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Cundiff v. State

Court of Appeals of Indiana

December 21, 2016

Michael D. Cundiff, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

         Appeal from the Dearborn Superior Court. The Honorable James D. Humphrey, Special Judge. Cause No. 15D01-1407-MI-62

          Attorney for Appellant Jeffrey E. Stratman Aurora, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

          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.

         Facts and Procedural History

         [¶2] Cundiff was charged in October 2003 with child exploitation by possession of child pornography, a Class D felony, [1] and child exploitation by dissemination or exhibition of child pornography, a Class C felony.[2] 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 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 ...

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