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,
Attorney for Appellee Alan D. Wilson Kokomo, Indiana
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.
The State presents one issue, which we restate as whether the
Statute is an unconstitutional ex post facto law as applied
The underlying facts, as described by our Supreme Court, are
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
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--4-14(b) is an ex-post
[facto] law as it applies to the petitioner and is
12. The petitioner may enter onto school property to attend
his [son's] school functions and sporting events.
Id. at 118.
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.
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 ...