                                                                         FILED
                                                                    Mar 04 2019, 10:35 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Alan D. Wilson
Attorney General of Indiana                                Kokomo, Indiana
Stephen R. Creason
Chief Counsel
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          March 4, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-PL-2334
        v.                                                 Appeal from the Howard Superior
                                                           Court
Douglas Kirby,                                             The Honorable George A.
Appellee-Plaintiff.                                        Hopkins, Judge
                                                           Trial Court Cause No.
                                                           34D04-1805-PL-334



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                            Page 1 of 21
                                                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
      Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 2 of 21
                 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



      1
          Accordingly, we are not precluded from reviewing this issue again as Kirby asserts.


      Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                         Page 3 of 21
      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.




      Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019           Page 4 of 21
[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 scheme into a
              criminal penalty; if so, then retroactive application of the law
              violates the Ex Post Facto Clause.


      Harris, 949 N.E.2d at 810 (citations omitted).


              I.       Whether the General Assembly Intended to Impose Punishment

[7]   When analyzing the first step of the test, we consider “what type of scheme” the

      General Assembly intended. McVey v. State, 56 N.E.3d 674, 679 (Ind. Ct. App.

      2016). Specifically,


              If the legislature’s purpose was to impose punishment, then the
              inquiry ends and an ex post facto violation is found. If, however,
              the legislature’s intent was regulatory or civil in nature, then the
              court must move to the second prong of the inquiry to determine
              whether the effects of the Act are so punitive as to transform the
              regulatory scheme into a criminal penalty. Because there is no
              available legislative history and the Act does not contain a

      Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 5 of 21
              purpose statement, our Supreme Court has consistently assumed
              without deciding that the legislature’s intent in passing the Act
              was to create a civil, regulatory, non-punitive scheme and then
              moved to the second part of the test.


      Id. at 680 (citations omitted). We agree with the McVey court’s analysis

      regarding the purpose of the Statute. We can, therefore, assume that the

      purpose of the Statute is a civil, regulatory, non-punitive scheme. Accordingly,

      we move to the second part of the test.


                           II.      Whether the Effect of the Statute is Punitive

[8]   For the second part of the test, we consider the test as put forth in Kennedy v.

      Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554 (1963). The Mendoza-

      Martinez factors are:


              (1) Whether the sanction involves an affirmative disability or
              restraint, (2) whether it has historically been regarded as a
              punishment, (3) whether it comes into play only on a finding of
              scienter, (4) whether its operation will promote the traditional
              aims of punishment-retribution and deterrence, (5) whether the
              behavior to which it applies is already a crime, (6) whether an
              alternative purpose to which it may rationally be connected is
              assignable for it, and (7) whether it appears excessive in relation
              to the alternative purpose assigned.


      State v. Pollard, 908 N.E.2d 1145, 1150 (Ind. 2009) (internal citations omitted).

      “No one factor is determinative. [O]ur task is not simply to count the factors

      on each side, but to weigh them.” Id. In doing so, the seventh factor is weighed

      most heavily. See McVey, 56 N.E.3d at 681.


      Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019             Page 6 of 21
[9]    Here, we are again persuaded by McVey. In McVey, the defendant argued that

       application of the Statute to him violated Indiana’s ex post facto provision

       “because he committed the qualifying offense (child molesting) in 2001, well

       before the unlawful-entry Statute went into effect on July 1, 2015.” McVey, 56

       N.E.3d at 679. McVey wanted to enter school grounds to take a CDL class.

       See id. at 681. After weighing the seven Mendoza-Martinez factors, discussed

       above, a panel of our court concluded the Statute was not punitive as applied to

       McVey. The same result is required here.


