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1 l RCHARD STATE P. WALLACE, Appellant (Defendant Below), V. OF NDANA, Appellee (Plantff Below). N THE COURT OF APPEALS OF NDANA CAUSE NO. 49A CR-498 An appeal from: Maron Superor Court, Crm Dvson, Rm. No. 15 Lower Court Cause No.: 49F FD The Honorable Lsa Borges, Judge Fr::rj BREF OF APPELLANT Kathleen M. Sweeney ( ) Attorney at Law 155 E. Market Street, Sute 400 ndanapols, ndana TX: Attorney Rchard for Defendant-Appellant P. Wallace

2 N THE COURT OF APPEALS OF NDANA CAUSE NO. 49A CR-498 RCHARD P. WALLACE, Appellant (DefendantBelow), An appeal from: Maron Superor Court, Crm Dvson, Rm. No. 15 Vl. Lower Court Cause No.: 49F FD STATE OF NDANA, Appellee (Plantff Below). The Honorable Lsa Borges, Judge BREF OF APPELLANT Kathleen M. Sweeney ( ) Attorney at Law 155 E. Market Street, Sute 400 ndanapols, ndana TX: Attorney Rchard for Defendant-Appellant P. Wallace

3 TABLE OF CONTENTS Statement of the ssues... 1 Page Statement of the Case... 2 Statement of the Facts... 3 Summary of the Argument... 7 Argument The State faled to prove that Wallace had not regstered n calendar year Current revsons and applcatons that have been made to the sex offender regstry have become so expansve that the regstry and ts related crmnal sanctons are puntve and n volaton of ex post facto laws.. t s a reasonable nference that the State has forfeted ts rght to prosecute Wallace for falure to regster because that ssue was negotated n hs pror plea agreement. Concluson Certfcate of Servze Abstract of Judgment Order denyng Defendant's Moton To Dsmss

4 TABLE OF AUTHORTES Cases Pa_e Burkes v. State, 445 N.E.2d 983 (nd. 1983), Commonwealth v. Wllams, 832 A. 2d 962, 985 (Pa. 2003) Grffn v. State, 756 N.E.2d 572 (nd. Ct. App. 2001) ) Justce v. State, 530 N.E.2d 295 (nd. 1988)... 8 Manlove v. State (1968), 250 nd. 70, 232 N.E.2d McMahe! v. State, 609 N.E.2d 1175 (nd. Ct.App. 1993) State v. D./t_.Z, 674 N.E.2d 585 (nd. Ct.App. 1996)... 9 State v. Elers, 697 N.E.2d 969 (nd. Ct. App. 1998)... 9 Smth v. Doe, 538 US 84 (2003) Smth v. State, 717 N.E.2d 239 (nd. Ct.App. 1999) Spencer v. O'Connor, 707 N.E.2d 1039 (nd.ct.app.1999)... 7, 10, 11, 14 n re Wnshp, 397 U.S. 358 (1970)... 9 Rules: nd. Appellate Rule 46(A)(10)... 3 Statutes: nd. Code nd.code _ nd. Code nd.code :... 11

5 nd.code : nd. Code nd. Code " nd. Code , 11 nd. Code Consttutonal: ndana Consttuton, Artcle, Unted States Consttuton, Artcle,

6 N THE COURT OF APPEALS OF NDANA CAUSE NO. 49A CR RCHARD P. WALLACE, Appellant (Defendant Below), V. An appeal from: Maron Superor Court, Crm Dvson, Rm. No. 15 Lower Court Cause No.: 49F FD STATE OF NDANA, Appellee (Plantff Below). The BREF OF APPELLANT Honorable Lsa Borges, Judge STATEMENT OF THE SSUES Whether the State faled to prove that Wallace had not regstered n calendar year 2004? Whether current revsons and applcatons that have been made to the sex offender regstry have become so expansve that the regstry and ts related crmnal sanctons are puntve and n volaton of Ex PostFacto laws? Whether t s a reasonable nference that the State has forfeted ts rght to prosecute Wallace for falure to regster because that ssue was negotated n hs pror plea agreement?

