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Kirby v. State

Court of Appeals of Indiana

August 31, 2017

Douglas Kirby, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

         Appeal from the Howard Superior Court The Honorable George A. Hopkins, Judge Trial Court Cause No. 34D04-1001-FD-11

          ATTORNEY FOR APPELLANT Alan D. Wilson Kokomo, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

          Bradford, Judge.

         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 Statute[1] ("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 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 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

         [¶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 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 ...


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