Court Of Appeals Says Sex Offender Must Register For Life, But May Live Near School Or Park

By Mike Perleberg Dearborn County Courthouse. (Dearborn County, Ind.) - The Indiana Court of Appeals says a man convicted of felony Child Exploitation in Dearborn County will have to keep his name on the Indiana Sex Offender Registry. However, Michael D. Cundiff will not face residency restrictions after the court’s decision. Cundiff was caught with child pornography in 2003. He was charged with Child Exploitation by Possession of Child Pornography (class D felony) and Child Exploitation by Dissemination or Exhibition of Child Pornography (class C felony). He pleaded guilty to the class C felony charge and was sentenced in 2004 to eight years, with six years suspended to probation. In 2009, Cundiff asked for reclassification to the 10-year sex offender registration, but was denied by a local judge. He tried again in 2014, but his request was again denied. He appealed last year, arguing the local court erred by denying his request to vacate the appointment of a special judge, and secondly, that the court was wrong to denying his petition for relief from the Sex Offender Registration Act. On Wednesday, the Indiana Court of Appeals ruled Cundiff can be ordered to appear on Indiana’s sex offender registry for life. Senior Judge Randall Shepard wrote in the eight-page decision that Cundiff has not met the burden of proving the court’s error substantially impacted his rights. “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,” the opinion states. But, the court did agree with Cundiff that his crime was committed before a new state law went into effect in 2006 restricting sex offenders from living near schools, parks, or youth centers. Because of the timing, certain restrictions cannot be placed on where Cundiff lives. “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… Accordingly, we reverse the trial court on this issue.” The case was remanded to the local trial court to issue a new order in line with the appellate court’s decision.