Misadvisement of Registration Requirements After Guilty Plea

In 2006, the Indiana legislature passed a law that automatically classified certain sex offenders as sexually violent predators (SVPs). This classification required those offenders to now register for life, rather than for just 10 years. The Indiana Supreme Court has held that the act of registration is akin to punishment. Thus, 10-year registrants who suddenly found themselves being labeled as SVPs are being required to register for life were subjected to additional punishment that was imposed after the fact.

Registrants who learned that the SVP designation was being retroactively applied to them challenged the new law as constituting ex post facto (“after the fact”) punishment. The Supreme Court of Indiana held that because SVPs have an opportunity to ask the court to remove the SVP designation and the lifetime registration requirement after registering for 10 years, they have not yet suffered additional punishment. It is only after they have registered for 10 years, which they would have been required to do anyway before the change in law, and are not given a meaningful opportunity for removal that they suffer additional punishment from the change in law.

One of the more common questions I get from registrants in this position is whether they can seek post-conviction relief from their convictions due to retroactive application of the SVP designation and lifetime registration requirement. They usually explain that when they pleaded guilty, they were advised they would only be required to register for 10 years, and that advice was wrong. Thus, their guilty plea was not knowing and voluntary.

The argument is not wrong, but it may not yet be ripe for litigation. If the person has not registered for at least 10 years and thereafter been provided a meaningful opportunity for removal of the SVP designation, they cannot (yet) show that they were wrongly advised of the consequences of their guilty plea.

What is a “meaningful opportunity for removal”? I hope to have the Court’s answer to that soon…