                                                                                        FILED
                                                                                   08/31/2017, 9:22 am
                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Alan D. Wilson                                             Curtis T. Hill, Jr.
Kokomo, Indiana                                            Attorney General of Indiana

                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Douglas Kirby,                                             August 31, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           34A02-1609-CR-2060
        v.                                                 Appeal from the Howard Superior
                                                           Court
State of Indiana,                                          The Honorable George A.
Appellee-Respondent.                                       Hopkins, Judge
                                                           Trial Court Cause No.
                                                           34D04-1001-FD-11



Bradford, Judge.




Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017               Page 1 of 15
                                              Case Summary
[1]   On November 5, 2010, Appellant-Petitioner Douglas Kirby pled guilty to one

      count of Class D felony child solicitation. Kirby was sentenced to eighteen

      months on probation, which he successfully completed. Under the terms of his

      probation, Kirby was granted explicit permission to enter school property for

      the purpose of observing his son’s school activities. He was also required to

      register as a sex offender for a term of ten years. Kirby’s conviction was

      thereafter reduced to a Class A misdemeanor. Despite the reduction in his

      sentence, the requirement that he register as a sex offender remained in place.


[2]   On July 1, 2015, the Unlawful Entry Statute1 (“the Statute”) went into effect.

      The Statute makes it a Level 6 felony for individuals convicted of certain crimes

      to enter onto school property. It is undisputed that the Statute applies to Kirby.


[3]   Kirby filed an amended petition for post-conviction relief (“PCR”) on June 20,

      2016.2 Following an evidentiary hearing, the post-conviction court denied

      Kirby’s amended PCR petition. Kirby appealed, arguing that the post-

      conviction court erred in denying his amended PCR petition because the

      Statute (1) is unconstitutional as applied to him because it amounts to

      retroactive punishment in violation of the Ex Post Facto Clause contained in

      the Indiana Constitution (“the Ex Post Facto Clause”); (2) violates his due




      1
          Ind. Code § 35-42-4-14.
      2
          Kirby’s original PCR petition was filed on April 15, 2016.


      Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 2 of 15
      process interest in the care, custody, and control of his son; and (3) is

      unconstitutionally vague. Review of the facts and circumstances of this case

      convince us that as applied to Kirby, the Statute is unconstitutional as it

      constitutes a retroactive punishment in violation of the Ex Post Facto Clause.

      We therefore reverse the judgment of the post-conviction court as to the

      enforcement of the Unlawful Entry Statute but leave in place Kirby’s

      underlying conviction for Class D felony child solicitation.



                             Facts and Procedural History
[4]   On January 11, 2010, Kirby was charged with Class C felony child solicitation.

      In charging Kirby, the State alleged that Kirby, being at least twenty-one years

      old, “did knowingly or intentionally solicit 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, said solicitation having been accomplished by the

      use of a computer network[.]” Appellant’s App. Vol. II, p. 15. On November

      5, 2010, Kirby pled guilty to the lesser-included offense of Class D felony child

      solicitation.


[5]   The trial court accepted Kirby’s plea, entered judgment of conviction for Class

      D felony child solicitation, and sentenced him to a term of eighteen months, all

      of which was suspended to probation. The trial court imposed both the

      standard rules of probation and the special recommended probation conditions

      for adult sex offenders on Kirby, with the exception being that the trial court

      explicitly granted Kirby permission to enter onto school property for the

      Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 3 of 15
      purpose of attending and observing his son’s school activities. 3 Kirby was also

      ordered to register as a sex offender for a term of ten years.


[6]   Kirby successfully completed all of the terms of his probation and, on

      November 21, 2014, petitioned to have his conviction reduced to a

      misdemeanor. On February 10, 2015, the trial court granted Kirby’s petition,

      reducing Kirby’s conviction to a Class A misdemeanor.


[7]   On July 1, 2015, the Statute went into effect. The Statute defines a serious sex

      offender as a person required to register as a sex offender and who has

      convicted of certain offenses, including child solicitation. Ind. Code § 35-42-4-

      14(a)(1)(F). The Statute provides that a serious sex offender “who knowingly

      or intentionally enters school property commits unlawful entry by a serious sex

      offender, a Level 6 felony.” Ind. Code § 35-42-4-14(b). As is stated above, it is

      undisputed that the Statute applies to Kirby.


