Judges find 2015 law unconstitutional as applied to registered sex offender

A 2015 law meant to prohibit certain sex offenders from entering school property is unconstitutional as it applies to a Howard County man who has already completed his punishment for his 2010 child solicitation conviction, the Indiana Court of Appeals ruled Thursday.

In January 2010, Douglas Kirby was charged with Class C felony child solicitation after he was accused of using a computer to solicit a teenager for sex. Kirby agreed to plead guilty to the less-included offense of Class D felony child solicitation, which the trial court accepted.

As part of his plea agreement, Kirby was sentenced to a term of 18 months, all suspended to probation, and was subject to the special recommended probation conditions for adult sex offenders, including an order for him to register as a sex offender for 10 years. However, Kirby was granted permission to enter school property to attend and observe his son’s school activities.

After completing his probation, Kirby successfully petitioned to have his conviction reduced to a Class A misdemeanor in February 2015. But the following July 1, the Unlawful Entry Statute went into effect, making it a Level 6 felony for individuals convicted of certain crimes, include Kirby’s crime, to enter school property.

After learning of the statute, Kirby filed a petition for post-conviction relief, which was denied after an evidentiary hearing. He then appealed in Douglas Kirby v. State of Indiana, 34A02-1609-CR-2060, arguing the statute, as applied to him, is unconstitutional because it amounts to retroactive punishment in violation of the Ex Post Facto Clause.

The Indiana Court of Appeals agreed Thursday and reversed the denial of Kirby’s PCR petition. In a unanimous opinion, Judge Cale Bradford wrote that under Indiana’s “intent-effects” test used to evaluate constitutional ex post facto claims, each of the seven factors in Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009), weigh in favor of being punitive against Kirby, which means the statute is a violation of the Ex Post Facto Clause as it relates to him.

“Importantly, the record is devoid of any suggestion that Kirby behaved inappropriately at any time while one school property,” Bradford said. “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. To suddenly deny Kirby of the opportunity to attend his son’s activities for no reason other than his prior conviction is excessive.”