                                    A. Affirmative Disability or Restraint

[10]   In comparing McVey to the present case, the first factor, which discusses

       “Affirmative Disability or Restraint,” does put slightly more of a restraint on

       Kirby than it did on McVey. McVey sought to enter a school because he

       wanted to take a CDL class. Our court, however, found that “McVey does not

       allege that this is the only place where he can take the class. And it appears that

       McVey started the CDL process after the [Statute] went into effect on July 1,

       2015.” Id. The record is clear that Kirby wants to see his son participate in

       school activities, which his son has been doing for years with Kirby observing.


[11]   Still, taking the same approach as McVey, we find that the restraint here is

       starkly different from the restraint in Pollard. In Pollard, our Supreme Court

       found that the residential statute, which prohibited a registered sex offender

       from “knowingly or intentionally resid[ing] within 1,000 feet of school

       property, a youth-program center, or a public park,” would prohibit Pollard

       from living in a house that he had owned and resided in for approximately
       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019         Page 7 of 21
       twenty years. Pollard, 908 N.E.2d at 1147. Our Supreme Court noted, “A sex

       offender is subject to constant eviction because there is no way for him or her to

       find a permanent home in that there are no guarantees a school or youth

       program center will not open within 1,000 feet of any given location.” Id. at

       1150.


[12]   The restraint here, which is seemingly for only a limited time 2, does not limit

       where Kirby can live. Similarly, Kirby is not incurring any additional cost or

       relocating, as Pollard was required to do—without guarantee that he would not

       have to do so again. As the State articulates in its brief, a school is unique in

       that the school can, in many cases, limit its visitors through the use of visitor

       passes, locked doors, and other methods. This factor weighs against finding the

       Statute as punitive as applied to Kirby.


                    B. Sanctions That Have Historically Been Considered Punishment

[13]   The second factor, which discusses “Sanctions That Have Historically Been

       Considered Punishment,” necessarily requires us to determine the classification

       of the Statute. The prohibition from entering school grounds as a result of the

       Statute was a mere “collateral consequence” of Kirby’s conviction, not a

       punishment. Our Supreme Court’s opinion in Kirby v. State, 95 N.E.3d 518

       (Ind. 2018), which distinguishes Kirby’s prohibition that he not enter school




       2
           The State’s brief states that Kirby “must register as a sex offender until 2022.” Appellant’s Br. p. 7.


       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                                      Page 8 of 21
grounds from his sentence, provides support for this proposition. In Kirby, our

Supreme Court held:


        We agree with the State. A criminal sentence is the punishment
        ordered by the trial court after conviction—nothing more.


                                               *****


        By contrast, when the legislature imposes restrictions on people
        convicted of certain crimes, those restrictions are not part of a
        sentence, but are collateral consequences. See D.A. v. State, 58
        N.E.3d 169, 173 (Ind. 2016). Sex-offender registration itself is
        thus a collateral consequence. Chaidez v. United States, 568 U.S.
        342, 349 n.5, 133 S.Ct. 1103, 185 (L.Ed.2d 149 (2013); see
        generally Ind. Code ch. 11-8-8 (2017) (imposing sex-offender
        registration requirements). The legislature can, for example,
        impose a lifetime registration requirement even after a sentence
        has been fully served. See Gonzalez v. State, 980 N.E.2d 312, 315
        (Ind. 2013); Jensen v. State, 905 N.E.2d 384, 394-95 (Ind. 2009).
        Whether or not such a belated change is an ex post facto
        violation, it is not part of a sentence. See Gonzalez, 980 N.E.2d at
        315.


        And Kirby’s school-entry restriction is even more collateral than
        his registration requirement; after all, the restriction has sex-
        offender registration as a prerequisite. I.C. § 35-42-4-14(a). That
        removes the restriction another step from the conviction that led
        to the registration requirement. So while Kirby’s child-
        solicitation conviction started the domino effect that led to his
        school-entry restriction, that restriction is not part of his
        conviction or sentence.


Id. at 520-21.


Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 9 of 21
[14]   Just as our Supreme Court identified the differences between Kirby’s collateral

       consequences and his sentence, there is a distinction between collateral

       consequences and punishment. See State v. Reinhart, 112 N.E.3d 705, 713 (Ind.

       2018) (holding that “the required forfeiture of a defendant’s driver’s license is a

       collateral consequence of a guilty plea and conviction, not a punishment

       imposed by the court”) (citations omitted); see also Healey v. Carter, 109 N.E.3d

       1043, 1050-51 (Ind. Ct. App. 2018) (holding that Healey’s sex offender

       registration did not constitute a penalty or punishment for purposes of the Sixth

       Amendment because it was a “collateral consequence”). This factor weighs

       against finding the Statute to be punitive as applied to Kirby.


                                               C. Finding of Scienter

[15]   For the third factor, regarding a finding of scienter, we consider that “‘[t]he

       existence of a scienter requirement is customarily an important element in

       distinguishing criminal from civil statutes.’” Wallace, 905 N.E.2d at 381

       (quoting Kansas v. Hendricks, 521 U.S. 346, 362 (1997)). If a sanction is not

       linked to a showing of mens rea, it is less likely to be intended as punishment.

       Pollard, 908 N.E.2d at 1151.


[16]   The Statute includes a showing of mens rea; in other words, it requires that the

       serious sex offender “knowingly or intentionally” entered school property. Ind.

       Code § 35-42-4-14(b). Also, child solicitation, the underlying qualifying offense

       that invoked the Statute in this case, requires a finding of scienter. Ind. Code

       § 35-42-4-6. As such, this factor favors treating the Statute as punitive as

       applied to Kirby.
       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019         Page 10 of 21
                                      D. Traditional Aims of Punishment

[17]   In Hollen v. State, 994 N.E.2d 1166, 1173 (Ind. Ct. App. 2013), a panel of our

       court addressed the fourth factor, regarding “Traditional Aims of Punishment,”

       as follows:


               The fourth factor considers whether the statute’s operation will
               promote the traditional aims of punishment—retribution and
               deterrence. The more [the Sex Offender Registration Act (“the
               Act”)] promotes these traditional aims of punishment, the more
               likely it is to be punitive. Although lifetime registration required
               by the Act has a likely deterrent effect and promotes community
               condemnation of offenders, it also serves a valid regulatory
               function by providing the public with information related to
               community safety. Under the circumstances, this factor weighs
               in favor of treating the effects of the Act as non-punitive.


       Hollen, 994 N.E.2d at 1173. The analysis is similar in this case as well. While

       the Statute is certainly a deterrent, in prohibiting Kirby from being near

       children the same age as his victim, the Statute also has a purely regulatory

       effect. Disallowing registered sex offenders from school grounds assists school

       officials by protecting children. The Statute eliminates one threat to student

       safety and serves a valid regulatory function on school grounds. This factor

       weighs against finding the Statute as punitive as applied to Kirby.


                                 E. Application Only to Criminal Behavior

[18]   “Under the fifth factor[,] we consider ‘whether the behavior to which [the

       Statute] applies is already a crime.’” Pollard, 908 N.E.2d at 1152 (quoting

       Mendoza-Martinez, 372 U.S. at 168). “The fact that a statute applies only to


       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 11 of 21
       behavior that is already and exclusively criminal supports a conclusion that its

       effects are punitive.” Id. In Pollard, our Supreme Court noted that “[t]here is

       no question that it is the determination of guilt for a qualifying offense that

       exposed Pollard to further criminal liability under the residency restriction

       statute. We conclude this factor favors treating the effects of the residency

       statute as punitive when applied to Pollard.” Id. The same analysis applies

       here. Because there is no question that it was the determination of guilt for a

       qualifying offense that exposed Kirby to further criminal liability under the

       Statute, this factor favors treating the Statute as punitive as applied to Kirby.


                                     F. Advancing a Non-Punitive Interest

[19]   The sixth factor addresses the “Advancing a Non-Punitive Interest” analysis.

