Shepard, S.J.
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.
Cundiff was charged in October 2003 with child exploitation by possession of child pornography, and child exploitation by dissemination or exhibition of child pornography… 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.
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.
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.
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. … Following a hearing, the court granted Cundiff’s petition for relief in January 2015.
In July 2015, the court granted the State’s motion to correct error and denied Cundiff’s petition. This appeal ensued.
Cundiff presents two issues: … whether the court erred by denying his request to vacate the appointment of the special judge… whether the court erred by denying his petition for relief from SORA.
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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. … Cundiff has not met this burden, for he failed to allege any deprivation of a substantial right. …
We thus turn to Cundiff’s claim that the trial court wrongly denied his petition for relief from his lifetime sex offender registration requirement.
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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 as a sex offender for life. The statute requiring registration for life for Cundiff’s offense was first enacted in 2001.
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 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.
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Cundiff next claims that the provisions of Indiana Code section 35-42-4-11, specifically its residency restrictions, do not apply to him. … 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 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)…
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.
Affirmed in part, reversed and remanded in part with instructions.
Vaidik, C.J., and Pyle, J., concur.