7 Nature of the Case STATEMENT OF THE CASE Ths s a drect appeal n whch Rchard P. Wallace was convcted by a jury of one count of falure to regster as a sex offender, class D felony. Course of the Proceedngs On January 6, 2004, Rchard Wallace was charged wth one count of falure to regster as a sex offender n volaton of nd. Code (2004) 2. [A 25] On October 8, 2004, Wallace fled a moton to dsmss the charge. [A 42] On Aprl 19, 2005, a hearng was held on Wallace's moton to dsmss [A 10-CCS; T Vol 249] whch the court dened by wrtten order on May 18, 2005 [A 91]. On January 31, 2007, the jury tral began and on the same day, a gulty verdct was retumed on the sole count as charged. [A 170; T Vol 1 219] Dsposton n the Tral Court On Aprl 1, 2007, Wallace was sentenced on Count, falure to regster as a sex offender, class D felony, to 545 days executed wth 543 days suspended, 545 days probaton ncludng the payments of fees and costs, 80 hours of communty servce, mental health evaluaton and treatment, and regstraton as a sex offender. [A 19-CCS; A -22; T Vo ] ' Transcrpt wll be desgnated as "T"; Appendx as "A"; and the sngle volume of Exhbts as "Ex." 2 n 2006, ths statute was repealed and replaced by nd. Code

8 The Court stated 3 : Ok. And, and 've knd... 've really gone back and forth, and umm certanly don't thnk t's approprate to gve any further punshment wth regard to the pror crme. That... that's over. Umm, that's somethng that's n your past. Umm, t's because you have a crmnal hstory, would fnd that your crmnal hstory s aggravatng crcumstance. Umm, and that's somethng that t just s. would fnd as a mtgatng factor, however, that t would create a hardshp on your famly f you are ncarcerated n the department of correctons, because you have a great job, where you're earnng eghty-thousand plus a year. You're payng thrteen-hundred dollars a month n chld support. And you have chldren who are at the age that they are gong to be gong to college. Umm, f you lose that job, umm thnk that that would create a hardshp, and thnk that's not what ths s ntended to do, and so 've gone back and forth wth what ought to do and what thnk s the rght thng, umm and my ntal thought was that was gong to gve you a perod of home detenton, umm but because the state's not askng for ncarceraton, l'm not gong to do that. am gong to fnd that l want probaton for the perod of tme that gve you sentence, so the sentence wll be for fve hundred and forty-fve days, and that wll all be suspended and you'll be placed on probaton for those fve hundred and forty-fve days. Umm, have every reason to beleve that you wll perform well whle you are on probaton, umm you are to mantan your chld support, at t's current level, or whatever s ordered by the court that has jursdcton over that matter. Umm, you are to partcpate n a mental health evaluaton and counselng, because umm, because thnk t's somethng that from readng your ps, and readng the addendum even that was presented, umm beleve that t s somethng that can help you, and want you to take advantage of t. There's a way to take advantage of t, because you don't have a choce by beng ordered to do t, you know, you'll... thnk you'll do t, and thnk that know you went through counselng before wth Bran Ross, and n your nformaton that revewed you sad that you found t helpful. realze that was targeted n a dfferent drecton. Ths probaton s targeted n two drectons, one for you to gve back to the communty, and also for you to do some work to help yourself, and so that' some of the thngs want you to do s that mental health evaluaton and counselng, the treatment that they ask you to do. see no reason n your hstory, or n any allegatons for random urnalyss or any drug testng. don't see that there's any knd of problem wth that. No substance abuse ssues that can dentfy. Umm, would lke you to do eghty hours of communty servce work whle you're on probaton, and would lke that to do be done n work wth adult lteracy, because thnk that you have some thngs that you can gve back to the communty and that's a way you can do that, thnk partcularly f probaton can.., can place you where you can do that, that would be my preference. Ok, umm wth regard to your moton regardng regstraton. dd some research, and the followng s what my opnon s wth regard to that and t'll be my fndng as well. Frst, you are an offender as defned 3 Appellate Rule 46(A)(10) requres a copy of the sentencng order n the bref. However, as a practce, the Maron Superor Courts do not produce such orders, and therefore the statement n the transcrpt s the best record of the sentencng order and s reproduced heren. An Abstract of Judgment s attached to the end of the bref.

