Man remains on sex offender list, but residency restrictions not applicable

A Dearborn County man will have to keep his name on the Indiana Sex Offender Registry for the rest of his life but will not face certain residency restrictions after the Indiana Court of Appeals affirmed in part the denial of his petition for relief.

In Michael D. Cundiff v. State of Indiana, 15A05-1508-MI-1214, Michael Cundiff was charged with two child exploitation counts related to child pornography, one as a Class C felony and one as a Class D felony, in October 2003. He pleaded guilty to the Class C felony pursuant to a plea agreement in May 2004 and was sentenced to eight years, with six years suspended to probation.

After his petition for reclassification to a 10-year sex offender registration requirement was denied, Cundiff moved for relief from application of the Indiana Sex Offender Registration Act under a new cause. Dearborn Superior Judge Jonathan Cleary recused himself from the case due to his participation in Cundiff’s prior case as a deputy prosecutor, so Dearborn Circuit Judge James Humphrey was appointed as a special judge.

The court denied Cundiff’s motion to vacate the appointment of the special judge but granted his petition for relief.  The court then granted the state’s motion to correct error and denied Cundiff’s petition in July 2015.

Cundiff appealed, arguing first that the trial court erred in following the special judge selection process as set forth in the rules of criminal procedure, rather than civil procedure. But Senior Judge Randall Shepard wrote in an opinion Wednesday that Cundiff had failed to meet his burden proving that the trial court’s alleged error affected his substantial rights because he failed to allege any deprivation of a substantial right.

Shepard wrote that Dearborn County Local Rules 15-AR 8A makes the judge of the Dearborn Circuit Court eligible for appointment as a special judge in both civil and criminal actions. Thus, any alleged error was harmless.

Cundiff further argued that the trial court wrongly denied his petition for relief from the lifetime sex offender registration requirement because he “was not required to register for life until after Ind. Code 11-8-[8]-19(c) was enacted,” in 2006, so the retroactive imposition of the lifetime registration requirement violates federal and state prohibitions against ex post facto laws.

But Shepard wrote that effective Jan. 1, 2003, a defendant who was at least 18 years old when he was convicted of child exploitation of a child younger than 12 was required to register for life, so there could be no violation of ex post facto laws because Cundiff was 21 years old at the time of his conviction.

But Cundiff further argued that the sex offender residency restrictions laid out in I.C. 35-42-4-11 could not apply to him because that code only places residency restrictions on crimes committed after June 30, 2006. Because Cundiff committed his offenses in 2003, Shepard agreed that the residency restrictions could not apply to him. The case was remanded to the trial court to issue an order recognizing that the residency restrictions do not apply to Cundiff.