       We find the analysis in this factor to be the same as the analysis on the second

       factor regarding whether the sanctions have historically been regarded as

       punishment. Because the Statute is merely a collateral consequence, and

       because the purpose of the Statute is to advance the safety of children, this

       factor weighs against finding the Statute to be punitive as applied to Kirby.


                      G. Excessiveness in Relation to State’s Articulated Purpose

[20]   Finally, we agree with the State’s analysis of the seventh factor, which relates to

       the “Excessiveness in Relation to the State’s Articulated Purpose.” This factor

       is weighed most heavily. See McVey, 56 N.E.3d at 681. The purpose of this

       Statute is to prevent those who commit qualifying sex offenses and, therefore,

       are required to register as sex offenders, from entering school grounds where


       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019         Page 12 of 21
       children are present. The purpose of the Statute is to safeguard children from

       potential sexual predators, which outweighs Kirby’s interests in attending

       school functions.


[21]   Kirby was charged with “knowingly or intentionally solicit[ing] a child

       presumed to be the age of 15, a child at least fourteen years of age but less than

       sixteen years of age, to engage in sexual intercourse. . . .” Appellant’s App.

       Vol. II p. 89. Kirby pleaded guilty to Child Solicitation, a Class D felony, as a

       lesser included offense. 3 In McVey, the panel distinguished cases in which a

       defendant is convicted of crimes involving children from cases in which a

       defendant is not convicted of crimes involving children. However, because

       Kirby, like McVey, was convicted of a crime involving a child, this factor is

       non-punitive as applied to Kirby. See McVey, 56 N.E.3d at 681.


[22]   It is not excessive to prohibit Kirby from attending his son’s school events

       because of his prior criminal conviction. Presumably, being a registered sex

       offender is inconvenient, but it is not excessive to limit convicted sex offenders

       from regularly interacting with children. Kirby’s required sex offender

       registration—for a limited time—advances the Statute’s requirement to protect

       children from those who present a threat to them. See Harris, 949 N.E.2d at 813

       (holding that defendant’s requirement, pursuant to an amended statute, that he

       register as a sexually violent predator was not excessive in relation to the



       3
        The CCS indicates that the Class D felony was later converted to a Class A misdemeanor. See Appellant’s
       App. Vol. II p. 82.

       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                           Page 13 of 21
       alternative purpose assigned because the law advanced the “legitimate

       regulatory purpose of public safety”). This factor weighs against finding the

       Statute to be punitive as applied to Kirby.


[23]   For completeness, we emphasize that the exception to Kirby’s probation

       conditions entered by the trial court, which allowed Kirby to attend certain

       school activities in which his son and grandchildren participated, should not be

       a basis for finding that the Statute is unconstitutional as applied to Kirby. The

       exception applied to a condition of Kirby’s probation that he was prohibited

       from visiting all schools, playgrounds, and other locations unless his child or

       grandchildren were participating. Kirby’s probation and that probation

       exception ended in 2012, several years before the legislature enacted Indiana

       Code Section 35-42-4-14. Still, in his petition for declaratory judgment, Kirby

       uses the probation exception to emphasize why, in his view, the Statute was

       unconstitutional as it applied to him. Kirby’s petition for declaratory judgment

       states, “from the time of his sentencing in 2010 through the time that his

       sentence was reduced in early 2015, Kirby was allowed to go on to school

       property to participate in his son’s educational and extra[]curricular activities.”

       Appellant’s App. Vol. II p. 6.