[8]   After being notified of the Statute’s application, Kirby filed a PCR petition on

      April 16, 2016, and an amended PCR petition on June 20, 2016. Following an

      evidentiary hearing, the post-conviction court denied Kirby’s amended PCR

      petition. This appeal follows.



                                  Discussion and Decision


      3
        At all times relevant to this case, Kirby had custody of his now-teenage son. His son was, and continues to
      be, involved in numerous school activities.

      Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017                       Page 4 of 15
[9]    Kirby contends that the post-conviction court erred in denying his amended

       PCR petition because the unlawful entry statute is unconstitutional as applied

       to him because it amounts to retroactive punishment in violation of the Ex Post

       Facto Clause.4 Alternatively, Kirby contends that the unlawful entry statute (1)

       violates his due process interest in the care, custody, and control of his son and

       (2) is unconstitutionally vague.


                                         I. Standard of Review
[10]   Post-conviction procedures do not afford the petitioner with a super-appeal.

       Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

       narrow remedy for subsequent collateral challenges to convictions, challenges

       which must be based on grounds enumerated in the post-conviction rules. Id.

       A petitioner who has been denied post-conviction relief appeals from a negative

       judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

       v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

       (Ind. Ct. App. 1999), trans. denied.


[11]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

       745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his




       4
         We have previously found similar ex post facto challenges to be timely even before the appellant has been
       charged with violating the Statute. See McVey v. State, 56 N.E.3d 674, 679 n.9 (Ind. Ct. App. 2016) (quoting
       Smith v. Wis. Dep’t of Agric., 23 F.3d 1134, 1141) (7th Cir. 1994) for the proposition that a person “should not
       be required to face the Hobson’s choice between forgoing behavior that he believes to be lawful and violating
       the challenged law at the risk of prosecution”); see also Greer v. Buss, 918 N.E.2d 607, 614 (Ind. Ct. App. 2009)
       (acknowledging that a person need not first expose himself to actual arrest or prosecution to be entitled to
       challenge whether a particular statute is unconstitutional as applied to him).

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017                          Page 5 of 15
       claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

       Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

       a petitioner must convince this court that the evidence, taken as a whole, “leads

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

       conflict and leads to but one conclusion, and the post-conviction court has

       reached the opposite conclusion, that its decision will be disturbed as contrary

       to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

       The post-conviction court is the sole judge of the weight of the evidence and the

       credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

       We therefore accept the post-conviction court’s findings of fact unless they are

       clearly erroneous but give no deference to its conclusions of law. Id.


           II. Constitutionality of the Statute as Applied to Kirby                                                 5




[12]            Article I, section 24 of the Indiana Constitution provides that
                “[n]o ex post facto law ... shall ever be passed.” Among other
                things, “[t]he ex post facto prohibition forbids ... the States to
                enact any law ‘which imposes a punishment for an act which was
                not punishable at the time it was committed; or imposes
                additional punishment to that then prescribed.’” Weaver v.



       5
         Seemingly given the post-conviction court’s statement that Kirby did not ask the court to consider the
       constitutionality of the Statue, the State chose not to address the merits of Kirby’s claim that the Statute was
       unconstitutional as applied to him because it amounted to a retroactive punishment in violation of the Ex
       Post Facto Clause. Instead, the State framed its argument as whether the Statute impacted the knowing and
       voluntary nature of Kirby’s guilty plea. Despite the post-conviction court’s statement to the contrary, review
       of Kirby’s post-conviction pleadings demonstrate that Kirby did challenge the constitutionality of the Statute
       before the post-conviction court. As such, because we believe Kirby sufficiently challenged the
       constitutionality of the Statute below, we will decide Kirby’s claims on appeal as they were presented by
       Kirby.

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017                          Page 6 of 15
               Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)
               (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18
               L.Ed. 356 (1866)). The underlying purpose of the Ex Post Facto
               Clause is to give effect to the fundamental principle that persons
               have a right to fair warning of that conduct which will give rise to
               criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093
               (Ind. 2006).


       State v. Pollard, 908 N.E.2d 1145, 1148-49 (Ind. 2009).


[13]   In 2009, the Indiana Supreme Court determined that in evaluating ex post facto

       claims under the Indiana Constitution, Indiana Courts apply what is commonly

       referred to as the “intent-effects” test. Id. at 1149 (citing Wallace v. State, 905

       N.E.2d 371, 378 (Ind. 2009)).

