Kirby v. State, 95 N.E.3d 518

Background

Douglas Kirby pleaded guilty in 2010 to child solicitation; received an 18-month sentence (suspended to probation) and a 10-year sex-offender registration requirement.
While on probation Kirby was permitted to attend his son's school events; he continued attending after probation ended in 2012.
In 2015 the legislature enacted a statute making it a Level 6 felony for a "serious sex offender" to knowingly enter school property; child solicitation is a qualifying offense, so the statute barred Kirby from schools.
Kirby sought post-conviction relief arguing his plea was not "knowing" because he could not foresee the later school-entry ban and contending the statute was an ex post facto law as applied to him.
The post-conviction court denied relief; the Court of Appeals agreed with Kirby on ex post facto grounds but this court granted transfer and vacated that opinion.
The Supreme Court considered whether Kirby's ex post facto challenge was cognizable in post-conviction proceedings or must be pursued via another vehicle (e.g., declaratory judgment).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kirby can use post-conviction proceedings to challenge the 2015 school-entry restriction as an ex post facto violation	Kirby: The new restriction altered his sentence and made his earlier plea unknowing because it barred conduct he had been permitted to do	State: The restriction is a collateral consequence (statutory, post-conviction rules restrict relief to convictions/sentences) and thus not reviewable in post-conviction proceedings	Held: Post-conviction review is unavailable because the statute imposes a collateral consequence, not part of the conviction or trial-court sentence
Whether a prior probation allowance (attending son's school events) makes the later statutory restriction part of Kirby's sentence	Kirby: Probation permission demonstrates an expectation and thus sentence-related interest	State: Probation ended years before the statute and statutory restrictions are separate collateral consequences	Held: Probation condition does not convert the statute into part of the sentence; claim remains collateral
Whether the court should resolve Kirby's ex post facto claim on the merits in post-conviction proceedings despite procedural posture	Kirby: initially raised plea argument in post-conviction court; on appeal sought injunction against enforcement	State: Did not raise post-conviction-vehicle argument below until rehearing	Held: Court declines to find waiver issues dispositive and resolves scope-of-rules question de novo; still denies post-conviction relief on basis of vehicle
Proper forum to adjudicate Kirby's ex post facto challenge	Kirby wanted post-conviction relief	State argued post-conviction was wrong vehicle; court suggests alternative	Held: Declaratory-judgment action is an appropriate (and established) vehicle to resolve as-applied ex post facto claims against statutory restrictions

Key Cases Cited

State v. Holtsclaw, 977 N.E.2d 348 (standard of review/de novo review of rule interpretation)
Hampton v. State, 961 N.E.2d 480 (post-conviction relief must be based on grounds enumerated in the post-conviction rules)
Kling v. State, 837 N.E.2d 502 (post-conviction relief generally limited to conviction or sentence)
D.A. v. State, 58 N.E.3d 169 (statutory restrictions on offenders are collateral consequences)
Chaidez v. United States, 568 U.S. 342 (sex-offender registration characterized as collateral consequence)
Gonzalez v. State, 980 N.E.2d 312 (post-sentence legislative changes like lifetime registration are collateral consequences)
Reed v. State, 856 N.E.2d 1189 (post-conviction rules limit challenges to trial-court sentence)
Lemmon v. Harris, 949 N.E.2d 803 (ex post facto claims often raised via declaratory-judgment actions)
Greer v. Buss, 918 N.E.2d 607 (declaratory-judgment actions appropriate for ex post facto challenges despite other statutory remedies)