[24]   The trial court agreed with Kirby that, because “[t]he sentencing court allowed

       the petitioner to go onto school property to attend his son’s school functions

       and sporting events before the 2015 amendment,” the Statute was

       unconstitutional as applied to Kirby. Id. at 118. Because Kirby’s probation and

       probation exception ended in 2012, the probation exception was no longer in

       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019        Page 14 of 21
       effect and, accordingly, is not determinative here. 4 Moreover, the trial court’s

       order, declaring the Statute as unconstitutional as applied to Kirby, also

       seemingly still limits Kirby’s behaviors, stating only that the “petitioner may

       enter onto school property to attend his [son’s] school functions and sporting

       events.” Id. It seems odd that the trial court found the law unconstitutional as

       applied to Kirby, but still limited Kirby’s conduct to what was permitted by the

       trial court during probation. Nonetheless, we believe that the trial court’s

       implication that the probation exception was the driving force behind a finding

       of the Statute’s unconstitutionality as applied to Kirby was incorrect.


[25]   After weighing all of the factors in Mendoza-Martinez, and especially the seventh

       factor, regarding excessiveness in relation to the articulated purpose, the Statute

       is not unconstitutional as applied to Kirby. Accordingly, we reverse and

       remand.


                                                    Conclusion

[26]   Based on the foregoing, we conclude that the Statute is not unconstitutional as

       applied to Kirby. Accordingly, we reverse and remand.


[27]   Reversed and remanded.


       May, J. concurs.




       4
         In Kirby’s petition for declaratory judgment, he concedes as much, stating: “Kirby successfully completed
       all of the terms of his probation.” Appellant’s App. Vol. II p. 6.

       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                              Page 15 of 21
Baker, J., dissents with opinion.




Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019   Page 16 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                          Court of Appeals Case No.
                                                                  18A-PL-2334
       Appellant-Defendant,

               v.

       Douglas Kirby,
       Appellee-Plaintiff




       Baker, Judge, dissenting.


[28]   I respectfully dissent. After weighing the seven factors listed in Mendoza-

       Martinez, I would hold that the Statute is unconstitutional as applied to Kirby.


[29]   First, regarding whether the sanction involves an affirmative disability or

       restraint, here, the disability or restraint imposed by the Statute is neither minor

       nor indirect. The record reveals that in sentencing Kirby in 2010, the trial court

       explicitly gave Kirby permission to enter school property to attend and observe

       “activities involving his son.” Appellant’s App. Vol. II p. 96. Kirby was

       permitted to do so for five years before the Statute went into effect.

       Importantly, the record is devoid of any suggestion that Kirby behaved

       inappropriately at any time while on school property. Given these facts, I am
       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019                      Page 17 of 21
       persuaded that this factor clearly favors treating the effects of the Statute as

       punitive as applied to Kirby.


[30]   The majority believes that this factor restrains Kirby only slightly more than it

       did McVey. As the majority notes, sometime after the Statute went into effect,

       McVey wanted to enter a school to take a CDL class that he could have taken

       elsewhere. But here, since before the Statute went into effect, Kirby has been

       entering his son’s school to see his son participate in school activities. Kirby

       wishes to continue to do so, and he cannot do so elsewhere. As this Court

       stated in McVey, “[a]n offender who is prohibited from entering school property

       to take a class after the unlawful-entry statute became effective is very different

       from an offender who is prohibited from living in a house that the offender

       owned and lived in for twenty years before the residency-restriction statute

       became effective. The effects to McVey are minor in comparison.” 56 N.E.3d

       at 681. Because Kirby was able to enter his son’s school for five years before

       the Statute went into effect, his situation is more akin to the homeowner

       affected by a residency-restriction statute than to McVey’s. I see the logic in the

       majority’s reasoning that a school can limit its visitors, yet a school presumably

       does not limit parental attendance at a child’s activities for which parents are

       welcomed or encouraged to attend. In other words, the effect of this Statute to

       Kirby is not minor.


