FILED
08/31/2017, 9:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alan D. Wilson Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Kirby, August 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
34A02-1609-CR-2060
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Respondent. Hopkins, Judge
Trial Court Cause No.
34D04-1001-FD-11
Bradford, Judge.
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Case Summary
[1] On November 5, 2010, Appellant-Petitioner Douglas Kirby pled guilty to one
count of Class D felony child solicitation. Kirby was sentenced to eighteen
months on probation, which he successfully completed. Under the terms of his
probation, Kirby was granted explicit permission to enter school property for
the purpose of observing his son’s school activities. He was also required to
register as a sex offender for a term of ten years. Kirby’s conviction was
thereafter reduced to a Class A misdemeanor. Despite the reduction in his
sentence, the requirement that he register as a sex offender remained in place.
[2] On July 1, 2015, the Unlawful Entry Statute1 (“the Statute”) went into effect.
The Statute makes it a Level 6 felony for individuals convicted of certain crimes
to enter onto school property. It is undisputed that the Statute applies to Kirby.
[3] Kirby filed an amended petition for post-conviction relief (“PCR”) on June 20,
2016.2 Following an evidentiary hearing, the post-conviction court denied
Kirby’s amended PCR petition. Kirby appealed, arguing that the post-
conviction court erred in denying his amended PCR petition because the
Statute (1) is unconstitutional as applied to him because it amounts to
retroactive punishment in violation of the Ex Post Facto Clause contained in
the Indiana Constitution (“the Ex Post Facto Clause”); (2) violates his due
1
Ind. Code § 35-42-4-14.
2
Kirby’s original PCR petition was filed on April 15, 2016.
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process interest in the care, custody, and control of his son; and (3) is
unconstitutionally vague. Review of the facts and circumstances of this case
convince us that as applied to Kirby, the Statute is unconstitutional as it
constitutes a retroactive punishment in violation of the Ex Post Facto Clause.
We therefore reverse the judgment of the post-conviction court as to the
enforcement of the Unlawful Entry Statute but leave in place Kirby’s
underlying conviction for Class D felony child solicitation.
Facts and Procedural History
[4] On January 11, 2010, Kirby was charged with Class C felony child solicitation.
In charging Kirby, the State alleged that Kirby, being at least twenty-one years
old, “did knowingly or intentionally solicit a Child presumed to be the age of
15, a child at least fourteen years of age but less than sixteen years of age, to
engage in sexual intercourse, said solicitation having been accomplished by the
use of a computer network[.]” Appellant’s App. Vol. II, p. 15. On November
5, 2010, Kirby pled guilty to the lesser-included offense of Class D felony child
solicitation.
[5] The trial court accepted Kirby’s plea, entered judgment of conviction for Class
D felony child solicitation, and sentenced him to a term of eighteen months, all
of which was suspended to probation. The trial court imposed both the
standard rules of probation and the special recommended probation conditions
for adult sex offenders on Kirby, with the exception being that the trial court
explicitly granted Kirby permission to enter onto school property for the
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purpose of attending and observing his son’s school activities. 3 Kirby was also
ordered to register as a sex offender for a term of ten years.
[6] Kirby successfully completed all of the terms of his probation and, on
November 21, 2014, petitioned to have his conviction reduced to a
misdemeanor. On February 10, 2015, the trial court granted Kirby’s petition,
reducing Kirby’s conviction to a Class A misdemeanor.
[7] On July 1, 2015, the Statute went into effect. The Statute defines a serious sex
offender as a person required to register as a sex offender and who has
convicted of certain offenses, including child solicitation. Ind. Code § 35-42-4-
14(a)(1)(F). The Statute provides that a serious sex offender “who knowingly
or intentionally enters school property commits unlawful entry by a serious sex
offender, a Level 6 felony.” Ind. Code § 35-42-4-14(b). As is stated above, it is
undisputed that the Statute applies to Kirby.
[8] After being notified of the Statute’s application, Kirby filed a PCR petition on
April 16, 2016, and an amended PCR petition on June 20, 2016. Following an
evidentiary hearing, the post-conviction court denied Kirby’s amended PCR
petition. This appeal follows.
Discussion and Decision
3
At all times relevant to this case, Kirby had custody of his now-teenage son. His son was, and continues to
be, involved in numerous school activities.
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[9] Kirby contends that the post-conviction court erred in denying his amended
PCR petition because the unlawful entry statute is unconstitutional as applied
to him because it amounts to retroactive punishment in violation of the Ex Post
Facto Clause.4 Alternatively, Kirby contends that the unlawful entry statute (1)
violates his due process interest in the care, custody, and control of his son and
(2) is unconstitutionally vague.
