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Kirby v. State

Supreme Court of Indiana

April 27, 2018

Douglas Kirby Appellant (Petitioner)
v.
State of Indiana Appellee (Respondent)

          Argued: March 22, 2018

          Appeal 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

          OPINION

          RUSH, CHIEF JUSTICE.

         Post-conviction 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.

         Here, 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 action.

         Facts and Procedural History

         Douglas 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.

         In 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 events.

         Kirby 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.

         On 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).

         The 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).

         Standard ...


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