Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals agreed with a man challenging his lifetime registration as a sex offender that the law as applied to him violates the Indiana Constitution’s prohibition against ex post facto laws. But he lost a similar challenge to the unlawful-entry statute that prohibits him from entering school property.
Richard McVey was convicted of molesting his half-sister for acts that occurred between October 1998 and August 2001. He served eight years in the DOC, but returned in 2012 after violating his probation. He was then released to parole in 2014. At the same time, he challenged his convictions seeking post-conviction relief, and was partially successful. The PCR court vacated two counts, leaving only Count III, Class C felony child molesting, in which McVey admitted that his stepsister had masturbated him sometime in 2001, before the requirement for lifetime registration took effect that July.
Then McVey filed two petitions: one seeking to be removed from the lifetime sex-offender registry, and one asking to be exempt from the unlawful-entry statute because he was convicted of child molesting before that statute went into effect. The unlawful-entry statute makes it a crime for a person who is a registered sex offender and who is convicted of child molesting to enter school property. The trial court denied both petitions.
At his trial, although McVey did not testify as to when the masturbation incident occurred, a state police officer did, saying during an interview with McVey, McVey admitted the incident occurred approximately 12 to 14 months prior. That would have placed it between March and May 2001, before the lifetime registration amendment took effect.
Thus, McVey must only register for 10 years, the law in effect at the time the crime was committed, the COA held. His 10-year registration period started when he was released from prison on July 15, 2011, and is extended for the 730 days he was incarcerated for violating probation, Chief Judge Nancy Vaidik wrote.
The judges found using the seven-factor test outlined in Mendoza-Martinez that the unlawful-entry statute, which took effect July 1, 2015, is not an ex post facto law as applied to him. McVey wants to obtain his commercial driver’s license from Blue River Career Programs, but this is considered a school property. McVey chose to attend this school after the statute went into effect in July, Vaidik noted. In addition, the judges found factor 7, which addresses whether the statute appears excessive in relation to the alternative purpose assigned, is non-punitive as applied to him as McVey was convicted of a crime against a child.
The case is Richard J. McVey v. State of Indiana, 73A04-1601-CR-12.