I. Standard of Review
[10] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[11] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
4
We have previously found similar ex post facto challenges to be timely even before the appellant has been
charged with violating the Statute. See McVey v. State, 56 N.E.3d 674, 679 n.9 (Ind. Ct. App. 2016) (quoting
Smith v. Wis. Dep’t of Agric., 23 F.3d 1134, 1141) (7th Cir. 1994) for the proposition that a person “should not
be required to face the Hobson’s choice between forgoing behavior that he believes to be lawful and violating
the challenged law at the risk of prosecution”); see also Greer v. Buss, 918 N.E.2d 607, 614 (Ind. Ct. App. 2009)
(acknowledging that a person need not first expose himself to actual arrest or prosecution to be entitled to
challenge whether a particular statute is unconstitutional as applied to him).
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claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion, that its decision will be disturbed as contrary
to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.
The post-conviction court is the sole judge of the weight of the evidence and the
credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
We therefore accept the post-conviction court’s findings of fact unless they are
clearly erroneous but give no deference to its conclusions of law. Id.
II. Constitutionality of the Statute as Applied to Kirby 5
[12] Article I, section 24 of the Indiana Constitution provides that
“[n]o ex post facto law ... shall ever be passed.” Among other
things, “[t]he ex post facto prohibition forbids ... the States to
enact any law ‘which imposes a punishment for an act which was
not punishable at the time it was committed; or imposes
additional punishment to that then prescribed.’” Weaver v.
5
Seemingly given the post-conviction court’s statement that Kirby did not ask the court to consider the
constitutionality of the Statue, the State chose not to address the merits of Kirby’s claim that the Statute was
unconstitutional as applied to him because it amounted to a retroactive punishment in violation of the Ex
Post Facto Clause. Instead, the State framed its argument as whether the Statute impacted the knowing and
voluntary nature of Kirby’s guilty plea. Despite the post-conviction court’s statement to the contrary, review
of Kirby’s post-conviction pleadings demonstrate that Kirby did challenge the constitutionality of the Statute
before the post-conviction court. As such, because we believe Kirby sufficiently challenged the
constitutionality of the Statute below, we will decide Kirby’s claims on appeal as they were presented by
Kirby.
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Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)
(quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18
L.Ed. 356 (1866)). The underlying purpose of the Ex Post Facto
Clause is to give effect to the fundamental principle that persons
have a right to fair warning of that conduct which will give rise to
criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093
(Ind. 2006).
State v. Pollard, 908 N.E.2d 1145, 1148-49 (Ind. 2009).
[13] In 2009, the Indiana Supreme Court determined that in evaluating ex post facto
claims under the Indiana Constitution, Indiana Courts apply what is commonly
referred to as the “intent-effects” test. Id. at 1149 (citing Wallace v. State, 905
N.E.2d 371, 378 (Ind. 2009)).
Under this test the court must first determine whether the
[Indiana General Assembly (“the General Assemblly”)] meant
the [S]tatute to establish civil proceedings. [Wallace, 905 N.E.2d
at 378]. If the intention of the legislature was to impose
punishment, then that ends the inquiry, because punishment
results. If, however the court concludes the legislature intended a
non-punitive, regulatory scheme, then the court must further
examine whether the statutory scheme is so punitive in effect as
to negate that intention thereby transforming what was intended
as a civil, regulatory scheme into a criminal penalty. Id.
Id.
A. Whether the General Assembly Intended to Impose
Punishment
[14] Whether the General Assembly intended for the Statute to be civil or criminal is
primarily a matter of statutory construction. Id.
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And as we observed in Wallace for the overall Sex Offender
Registration Act [(“the Act”)], “it is difficult to determine
legislative intent since there is no available legislative history and
the Act does not contain a purpose statement.” [905 N.E.2d at
383] (quoting Spencer v. O’Connor, 707 N.E.2d 1039, 1043 (Ind.
Ct. App. 1999)).
Id.
[15] In McVey, we considered whether the General Assembly intended for the
Statute to be civil or criminal in nature. 56 N.E.3d at 679-80. We noted that
“[b]ecause there is no available legislative history and the Act does not contain
a purpose statement, our Supreme Court has consistently assumed without
deciding that the legislature’s intent in passing the Act was to create a civil,
regulatory, non-punitive scheme, and then moved to the second part of the
test.” Id. at 680. We then made the same assumption, again without deciding
the question, and moved on to the second prong of the analysis. Id. We will do
the same here.