               Under this test the court must first determine whether the
               [Indiana General Assembly (“the General Assemblly”)] meant
               the [S]tatute to establish civil proceedings. [Wallace, 905 N.E.2d
               at 378]. If the intention of the legislature was to impose
               punishment, then that ends the inquiry, because punishment
               results. If, however the court concludes the legislature intended a
               non-punitive, regulatory scheme, then the court must further
               examine whether the statutory scheme is so punitive in effect as
               to negate that intention thereby transforming what was intended
               as a civil, regulatory scheme into a criminal penalty. Id.


       Id.


             A. Whether the General Assembly Intended to Impose
                               Punishment
[14]   Whether the General Assembly intended for the Statute to be civil or criminal is

       primarily a matter of statutory construction. Id.
       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 7 of 15
               And as we observed in Wallace for the overall Sex Offender
               Registration Act [(“the Act”)], “it is difficult to determine
               legislative intent since there is no available legislative history and
               the Act does not contain a purpose statement.” [905 N.E.2d at
               383] (quoting Spencer v. O’Connor, 707 N.E.2d 1039, 1043 (Ind.
               Ct. App. 1999)).


       Id.


[15]   In McVey, we considered whether the General Assembly intended for the

       Statute to be civil or criminal in nature. 56 N.E.3d at 679-80. We noted that

       “[b]ecause there is no available legislative history and the Act does not contain

       a 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. We then made the same assumption, again without deciding

       the question, and moved on to the second prong of the analysis. Id. We will do

       the same here.


                   B. Whether the Effect of the Statute is Punitive
[16]           In assessing a statute’s effects we are guided by seven factors that
               are weighed against each other: “[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.”

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 8 of 15
               Wallace, 905 N.E.2d at 379 (quoting Kennedy v. Mendoza-Martinez,
               372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963))
               (alterations in original). No one factor is determinative. “[O]ur
               task is not simply to count the factors on each side, but to weigh
               them.” Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217,
               1224 (1992)).


       Pollard, 908 N.E.2d at 1150 (brackets in original). We address each factor in

       turn.


                                  1. Affirmative Disability or Restraint

[17]           When determining whether a law subjects those within its
               purview to an “affirmative disability or restraint,” Mendoza-
               Martinez, 372 U.S. at 168, 83 S.Ct. 554, the Court inquires “how
               the effects of the Act are felt by those subject to it. If the
               disability or restraint is minor and indirect, its effects are unlikely
               to be punitive.” Smith v. Doe, 538 U.S. 84, 99-100, 123 S.Ct.
               1140, 155 L.Ed.2d 164 (2003).


       Id.


[18]   In this case, the disability or restraint imposed by the Statute is neither minor

       nor indirect. Review of the record reveals that in sentencing Kirby in 2010, the

       trial court explicitly gave Kirby permission to enter school property for the

       purpose of attending and observing “activities involving his son.” Appellant’s

       App. Vol. II, p. 22. Kirby was permitted to do so for a period of 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




       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017    Page 9 of 15
       property. Given these facts, we are persuaded that this factor clearly favors

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


                2. Sanctions that Have Historically been Considered Punishment

[19]   “We next determine ‘whether [the sanction] has historically been regarded as a

       punishment.’” Pollard, 908 N.E.2d at 1150 (quoting Mendoza-Martinez, 372 U.S.

       at 168) (brackets in original). Generally speaking, schools—especially school

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

       to assume, therefore, that the act of restricting an individual from 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 for the purpose of observing his son’s

       activities, even after he pled guilty to and was convicted of child solicitation.

       As such, we are persuaded that this factor also favors treating the effects of the

       Statute as punitive as applied to Kirby.


                                             3. Finding of Scienter

[20]           Third, we consider “whether [the statute] comes into play only
               on a finding of scienter.” Mendoza-Martinez, 372 U.S. at 168, 83
               S.Ct. 554. “The 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, 117 S.Ct. 2072, 138 L.Ed.2d 501
               (1997)). If a sanction is not linked to a showing of mens rea, it is
               less likely to be intended as punishment.



       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 10 of 15
       Id. at 1151 (emphases in original).


[21]   The Statute includes a showing of mens rea, i.e., that the serious sex offender

       “knowingly or intentionally” enters 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. See Ind. Code § 35-42-4-6. As

       such, it would appear that this factor favors treating the effects of the Statute as

       punitive as applied to Kirby.