9 by ndana Code c, you are requred to regster for lfe now, because you were at least eghteen years of age at the tme of the offense and the vctm n that 1988 convcton was less than twelve years of age at the tme of the crme. Umm, know that you clam that you dd not have to regster because t was not a negotated term of your plea agreement, however n revewng the Court of Appeals, and the Unted State's Supreme Court and Seventh Crcut cases, fnd the followng; an on-pont case, whch s n re: the matter of G.B. at 709 N.E. 2 "d, 352 whch s a 1999 court of appeals 2 "d dstrct case (sc). n that case, the court was dealng wth a juvenle defendant who had umm, who was placed on the sex offender regstry, after hs release from the department of correctons, and realze that that partcular, the facts of that care are not exactly on-pont, but what they say n that case s that under the sex offender regstraton act an ndvdual must be placed on the regstry f he or she meets the statutory defnton of' offender. State may not enter nto, nor may the tral court accept a plea agreement that purports to alter or nullfy the operaton of the act, and here's the heart of t. The fact that GB's plea agreement dd not specfcally refer to the regstry s rrelevant. The tral court must place GB on the regstry f the evdence at the tme of hs release support a fndng that he s lkely to be a repeat sex offender, now that's as to a juvenle and hs adjudcaton, under the law and because of that, draw the gudance from the court of appeals opnons that your plea agreement umm, and whether that requrement to regster was negotated term s rrelevant, and 'll also pont out Freje vs. State at 709 N.E. 2 nd 323, where the ndana Supreme Court sad, regardless of the language of a plea agreement, certan condtons must also be mposed accordng to statute. All probatoners must pay a probaton fee, those convcted of operatng a vehcle whle ntoxcated must pay and alcohol and drug countermeasures fee, and those convcted of sex offenses must regster wth local law enforcement. Umm, realze that you're not challengng the requrement as ex-post-facto, other than by nference, umm and because there s n that nference, would refer you to Smth v. Doe at 538 U.S. 84, a 2003 Unted State's Supreme Court case that held that a sex offender that sex offender regstraton statute do not volate the ex-post-facto clause f ther ams are not puntve. So then we look to some more case law. On May the thrty-frst of 2006, the Seventh Crcut Unted State's Court of Appeals n Stewart vs. Foltz at ctes Spencer v. O'Conner, 707 N.E. 2 nd 1039, whch s a 1999 ease, wheren the ndana 2 nd dstrct court of appeals determned that the ndana Sex Offender Regstry's notfcaton provson was ntended to be non-puntve, and dd not fnd reportng requrements rose to a consttutonal volaton, so n lght of these facts, and these decsons, fnd no compellng reason to forego your requrement to regster untl 'm guded by the court of appeals n some other fashon, so fnd that you must fulfll your requrement to regster as a sex offender accordng to ndana law, and that wll be one of the condtons of your probaton. Umm, have a refer'al form for you to take.wth you over to probaton, and want you to do that today, and make an appontment to begn workng through the probaton requrements. [T Vol L to 244] -Contnued...