B. Whether the Effect of the Statute is Punitive
[16] In assessing a statute’s effects we are guided by seven factors that
are weighed against each other: “[1] Whether the sanction
involves an affirmative disability or restraint, [2] whether it has
historically been regarded as a punishment, [3] whether it comes
into play only on a finding of scienter, [4] whether its operation
will promote the traditional aims of punishment-retribution and
deterrence, [5] whether the behavior to which it applies is already
a crime, [6] whether an alternative purpose to which it may
rationally be connected is assignable for it, and [7] whether it
appears excessive in relation to the alternative purpose assigned.”
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Wallace, 905 N.E.2d at 379 (quoting Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963))
(alterations in original). No one factor is determinative. “[O]ur
task is not simply to count the factors on each side, but to weigh
them.” Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217,
1224 (1992)).
Pollard, 908 N.E.2d at 1150 (brackets in original). We address each factor in
turn.
1. Affirmative Disability or Restraint
[17] When determining whether a law subjects those within its
purview to an “affirmative disability or restraint,” Mendoza-
Martinez, 372 U.S. at 168, 83 S.Ct. 554, the Court inquires “how
the effects of the Act are felt by those subject to it. If the
disability or restraint is minor and indirect, its effects are unlikely
to be punitive.” Smith v. Doe, 538 U.S. 84, 99-100, 123 S.Ct.
1140, 155 L.Ed.2d 164 (2003).
Id.
[18] In this case, the disability or restraint imposed by the Statute is neither minor
nor indirect. Review of the record reveals that in sentencing Kirby in 2010, the
trial court explicitly gave Kirby permission to enter school property for the
purpose of attending and observing “activities involving his son.” Appellant’s
App. Vol. II, p. 22. Kirby was permitted to do so for a period of five years
before the Statute went into effect. Importantly, the record is devoid of any
suggestion that Kirby behaved inappropriately at any time while on school
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property. Given these facts, we are persuaded that this factor clearly favors
treating the effects of the Statute as punitive as applied to Kirby.
2. Sanctions that Have Historically been Considered Punishment
[19] “We next determine ‘whether [the sanction] has historically been regarded as a
punishment.’” Pollard, 908 N.E.2d at 1150 (quoting Mendoza-Martinez, 372 U.S.
at 168) (brackets in original). Generally speaking, schools—especially school
sporting events—have been open to members of the public. It seems reasonable
to assume, therefore, that the act of restricting an individual from entering
school property has historically been considered a form of punishment, whether
for an act committed on school grounds or in the community. This is especially
true considering that until the Statute went into effect, Kirby had been
permitted to enter school property for the purpose of observing his son’s
activities, even after he pled guilty to and was convicted of child solicitation.
As such, we are persuaded that this factor also favors treating the effects of the
Statute as punitive as applied to Kirby.
3. Finding of Scienter
[20] Third, we consider “whether [the statute] comes into play only
on a finding of scienter.” Mendoza-Martinez, 372 U.S. at 168, 83
S.Ct. 554. “The existence of a scienter requirement is
customarily an important element in distinguishing criminal from
civil statutes.” Wallace, 905 N.E.2d at 381 (quoting Kansas v.
Hendricks, 521 U.S. 346, 362, 117 S.Ct. 2072, 138 L.Ed.2d 501
(1997)). If a sanction is not linked to a showing of mens rea, it is
less likely to be intended as punishment.
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Id. at 1151 (emphases in original).
[21] The Statute includes a showing of mens rea, i.e., that the serious sex offender
“knowingly or intentionally” enters school property. Ind. Code § 35-42-4-14(b).
Also, child solicitation, the underlying qualifying offense that invoked the
Statute in this case, requires a finding of scienter. See Ind. Code § 35-42-4-6. As
such, it would appear that this factor favors treating the effects of the Statute as
punitive as applied to Kirby.
4. The Traditional Aims of Punishment
[22] We next consider whether the Statute’s operation will promote the traditional
aims of punishment. Wallace, 905 N.E.2d at 381. Under the Indiana
Constitution, the primary objective of punishment is rehabilitation. Id. (citing
Ind. Const. art. 1, § 18). “And there are other objectives including the need to
protect the community by sequestration of the offender, community
condemnation of the offender, as well as deterrence.” Id. (citing Abercrombie v.
State, 441 N.E.2d 442, 444 (Ind. 1982)).
[23] “‘Deterrent measures serve as a threat of negative repercussions to discourage
people from engaging in certain behavior.’” Id. n.12 (quoting Artway v. Attorney
Gen. of N.J., 81 F.3d 1235, 1255 (3d Cir. 1996)). In Pollard, the Indiana
Supreme Court found that the residency restriction statute, which limits where
sex offenders can reside, was an “even more direct deterrent to sex offenders
than the [Indiana Sex Offender Registration Act]’s registration and notification
regime.” 908 N.E.2d at 1152. One may reasonably assume that like the
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residency restriction statute, the Statute is designed to reduce the likelihood of
future crimes by depriving the offender the opportunity to commit those crimes.
