                                                                   FILED
                                                               Dec 21 2016, 6:29 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jeffrey E. Stratman                                       Gregory F. Zoeller
      Aurora, Indiana                                           Attorney General of Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael D. Cundiff,                                       December 21, 2016

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                15A05-1508-MI-1214
              v.                                                Appeal from the Dearborn Superior
                                                                Court.
                                                                The Honorable James D. Humphrey,
      State of Indiana,                                         Special Judge.
      Appellee-Respondent.                                      Cause No. 15D01-1407-MI-62




      Shepard, Senior Judge

[1]   Appellant Michael D. Cundiff appeals the denial of his petition for relief from

      his lifetime sex offender registration requirement. We conclude that Cundiff is

      required to register, but that residence restrictions enacted after his conviction

      do not apply to him.



      Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016            Page 1 of 8
                                   Facts and Procedural History
[2]   Cundiff was charged in October 2003 with child exploitation by possession of
                                                      1
      child pornography, a Class D felony, and child exploitation by dissemination
                                                                           2
      or exhibition of child pornography, a Class C felony. In March 2004, pursuant

      to a plea agreement, Cundiff pleaded guilty to the Class C charge, and the State

      dismissed the D felony. In accordance with the plea agreement, the court

      sentenced Cundiff in May 2004 to eight years, with six years suspended to

      probation.


[3]   On October 21, 2004, Cundiff was released from incarceration. In August

      2005, the State petitioned to revoke Cundiff’s probation alleging he had

      possessed pornographic material. Cundiff admitted the violation, and the court

      extended his probation for one year, to October 21, 2011.


[4]   In February 2009, Cundiff petitioned to be reclassified from lifetime sex

      offender registration to ten-year registration. Following two hearings, Cundiff’s

      petition was denied in September 2009. Cundiff did not appeal.


[5]   Subsequently, Cundiff again sought relief from application of the Indiana Sex

      Offender Registration Act (SORA) in July 2014 under a new cause number,

      initiating the present case. In September 2014, the trial judge recused, and the




      1
          Ind. Code § 35-42-4-4(c)(1) (2002).
      2
          Ind. Code § 35-42-4-4(b)(2).


      Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 2 of 8
      clerk appointed a special judge. Cundiff moved to vacate that appointment, but

      his motion was denied. Following a hearing, the court granted Cundiff’s

      petition for relief in January 2015.


[6]   In July 2015, the court granted the State’s motion to correct error and denied

      Cundiff’s petition. This appeal ensued.


                                                     Issues
[7]   Cundiff presents two issues:

              I. A threshold question: whether the court erred by denying his
              request to vacate the appointment of the special judge.
              II. Whether the court erred by denying his petition for relief from
              SORA.

                                    Discussion and Decision
                               I. Appointment of Special Judge
[8]   To initiate this case, Cundiff filed a petition pursuant to Indiana Code section

      11-8-8-22 (2013) in the Dearborn Superior Court. Judge Cleary of that court

      recused due to his participation as a deputy prosecutor in Cundiff’s prior case

      and directed appointment of a special judge pursuant to Indiana Criminal Rule

      12(B) and Local Rule 15-AR 7D. The Clerk then appointed Judge Humphrey

      of the Dearborn Circuit Court.


[9]   Judge Humphrey set Cundiff’s petition for hearing on October 31, 2014. Prior

      to the start of the hearing, Cundiff objected to Judge Humphrey’s appointment

      because it was based upon state and local rules of criminal procedure rather

      Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 3 of 8
       than the rules of civil procedure. Judge Humphrey took the objection under

       advisement and later denied Cundiff’s request. On appeal, Cundiff claims the

       trial court erred in following the special judge selection process as set forth in

       the rules of criminal procedure.


[10]   Cundiff’s burden as the appellant is to demonstrate that the probable impact of

       the trial court’s alleged error in appointing a special judge affected his

       substantial rights. See Ind. Appellate Rule 66(A). Cundiff has not met this

       burden, for he failed to allege any deprivation of a substantial right. Indiana

       Code section 11-8-8-22(d) authorizes filing a petition in the circuit or superior

       court of the county in which the offender resides. Dearborn County’s Local

       Rule 15-AR 8A, which Cundiff cites in his brief, makes the judge of the

       Dearborn Circuit Court eligible for appointment as special judge in civil

       actions, just as he is in criminal actions. Thus, we conclude that error, if any,

       was harmless.


                                            II. SORA Petition
[11]   We thus turn to Cundiff’s claim that the trial court wrongly denied his petition

       for relief from his lifetime sex offender registration requirement.


[12]   We review the trial court’s decision for an abuse of discretion. See Ind. Code §

       11-8-8-22(g); Lucas v. McDonald, 954 N.E.2d 996 (Ind. Ct. App. 2011) (trial

       court’s denial of petition for relief under Indiana Code section 11-8-8-22 is

       reviewed for abuse of discretion). An abuse of discretion occurs when the trial



       Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 4 of 8
       court’s decision is clearly against the logic and effect of the facts and inferences

       supporting the petition for relief. Lucas, 954 N.E.2d 996.


