denied the petition in July 2015; Cundiff appealed.
- The Court of Appeals reviewed (1) whether appointment of the special judge was improper and (2) whether SORA lifetime registration and post-2006 residency restrictions applied to Cundiff.
Issues
| Issue | Plaintiff's Argument (Cundiff) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether appointment of special judge was improper | Appointment used criminal rules rather than civil rules, so judge selection was invalid | Appointment was authorized by applicable rules and local practice; no substantial-rights prejudice | Any error was harmless; appointment upheld |
| Whether lifetime registration and post-2006 residency restrictions apply | Lifetime registration was imposed retroactively in 2006 (ex post facto); residency restrictions (Ind. Code § 35-42-4-11) should not apply because crime was in 2003 | Lifetime registration requirement applied to Cundiff’s 2003 offense; residency restrictions enacted in 2006 do not apply to pre-2006 crimes | Lifetime registration did not violate ex post facto and remains required; residency restrictions of § 35-42-4-11 do NOT apply to Cundiff (reversed in part and remanded) |
Key Cases Cited
- Lucas v. McDonald, 954 N.E.2d 996 (Ind. Ct. App. 2011) (standard of review for § 11-8-8-22 petitions)
- Bleeke v. State, 982 N.E.2d 1040 (Ind. Ct. App. 2013) (residency restriction § 35-42-4-11 does not apply to pre-2006 offenses)
- Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014) (supreme court affirmed portion addressing § 35-42-4-11 applicability)
- Sewell v. State, 973 N.E.2d 96 (Ind. Ct. App. 2012) (addressed ex post facto challenge where new residency conviction was post-2006)
- Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013) (held retroactive imposition of lifetime registration can violate ex post facto depending on facts)