Argued: March 22, 2018
from the Howard Superior Court 4, No. 34D04-1001-FD-11 The
Honorable George A. Hopkins, Judge On Petition to Transfer
from the Indiana Court of Appeals, No. 34A02-1609-CR-2060
ATTORNEY FOR APPELLANT Alan D. Wilson Kokomo, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Stephen R. Creason Michael Gene Worden Deputy
Attorneys General Indianapolis, Indiana
relief is both limited and exclusive. It is available only
within the strictures of the post-conviction rules, and when
the rules allow post-conviction proceedings, relief generally
cannot be pursued any other way.
the petitioner tried to use post-conviction proceedings to
challenge a statute barring him, as a serious sex offender,
from school property. But that restriction is a collateral
consequence of his conviction-and the post-conviction rules
generally allow challenges only to a conviction or sentence.
While we thus affirm the denial of post- conviction relief,
we note that the post-conviction rules do not bar the
petitioner from pursuing his claim in a declaratory-judgment
and Procedural History
Kirby pleaded guilty to child solicitation in 2010, leading
to a ten-year sex-offender registration requirement and an
eighteen-month sentence, suspended to probation. His
probation conditions made schools off-limits, but he asked
for and received an exception for his son's activities.
He kept attending his son's school events after finishing
probation in 2012.
2015, though, Indiana Code section 35-42-4-14 made it a Level
6 felony for a "serious sex offender" to knowingly
or intentionally enter school property. Under that new
statute, a serious sex offender is someone who must register
as a sex offender and has been convicted of a qualifying
offense. Ind. Code § 35-42-4-14(a) (Supp. 2015). Child
solicitation is one of those qualifying offenses, I.C. §
35-42-4-14(a)(2)(F), so Kirby had to stop attending school
challenged this restriction by seeking post-conviction
relief. He argued that he did not "knowingly" plead
guilty because he didn't know at the time of his plea
that he would later be barred from school property. He also
alleged that the new statute was an unconstitutional ex post
facto law because it added punishment to an already-committed
crime. The post-conviction court denied relief.
appeal, Kirby challenged the school-entry restriction on
three constitutional grounds-including the ex post facto
claim. The Court of Appeals agreed with Kirby on that claim,
holding that the statute's school- entry restriction is
unconstitutional as applied to him. Kirby v. State,
83 N.E.3d 1237, 1246 (Ind.Ct.App. 2017).
State sought rehearing, arguing that post-conviction
proceedings are the wrong vehicle for Kirby's ex post
facto claim. The Court of Appeals denied rehearing, and the
State sought transfer-which we granted, vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).