[13]   Cundiff first argues that he “was not required to register for life until after Ind.

       Code §11-8-[8]-19(c) was enacted” in 2006 and that, pursuant to our Supreme
                                                                                                  3
       Court’s decision in Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013), this

       retroactive imposition of a lifetime registration period violates both the federal

       and the state prohibitions against ex post facto laws. Appellant’s Br. p. 13.


[14]   Effective January 1, 2003, a defendant eighteen years or older who is convicted

       of child exploitation of a child less than twelve years old is required to register
                                            4
       as a sex offender for life. The statute requiring registration for life for Cundiff’s
                                                        5
       offense was first enacted in 2001.


[15]   In 2003, Cundiff committed and was charged with two counts of child

       exploitation, and, in 2004, he pleaded to one count of child exploitation under

       the code as applicable in 2003. There is no dispute that Cundiff was twenty-one




       3
         Gonzalez presents a different set of facts than those existing in this case. During the ten-year period of
       Gonzalez’s required registration as a sex offender after he had fully served his sentence and probation, the
       statutory registration requirement was amended to require lifetime registration for certain circumstances,
       including those of Gonzalez. Our Supreme Court determined that, as to Gonzalez, the Ex Post Facto Clause
       of the Indiana Constitution prohibited retroactive application of the lifetime registration requirement of
       SORA.
       4
        See P.L. 116-2002, §§ 16, 8; Ind. Code §§ 5-2-12-13(c), -4(a)(4) (2003), now codified at Ind. Code §§ 11-8-8-
       19(c) (2015), -5(a)(4) (2016).
       5
           See P.L. 238-2001, §§ 13, 4; Ind. Code §§ 5-2-12-13(c), -4(a)(4) (2001).

       Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016                          Page 5 of 8
       years old at the time of this crime and that his victims were less than twelve

       years old. Therefore, from the time Cundiff committed his offense to the

       present time, he has been required to register for life under SORA. There is no

       violation of the prohibition against ex post facto laws.

[16]   Moreover, pursuant to Indiana Code section 11-8-8-22(b) and (c), an offender

       may petition the court for less restrictive sex offender registration conditions if,

       due to a change in law after June 30, 2007, an individual engaging in the same

       conduct would not be required to register or would be required to register but

       under less restrictive conditions than the offender is required to meet. There

       has been no change in the law to allow for less restrictive registration conditions

       for an offender in Cundiff’s circumstances. As demonstrated above, from the

       time he committed this offense to the present, Cundiff has been required to

       register for life. We find no error with the trial court’s decision.


[17]   Cundiff next claims that the provisions of Indiana Code section 35-42-4-11,

       specifically its residency restrictions, do not apply to him. Following Cundiff’s

       conviction in 2004, the legislature added Indiana Code section 35-42-4-11 as a

       new section to the Code. See P.L. 6-2006, §8. Section 11 defines an “offender

       against children,” in part, as a person required to register as a sex offender and

       who has been convicted of child exploitation and makes it a crime for such an

       offender to reside within 1,000 feet of a school, a youth program center, or a

       public park, or establish a residence within one mile of the residence of the

       victim. Section 10 of Public Law 6-2006 is a non-code provision stating that

       Indiana Code section 35-42-4-11 applies “only to crimes committed after June

       Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 6 of 8
       30, 2006.” Cundiff committed child exploitation in 2003. Accordingly, the

       Section 11 residency restrictions do not apply to Cundiff. See Bleeke v. State, 982

       N.E.2d 1040 (Ind. Ct. App. 2013) (holding that residence restriction provision

       of Ind. Code § 35-42-4-11 did not apply to Bleeke, who committed sexual

       deviate conduct in 2002). On transfer, our Supreme Court summarily affirmed

       the portion of this Court’s opinion addressing Section 11. See Bleeke v. Lemmon,

       6 N.E.3d 907 (Ind. 2014).


[18]   A decision of this Court that involved a pre-2006 conviction for exploitation

       and a post-2006 conviction for residing within the prohibited zone held that the

       new conviction did not violate the Ex Post Facto Clause. Sewell v. State, 973

       N.E.2d 96 (Ind. Ct. App. 2012). The appellant in Sewell apparently did not ask

       the panel to consider whether Section 11 actually applied to him as a matter of

       statutory construction. Cundiff does present that statutory question, and we

       think he and the Bleeke court are correct about it. Accordingly, we reverse the

       trial court on this issue.


                                                 Conclusion
[19]   The trial court did not err in denying Cundiff’s request to vacate the

       appointment of the special judge. However, the trial court did err by

       determining that the residency restrictions of Indiana Code section 35-42-4-11

       apply to Cundiff. Therefore, we remand this case to the trial court to issue an

       order so recognizing.


[20]   Affirmed in part, reversed and remanded in part with instructions.

       Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 7 of 8
Vaidik, C.J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 15A05-1508-MI-1214 | December 21, 2016   Page 8 of 8