10 !!! l COURT: Fnes and court costs. 'll assess a fne n the amount of a hundred dollars, and umm, umm, court costs n the amount of a hundred and fl_y-nne dollars. [T Vol L 21-23] A tmely Notce of Appeal was fled on May 7, [A 1] STATEMENT OF THE FACTS Tral n 1988, Rchard P. Wallace ("Wallace") was charged n Maron County, ndana wth two counts of chld molestng, as a class B felony and class C felony. [Ex 3] After months of negotaton on February 5, 1989, the State agreed to allow Wallace to plead gulty to chld molestng as a class D felony. 4 [T Vol 1 81, ; Ex. 3] The tral court sentenced Wallace to a communty correctons program for 180 days along wth other condtons of probaton whch he successfully completed n [Ex 3] t was part of the negotated deal that there would not be a commtment to the ndana Department of Correctons. T Vol 176, 178] Wallace beleved that at the tme of hs convcton there was a regstry for offenders who had been sentenced to serve a term of mprsonment at the Department of Correctons. T Vol 177] Wallace beleved ths s the reason nsttutonal ncarceraton was not ncluded n the plea and why he beleved why he was not requred to regster. T Vol 171, ] n fact he had no notce of any duty to regster untl [T Vol 172] n 2003, Wallace's ex-wfe called polce to tell them that Wallace was lvng n ndanapols, that he was a convcted sex offender, and that he had never regstered. [T Vol 1 91 ] Lsa Redenbach, Sex Offender Regstry Coordnator for the ndanapols 5

11 PolceDepartment, now known as ndanapols Metropoltan Polce Department (MPD), was responsble for mantanng the lsts of sex offender regstrants lvng n Maron County ncludng daly updatng of the web ste, and takng photos and fngerprnts of regstrants. T Vol 1 88] Based on the nformaton provded by Wallace's ex-wfe, Redenbach pulled the records, revewed them, and determned that because Wallace's crmnal conduct nvolved a mnor less than 12 years of age, he was requred to regster. Havng made that determnaton, Redenbach sent Wallace a letter, dated November 20, 2003, drectng hm to regster wth the ndanapols Polce Department wthn seven (7) days. [Ex 1] Havng receved no response from Wallace, Redenbach, on December 28, 2003, sent another letter to Wallace. [T Vol 1 95; Ex 2] Wth recept of the second letter, Wallace made an appontment wth Redenbaeh. T Vol 1 97, 174] Wallace showed her hs plea agreement and explaned hs poston that he was not requred to regster. [T Vol 1 98] He also told her that hs "deal" was to exclude ncarceraton and that he had never been n the Department of Correctons. [T Vol ] Redenbach drected Wallace to regster whch he refused to do. T Vol 99, 118] As a result of Wallace's refusal, the charge was fled. [T Vol 138] Moton To Dsmss Hearng On October 8, 2004, Wallace fled a moton to dsmss the charge argung that because hs probaton had termnated n 1992, he was not subject to regstraton. [A 42] The State responded that Wallace dd not'qualfy for the statutory lmtaton. [A 44] 4 The stpulaton states Wallace was convcted ofa D felony whch appears to be n conflct wth Exhbt 3, the plea agreement, whch states he was pleadng to a class C felony. No abstract of judgment was ntroduced.

12 On Aprl 19, 2005, the tral court heard argument [T Vol 249] and on May 18, 2005, ssued a wrtten order denyng, wthout reasons, the moton [A 91 ]. At the begnnng of the tral, Wallace agan renewed the moton to dsmss and made a contnung objecton. [T Vol 1 9] At both the moton to dsmss hearng and agan at tral, Wallace rased consttutonal volatons of state and federal ex post facto laws and prncples of contract law. [T Vol l ; T Vol ] SUMMARY ARGUMENT Frst, n order to prove Wallace faled to regster, the State must ether prove that he faled to regster wthn seven (7) days of release from a penal nsttuton or that he faled to regster n a calendar year or annually. t was unrefuted that Wallace was never ncarcerated n a penal nsttuton. Therefore, he could be convcted only f he faled to regster wthn a calendar year. The State charged the volaton as occurrng on January 5, 2004, whch also was unrefuted. t s mpossble that on January 5, 2004 for Wallace to have faled to regster for the calendar year snce t was a mere fve (5) days old. Second, Wallace's convcton volates the state and federal consttutonal prohbtons aganst ex post facto laws. Wallaee's convcton s based upon a duty to regster. Ths court has prevously held that the duty to regster was not an ex post facto volaton. Spencer v. O'Connor, 707 N.E.2d 1039 (nd.ct.app. 1999). However, the very restrctons the court reled upon have been dscarded so that ths cvl statute has taken on crmnal law characterstcs. Moreover, because of the expansveness of the regstry, the crmnal charge has become lnked to t creatng an mpermssble punshment aspect.