                                 4. The Traditional Aims of Punishment

[22]   We next consider whether the Statute’s operation will promote the traditional

       aims of punishment. Wallace, 905 N.E.2d at 381. Under the Indiana

       Constitution, the primary objective of punishment is rehabilitation. Id. (citing

       Ind. Const. art. 1, § 18). “And there are other objectives including the need to

       protect the community by sequestration of the offender, community

       condemnation of the offender, as well as deterrence.” Id. (citing Abercrombie v.

       State, 441 N.E.2d 442, 444 (Ind. 1982)).


[23]   “‘Deterrent measures serve as a threat of negative repercussions to discourage

       people from engaging in certain behavior.’” Id. n.12 (quoting Artway v. Attorney

       Gen. of N.J., 81 F.3d 1235, 1255 (3d Cir. 1996)). 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

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 11 of 15
       residency restriction statute, the Statute is designed to reduce the likelihood of

       future crimes by depriving the offender the opportunity to commit those crimes.

       In this sense, the Statute is a direct deterrent to sex offenders. We therefore find

       the Indiana Supreme Court’s finding with regard to this factor in Pollard to be

       instructive and are similarly persuaded that this factor favors treating the effects

       of the Statute as punitive as applied to Kirby.


                               5. Application Only to Criminal Behavior

[24]   “Under the fifth factor we consider ‘whether the behavior to which [the Statute]

       applies is already a crime.’” Id. (quoting Mendoza-Martinez, 372 U.S. at 168).

       “The fact that a statute applies only to behavior that is already and exclusively

       criminal supports a conclusion that its effects are punitive.” Id. (citing Wallace,

       905 N.E.2d at 381). In Pollard, the Indiana 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. We follow the logic employed

       by the Indiana Supreme Court and conclude that because there is no question

       that it was the determination of guilty for a qualifying offense that exposed

       Kirby to further criminal liability under the Statute, this factor favors treating

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


                                  6. Advancing a Non-Punitive Interest

[25]           We next ask whether, in the words of the Supreme Court, “an
               alternative purpose to which [the statute] may rationally be

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 12 of 15
               connected is assignable for it.” Mendoza-Martinez, 372 U.S. at
               168-69, 83 S.Ct. 554. This statement is best translated as an
               inquiry into whether the Act advances a legitimate, regulatory
               purpose. Wallace, 905 N.E.2d at 382-83.


       Id. There is no doubt that the Statute has a purpose other than to simply punish

       sex offenders, that being to promote public safety and to protect children. It is

       certainly reasonable to conclude that restricting sex offenders, especially those

       convicted of acts against children, from entering school property advances

       public safety and helps to protect children. As such, this factor clearly favors

       treating the Statute as non-punitive as applied to Kirby.


                    7. Excessiveness in Relation to State’s Articulated Purpose

[26]   Finally, we determine whether the unlawful entry statute “‘appears excessive in

       relation to the alternative purpose assigned.’” Wallace, 905 N.E.2d at 383

       (quoting Mendoza-Martinez, 372 U.S. at 169). “We give this factor the greatest

       weight.” Pollard, 908 N.E.2d 1145, 1153 (Ind. 2009).


[27]   It is undisputed that the unlawful entry statute applies to Kirby. It is also

       undisputed that there are unquestionably 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 id. (noting that the residentiary restrictions statute which 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

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 13 of 15
       the risk of re-offending). In considering whether the residentiary restrictions

       statute was unconstitutional as applied to a particular offender, the Indiana

       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. We believe that this logic applies

       equally to the Statute.


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

       permission to enter school property for the purpose of observing 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. Kirby

       entered school property for the purpose of observing his son’s activities for

       nearly 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. 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.


[29]   To suddenly deny Kirby of the opportunity to attend his son’s activities for no

       reason other than his prior conviction is excessive. As such, we are persuaded

       that this factor favors treating the effects of the Statute as punitive as applied to

       Kirby.



                                                Conclusion

       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 14 of 15
[30]   After considering each of the above-discussed factors, we conclude that the

       Statute is unconstitutional as applied to Kirby because it amounts to retroactive

       punishment in violation of the Ex Post Facto Clause. Having reached this

       conclusion, we need not consider whether the Statute violates Kirby’s due

       process interest in the care, custody, and control of his son, or is

       unconstitutionally vague.


[31]   The judgment of the post-conviction court is reversed only as to the

       enforcement of the Unlawful Entry Statute.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017   Page 15 of 15
