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State v. Kirby

Court of Appeals of Indiana

March 4, 2019

State of Indiana, Appellant-Defendant,
v.
Douglas Kirby, Appellee-Plaintiff.

          Appeal from the Howard Superior Court Trial Court Cause No. 34D04-1805-PL-334 The Honorable George A. Hopkins, Judge.

          Attorneys for Appellant Curtis T. Hill, Jr. Attorney General of Indiana Stephen R. Creason Chief Counsel Indianapolis, Indiana

          Attorney for Appellee Alan D. Wilson Kokomo, Indiana

          Tavitas, Judge.

         Case Summary

         [¶1] The State appeals the trial court's entry of declaratory judgment, declaring that the unlawful-entry statute, Indiana Code Section 35-42-4-14(b) ("the Statute"), is an unconstitutional ex post facto law as applied to Douglas Kirby. We reverse and remand.

         Issue

         [¶2] The State presents one issue, which we restate as whether the Statute is an unconstitutional ex post facto law as applied to Kirby.

         Facts

         [¶3] The underlying facts, as described by our Supreme Court, are as follows:

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).

Kirby v. State, 95 N.E.3d 518, 519-20 (Ind. 2018). Our Supreme Court found that, while Kirby could not raise his ex post facto claim in a post-conviction proceeding, "he may have a vehicle for his claim" through a declaratory judgment action. Id. at 521. Our Supreme Court's opinion vacated this court's opinion on Kirby's post-conviction proceeding.[1]

         [¶4] On May 15, 2018, Kirby filed his declaratory judgment action. Kirby sought a judgment declaring that the Statute is an unconstitutional ex post facto law as applied to Kirby and "an Order specifically allowing [Kirby] to go on to school property for all lawful purposes[.] . . ." Appellant's App. Vol. II p. 7. After a hearing, the trial court declared the Statute was unconstitutional as applied to Kirby and found the following:

10. The sentencing court allowed the petitioner to go onto school property to attend his son's school functions and sporting events before the 2015 amendment.
11. The court finds that IC 35-[42]-4-14(b) is an ex-post [facto] law as it applies to the petitioner and is unconstitutional.
12. The petitioner may enter onto school property to attend his [son's] school functions and sporting events.

Id. at 118.

         Analysis

         [¶5] The ex post facto clause of the Indiana Constitution forbids laws that impose punishment for an act that was not otherwise punishable when it was committed. Ind. Const. art. 1 § 24; Lemmon v. Harris, 949 N.E.2d 803, 809 (Ind. 2011). The aim of the ex post facto clause is to ensure that people are "give[n] fair warning of the conduct that will give rise to criminal penalties." Harris, 949 N.E.2d at 809. The ex post facto clause also forbids laws (1) that impose punishment for an act that was not otherwise punishable when it was committed or (2) that impose additional punishment for an act then-proscribed. Id.

         [¶6] Our Supreme Court has held that "[a] law is ex post facto if it 'substantially disadvantage[s] [a] defendant because it increase[s] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] defendant of some defense or lesser punishment that was available at the time of the crime.'" Id. (quoting Stroud v. State, 809 N.E.2d 274, 288 (Ind. 2004)).

In evaluating ex post facto claims under the Indiana Constitution, we apply the familiar "intent-effects" test . . . . Under this test, we first determine whether the Legislature meant the Act to establish civil proceedings. If instead its intention was to impose punishment, then the inquiry ends. However, if the Legislature intended a nonpunitive regulatory scheme, then we must examine the Act's effects to determine whether they are in fact so punitive as to transform the regulatory ...

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