13 Thrd, there s a reasonable nference that Wallace beleved that the noton of a regstry was consdered whch s why hs plea agreement specfcally excluded ncarceraton at a penal faclty. Contract prncples preclude hs subsequent prosecuton. ARGUMENT 1 The State faled to prove that Wallace had not regstered n calendar year Standard of Revew "When revewng such a challenge [suffcency of the evdence], we wll nether wegh the evdence nor judge the credblty of the wtnesses. Burkes v. State (1983), nd., 445 N.E.2d 983, 986, and we wll consder only the evdence favorable to the judgment, together wth all reasonable nferences flowng there from. ld. at f there s substantve evdence of probatve value to support the judgment, t wll not be dsturbed. ld. But we hasten to add that, even though greatly lmted n our scope of revew, we must stll determne whether a reasonable trer of fact could conclude that the defendant was gulty beyond a reasonable doubt. See, Justce v. State (1988), nd., 530 N.E.2d 295, 296; Manlove v. State (1968), 250 nd. 70, 232 N.E.2d 874, " McMahel v. State, 609 N.E.2d 1175, 1177 (nd. Ct.App. 1993). Analyss Wallace was charged wth falure to regster as a sex offender n volaton of nd. Code (2004). 5 The chargng nformaton stated, n pertnent part, that 5 The current verson s nd. Code (P.L , Sec.42).

14 ... On or about Jan. 5, 2004, n Maron County, State of ndana, RCHARD P. WALLACE, havng a duty to regster as a sexual offender, dd knowngly or ntentonally fal to regster as a sexual offender, wthn seven (7) days of release from Penal nsttuton or mantan ther annual regstraton requrement wth Local Law Enforcement Authorty; [A 25] Testmony was clear that Wallace was never ncarcerated n a penal nsttuton. The only provson that Wallace could be convcted under was the falure to regster "annually." The term "annually" s not defned n the statute. "Undefned words n a statute are gven ther plan, ordnary and usual meanng." State v. Elers, 697 N.E.2d 969, (nd. Ct. App. 1998)(ntemal ctatons omtted). Moreover n gvng a statutory term ts plan, ordnary and usual meanng, "courts may use Englsh language dctonares as well as consder the relatonshp wth other words and phrases." d. ctng State v. D.M.Z., 674 N.E.2d 585,588 (nd. Ct.App. 1996). The Merram-Webster On-Lne Dctonary defnes "annually" n pertnent part as 1 : coverng the perod of a year <annual ranfall> 2 : occurrng or happenng every year or once a year : YEARLY <an annual reunon> 3 : completng the lfe cycle n one growng season or sngle year <annual plants> - an.nu.al-ly adverb, www. m-w. corn/dctonary/annually The State charged that Wallace volated the annual regstraton requrement on January 5, The plan readng can only be that Wallace had faled to mantan hs annual regstraton for the calendar year t s mpossble for the State to have submtted proof beyond on a reasonable doubt on ths ssue snce calendar year 2004 was merely fve (5) days old. Cf. n re Wnshp, 397 U.S. 358, 364 (1970) ("T]he Due Process Clause protects the accused aganst convcton except upon proof beyond a