[31]   Turning to the historical punishment factor, schools—especially school sporting

       events—generally have been open to members of the public. It seems

       reasonable to assume, therefore, that the act of restricting an individual from

       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 18 of 21
       entering school property has historically been considered a form of punishment,

       whether for an act committed on school grounds or in the community. This is

       especially true considering that until the Statute went into effect, Kirby had

       been permitted to enter school property to observe his son’s activities, even after

       he pleaded guilty to and was convicted of child solicitation. As such, I am

       persuaded that this factor also favors treating the effects of the Statute as

       punitive as applied to Kirby.


[32]   As for the third factor addressing scienter, I concur with the majority that it

       favors treating the effects of the Statute as punitive as applied to Kirby.


[33]   The fourth factor considers the traditional aims of punishment. In Pollard, the

       Indiana Supreme Court found that the residency restriction statute, which limits

       where sex offenders can reside, was an “even more direct deterrent to sex

       offenders than the [Indiana Sex Offender Registration Act]’s registration and

       notification regime.” 908 N.E.2d at 1152. One may reasonably assume that

       like the residency restriction statute, the Statute is designed to reduce the

       likelihood of future crimes by depriving the offender of the opportunity to

       commit those crimes. In this sense, the Statute is a direct deterrent to sex

       offenders. I find our Supreme Court’s conclusion regarding this factor in Pollard

       to be instructive and am similarly persuaded that this factor favors treating the

       effects of the Statute as punitive as applied to Kirby.


[34]   I concur with the majority regarding the fifth and sixth factors. The fifth factor

       considers whether the behavior to which the Statute applies is already a crime; I


       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019         Page 19 of 21
       concur that this factor favors treating the effects of the Statute as punitive as

       applied to Kirby. The sixth factor considers whether the Statute advances a

       legitimate, regulatory purpose; I concur that this factor favors treating the

       effects of the Statute as non-punitive as applied to Kirby.


[35]   Finally, the seventh factor considers whether the Statute appears excessive in

       relation to the alternative purpose assigned. It is undisputed that the Statute

       applies to Kirby. It is also undisputed that there are legitimate, non-punitive

       purposes of the Statute—public safety and protection of children. The Statute,

       however, does not consider the seriousness of the crime, the relationship

       between the victim and the offender, or an initial determination of the risk of re-

       offending. See Pollard, 908 N.E.2d at 1153 (noting that the residentiary

       restrictions statute that applies to certain sex offenders failed to consider the

       seriousness of the offender’s crime, the relationship between the victim and the

       offender, or an initial determination of the risk of re-offending). In considering

       whether the residency restriction statute was unconstitutional as applied to a

       particular offender, our Supreme Court found that by restricting offenders

       “without considering whether a particular offender is a danger to the general

       public, the statute exceeds its non-punitive purposes.” Id. I believe that this

       logic applies equally to the Statute.


[36]   At the time of Kirby’s sentencing, the trial court explicitly granted Kirby

       permission to enter school property to observe activities involving his son. It is

       unreasonable to think that the trial court would have made this exception had it

       believed Kirby to be a danger to society in these limited circumstances. Kirby

       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019          Page 20 of 21
       entered school property to observe his son’s activities for nearly five years

       before the Statute went into effect; the record does not show that he behaved

       inappropriately during this time. Also, by the time the Statute went into effect,

       Kirby had completed all forms of punishment imposed by the trial court except

       for his continued registration on the sex offender registry.


[37]   While I understand the majority’s position regarding this factor, I find that to

       suddenly deny Kirby the opportunity to attend his son’s activities—which he

       could do while completing his punishment through probation—only because of

       his prior conviction is excessive. As such, I am persuaded that this factor favors

       treating the effects of the Statute as punitive as applied to Kirby.


[38]   After considering each of the above-discussed factors, I would conclude, as did

       the trial court, that the Statute is unconstitutional as applied to Kirby because it

       amounts to retroactive punishment in violation of the ex post facto clause of the

       Indiana Constitution. Therefore, I would affirm.




       Court of Appeals of Indiana | Opinion 18A-PL-2334 | March 4, 2019         Page 21 of 21