In this sense, the Statute is a direct deterrent to sex offenders. We therefore find
the Indiana Supreme Court’s finding with regard to this factor in Pollard to be
instructive and are similarly persuaded that this factor favors treating the effects
of the Statute as punitive as applied to Kirby.
5. Application Only to Criminal Behavior
[24] “Under the fifth factor we consider ‘whether the behavior to which [the Statute]
applies is already a crime.’” Id. (quoting Mendoza-Martinez, 372 U.S. at 168).
“The fact that a statute applies only to behavior that is already and exclusively
criminal supports a conclusion that its effects are punitive.” Id. (citing Wallace,
905 N.E.2d at 381). In Pollard, the Indiana Supreme Court noted that “[t]here
is no question that it is the determination of guilt for a qualifying offense that
exposed Pollard to further criminal liability under the residency restriction
statute. We conclude this factor favors treating the effects of the residency
statute as punitive when applied to Pollard.” Id. We follow the logic employed
by the Indiana Supreme Court and conclude that because there is no question
that it was the determination of guilty for a qualifying offense that exposed
Kirby to further criminal liability under the Statute, this factor favors treating
the effects of the Statute as punitive as applied to Kirby.
6. Advancing a Non-Punitive Interest
[25] We next ask whether, in the words of the Supreme Court, “an
alternative purpose to which [the statute] may rationally be
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connected is assignable for it.” Mendoza-Martinez, 372 U.S. at
168-69, 83 S.Ct. 554. This statement is best translated as an
inquiry into whether the Act advances a legitimate, regulatory
purpose. Wallace, 905 N.E.2d at 382-83.
Id. There is no doubt that the Statute has a purpose other than to simply punish
sex offenders, that being to promote public safety and to protect children. It is
certainly reasonable to conclude that restricting sex offenders, especially those
convicted of acts against children, from entering school property advances
public safety and helps to protect children. As such, this factor clearly favors
treating the Statute as non-punitive as applied to Kirby.
7. Excessiveness in Relation to State’s Articulated Purpose
[26] Finally, we determine whether the unlawful entry statute “‘appears excessive in
relation to the alternative purpose assigned.’” Wallace, 905 N.E.2d at 383
(quoting Mendoza-Martinez, 372 U.S. at 169). “We give this factor the greatest
weight.” Pollard, 908 N.E.2d 1145, 1153 (Ind. 2009).
[27] It is undisputed that the unlawful entry statute applies to Kirby. It is also
undisputed that there are unquestionably legitimate, non-punitive purposes of
the Statute—public safety and protection of children. The Statute, however,
does not consider the seriousness of the crime, the relationship between the
victim and the offender, or an initial determination of the risk of re-offending.
See id. (noting that the residentiary restrictions statute which applies to certain
sex offenders failed to consider the seriousness of the offender’s crime, the
relationship between the victim and the offender, or an initial determination of
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the risk of re-offending). In considering whether the residentiary restrictions
statute was unconstitutional as applied to a particular offender, the Indiana
Supreme Court found that by restricting offenders “without considering
whether a particular offender is a danger to the general public, the statute
exceeds its non-punitive purposes.” Id. We believe that this logic applies
equally to the Statute.
[28] At the time of Kirby’s sentencing, the trial court explicitly granted Kirby
permission to enter school property for the purpose of observing activities
involving his son. It is unreasonable to think that the trial court would have
made this exception had it believed Kirby to be a danger to society. Kirby
entered school property for the purpose of observing his son’s activities for
nearly five years before the Statute went into effect. Importantly, the record is
devoid of any suggestion that Kirby behaved inappropriately at any time while
on school property. Also, by the time the Statute went into effect, Kirby had
completed all forms of punishment imposed by the trial court, except for his
continued registration on the sex offender registry.
[29] To suddenly deny Kirby of the opportunity to attend his son’s activities for no
reason other than his prior conviction is excessive. As such, we are persuaded
that this factor favors treating the effects of the Statute as punitive as applied to
Kirby.
Conclusion
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[30] After considering each of the above-discussed factors, we conclude that the
Statute is unconstitutional as applied to Kirby because it amounts to retroactive
punishment in violation of the Ex Post Facto Clause. Having reached this
conclusion, we need not consider whether the Statute violates Kirby’s due
process interest in the care, custody, and control of his son, or is
unconstitutionally vague.
[31] The judgment of the post-conviction court is reversed only as to the
enforcement of the Unlawful Entry Statute.
Baker, J., and Mathias, J., concur.
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Douglas Kirby v. State of Indiana
Combined Opinion