15 reasonable doubt of every fact necessary to consttute the crme wth whch he s charged."). Because the State faled to prove a volaton occurred n full calendar year 2004, there s nsuffcent evdence to uphold hs convcton. 1 Current revsons and applcatons that have been made to the sex offender regstry have become so expansve that the regstry and ts related crmnal sanctons are puntve and n volaton of ex post facto laws. Background n 1999, ths court found that the duty to regster and the sex offender regstry tself dd not volate state and federal ex post facto laws. Spencer v. O'Connor, 707 N.E.2d 1039, (nd.ct.app. 1999), trans, dened 726 N.E.2d 305 (nd. 1999). Snce that holdng, the statute has been expanded and there s a greater nterconnecton between the cvl provson requrng regstraton and the crmnal sancton for falng to do so. Based upon ths expanson, Wallace seeks ths Court to overrule ts holdng n Spencer and fnd that hs prosecuton for falure to regster as a sex offender s an ex post facto volaton pursuant to Artcle, 0, Unted States Consttuton and Artcle, 24, ndana Consttuton. 6 Standard of Revew Wallace rased ths ssue both at the moton to dsmss hearng and agan at tral. The analyss for whether a statute volates the ex post facto provsons s the same under 6 n pertnent part: Unted States Consttuton provdes that "[n]o state shall... pass any... ex post facto law." Art., 10. The ndana Consttuton provdes that "[n]o ex post facto law... shall ever be passed." Art.,

16 ! the federal and state consttutons. See Spencer, 707 N.E.2d at The Spencer court used a two-step process to examne the ex post facto clams, n pertnent part: Analyss Frst, we must determne whether the legslature ntended the proceedngs to be cvl or crmnal. n makng ths determnaton, we may examne the declared purpose of the legslature as well as the structure and desgn of the statute. f the ntent was cvl, we must next ask whether the "statutory scheme [s] so puntve ether n purpose or effect as to negate [the State's] ntenton to deem t cvl." The second part of the test requres the party challengng the.statute to provde "the clearest proof" of the puntve purpose or effect of the statute. Thus, n determnng whether a sancton s cvl or crmnal, we cannot look solely to the label gven to t by the legslature, but must also examne whether t s so puntve n effect as to no longer be properly called a cvl sancton. d. at (ntemal ctatons omtted). Central to the Spencer court's fndng that the duty to regster was cvl and not puntve was the narrowness of the statute. Specfcally, the Court found:.,.. The offender need only provde lmted personal nformaton, ncludng hs or her name, date of brth, physcal descrpton, Socal Securty number, drver's lcense number, and address. nd.code d. The offender's duty to regster termnates ten years after he s released from prson, placed on parole, or placed oh probaton, whchever occurs last. nd.code d. These lmtatons n content and duraton establsh a regulatory ntent n whch regstraton apprses law enforcement offcals of basc nformaton about an offender lvng n the area. d. These lmtatons show a regulatory ntent to montor the whereabouts of the offender, not to punsh the offender, ld. 7nd. Code to was repealed and replaced by nd. Code to n (Repealed by P.L , SEC 41, and P.L , SEC.55.).

17 l Snce the Spencer holdng, the legslature has enacted a new statute that mandates ncluson of all of the lmtatons that the court nferred would transform the regstry from a cvl provson to a crmnal penalty. Specfcally nd. Code requres that, n pertnent part, the regstraton nclude: (1) The sex or volent offender's full name, alas, any name by whch the sex or volent offender was prevously known, date of brth, sex, race, heght, weght, har color, eye color, any scars, marks, or tattoos, Socal Securty number, drver's lcense number or state dentfcaton card number, vehcle descrpton and vehcle plate number for any vehcle the sex or volent offender owns or operates on a regular bass, prncpal resdence address, other address where the sex or volent offender spends more than seven (7) nghts n a fourteen (14) day perod, and malng address, f dfferent from the sex or volent offender's prncpal resdence address. (2) A descrpton of the offense for whch the sex or volent offender was convcted, the date of convcton, the county of the convcton, the cause number of the convcton, and the sentence mposed, f applcable. (3) f the person s requred to regster under secton 7(a)(2) or 7(a)(3) of ths chapter, the name and address of each of the sex or volent offender's employers n ndana, the name and address of each campus or locaton where the sex or volent offender s enrolled n school n ndana, and the address where the sex or volent offender stays or ntends to stay whle n ndana. (4) A recent photograph of the sex or volent offender. (5) f the sex or volent offender s a sexually volent predator, that the sex or volent offender s a sexually volent predator. (6) f the sex or volent offender s requred to regster for lfe, that the sex or volent offender s requred to regster for lfe. (7) Any other nformaton requred by the department. (As added by P.L , SEC. 13 and P. L , SEC. 13. A mended by P. L , SEC. 16.) 12

