Douglas Kirby v. State of Indiana
83 N.E.3d 1237
| Ind. Ct. App. | 2017Background
- In 2010 Douglas Kirby pled guilty to Class D felony child solicitation, received an 18-month suspended sentence to probation, and was ordered to register as a sex offender for ten years.
- The trial court expressly allowed Kirby to enter school property to attend and observe his son's school activities; he did so for nearly five years without incident and completed probation.
- Kirby’s conviction was reduced to a Class A misdemeanor in February 2015; his sex-offender registration requirement remained.
- Indiana’s "Unlawful Entry" statute (Ind. Code § 35-42-4-14) took effect July 1, 2015 and makes it a Level 6 felony for qualifying sex offenders to knowingly enter school property; the statute unambiguously applied to Kirby.
- Kirby filed an amended post-conviction relief petition arguing the statute (1) violates the Ex Post Facto Clause as applied to him, (2) infringes his due-process interest in caring for his son, and (3) is unconstitutionally vague; the post-conviction court denied relief.
- The Court of Appeals reversed as to enforcement of the Unlawful Entry statute, concluding that as applied to Kirby it imposes retroactive punishment in violation of the Indiana Ex Post Facto Clause; the underlying conviction was left intact.
Issues
| Issue | Plaintiff's Argument (Kirby) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the Unlawful Entry statute is an unconstitutional ex post facto law as applied to Kirby | The statute retroactively imposes additional punishment by criminalizing entry to school property despite the trial court’s prior permission and completed probation | The State did not address the merits below; it framed dispute around plea voluntariness in post-conviction court | Court held statute, as applied to Kirby, is punitive and violates Indiana’s Ex Post Facto Clause; relief granted as to enforcement of the statute |
| Whether the statute violates Kirby’s due-process interest in care, custody, and control of his son | Denial to enter school property infringes Kirby’s parental interests and access to child’s activities | State opposed relief on other grounds; did not contest constitutionality claim below on the merits | Court did not reach this issue after resolving Ex Post Facto claim |
| Whether the statute is unconstitutionally vague | The statute’s terms deprive Kirby of fair notice regarding permitted conduct on school property | State asserted statute is regulatory/public-safety measure and sufficiently definite | Court did not decide vagueness after finding Ex Post Facto violation |
Key Cases Cited
- Weaver v. Graham, 450 U.S. 24 (ex post facto doctrine forbids laws imposing additional punishment retroactively)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (Mendoza-Martinez factors for determining whether civil sanctions are punitive)
- Smith v. Doe, 538 U.S. 84 (analysis of disability/restraint and punitive effect in sex-offender context)
- Wallace v. State, 905 N.E.2d 371 (Ind. approach applying intent-effects test to sex-offender regulatory schemes)
- State v. Pollard, 908 N.E.2d 1145 (Ind. Supreme Court weighing Mendoza-Martinez factors; residency restriction found punitive as applied)