18 Wth Wallace's convcton, he has, n fact, dsclosed ths nformaton. Below see hs nformaton as taken from the Maron County SherfFs web ste: s. '_': Status: ACTVE Regstraton Type: Sex Offender Offender Type: LFETME NOTFCATON Re leased: 02/ End Reg. Date: Next Reg. Date: 04/ Offender Detal RCHARD PATRCK WALLACE 1.,. m, Address(es): Employer - STATE WDE CREDT Home -,. J Age: 51 Race: Whte Heght: 6' 00" Eye Color: Buld: Alases: Charges: Brown Medum No ahases found NTECH BLVD NDANAPOLS, NDANA County: MARON RCHARD PATRCK WALLACE 1679 STACY LYNN DR NDANAPOLS, NDANA County: MARON Sex: Complexon: Weght: Har: [ ] CHLD MOLESTNG Male Far 185 b Brown Cause: Sentence: PROBATON Convcton County: MARON Convcton State: NDANA.Convcton Date: 02115/1989 NOTCE: Searches based on names, dates of brth and other dentfers are not always accurate, nor _sthe nformaton contaned on tbs webste guaranteed to be correct. The only way to postvely hnk someone to a crmnal record s through fngerprnt verfcaton. &redpage= 1 l 0/l/

19 Moreover, unlke the statute that was n analyzed n Spencer (10 year lmtaton); Wallace has been placed upon an unconsttutonal lfe term of probaton. n Smth v. Doe, 538 US 84 (2003), the Supreme Court found that the sex offender statute n Alaska requrng regstraton and notfcaton was not puntve, therefore, not a volaton of federal ex post facto. Alaska's statute s smlar to ndana's, however, Hoosers have long contended more protectons under the ndana Consttuton. Addtonally, ndana n nd. Code mandates that as a condton of probaton for a sex offender, the court shall, among other thngs, "prohbt the sex offender from resdng wthn 1000 feet of school property for the perod of probaton." From a narrow and lmted regstry enacted n 1994 s borne the regstry of 2007 whch requres name, photos, work and home addresses posted on the ntemet certanly crmnal characterstcs and the lmtaton of an offender's place of resdence. More mportantly, Smth does not address whether a crmnal convcton and ncarceraton resultng from falure to regster s so ntrnscally related to the sex offender regstry that s not a new charge. And f t s not a new charge, does ths make establsh the regstry as puntve and or does any resultng convcton mplcate a double jeopardy concern? 8 n sum, the expansveness of the current duty to regster has grown to nclude puntve measures such that the regstry has become mbued wth crmnal characterstcs and the crmnal volatons based upon the falure to regster are so closely lnked, they do not even consttute a new charge. As such, both state and federal expost facto laws have been volated n prosecutng Wallace for ths alleged crme. Hs 8 See Commonwealth v. Wllams, Pennsylvana Supreme Court holdng a new charge of falure to regster was ntrnscally related to the sex offender regstry. 832 A. 2d 962, 985 (Pa. 2003). Because of the nterconnectedness, the regstry used puntve measures (ncarceraton and probaton). 14

20 convcton should be reversed and hs name and personal nformaton strcken from the sex offender regstry. 3. t s a reasonable nference that the State has forfeted ts rght to prosecute Wallace for falure to regster because that ssue was negotated n hs pror plea agreement. Standard of Revew "A plea agreement s a contract, 'an explct agreement between the State and defendant whch s bndng upon both partes when accepted by the tral court.' " Grffn v. State, 756 N.E.2d 572, 573 (nd. Ct. App. 2001) ctngto Smth v. State, 717 N.E.2d 239, 241 (nd. Ct.App. 1999). n revewng plea agreements, prncples of contract law can be used. d. Analyss Wallace testfed that hs plea agreement was negotated over several months. t s clear that he ped to a lesser charge than the lead B felony count. He also specfcally stated that "the deal" T Vol 178] was that he wouldn't be ncarcerated at the Department of Correctons because then he would have to regster [T Vol ]. Wallace beleved, wth reasonable nference and the terms of the agreement that he would not be requred to regster n the future. As such, hs convcton should be vacated. 15

21 !! CONCLUSON For the reasons stated, Mr. Wallace respectfully requests that ths Court vacate hs convcton for falure to regster as a sex offender, drect that hs name and personal nformaton strcken from the sex offender regstry and grant any and all other just relef. Respect full_ubmtted, Kathleen M. Sweeney, Att. N_._ Attorney For Wallace {,ff 155 E. Market Street, Sute 400 ndanapols, N Telephone

22 N THE RCHARD WALLACE, COURT OF APPEALS OF NDANA CAUSE NO. 49A CR-498 Appellant (Defendant Below), V. STATE OF NDANA, Appellee (Plantff Below). An appeal from: Maron Superor Court, Crm Dvson, Rm. No. 15 Lower Court Cause No.: 49F FD The PROOF OF SERVCE Honorable Lsa Borges, Judge hereby affrm under the penaltes for perjury that have provded two (2) copes of the Bref of Appellant n the above-captoned cause to Steve Carter, ndana Attorney General, 219 State House, ndanapols, ndana by U.S. Mal on October 1, E. Market Street, Sute 400 ndanapols, N Telephone Kathleen M. Sweeney, A._o

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24 STATE OF NDANA ) COUNTY OF MARON ) SS: N THE MARON SUPEROR COURT CRMNAL DVSON, ROOM 15 Case Number 49F FD l STATE OF NDANA RCHARD Defendant VS. WALLACE, ORDER ON DEFENDANT'S MOTON TO DSMSS. _/ J _._:. (7-,,: L_'r' },':=: 0 200"- C',/fK _" ' Or,H.:- '_'J"_)f_'_'!;:.qCUll ;',,( 1. The Defendant, Mr. Rchard Wallace, fled a Moton to Dsmss the charges ha ths case on October 8, The Court set the Moton for a hearng on Aprl 19, The undersgned was apponted the Judge Pro Tempore on Aprl 19, At the hearng, the Defendant was present n person and by counsel, Ms. Jacke Butler. The State of ndana was represented by Deputy Prosecutng Attorney Ms. L. Ern Kellam. 4. After hearng the arguments of counsel, the Court took the matter under advsement untl May 27, 2005, and asked the partes to fle short memoranda contanng ctatons to any relevant case law no later than May 3, Attorneys for both partes submtted pleadngs on May 3, The Court has had an opportunty to revew each party's pleadng and to consder the case law cted by each party. Comes now the Court, and hereby DENES the Defendant's Moton to Dsmss. ALL SO ORDERED on ths the 18 'h day of May, Copes to: Ms. Jacke Butler, Attorney for the Defendant, Mr. Rchard Wallace Ms. L. Ern.Kellam, Deputy Prosecutng Attorney Ruth D. Rechard, Judge Pro Tempore Maron Superor Court Crmnal Dvson, Room 15 _.