concluding a school property restriction was not an affirmative disability or restraint despite the plaintiff wanting to observe his son participate in school activities because it did not restrict residency, impose any cost directly or indirectly, and schools restrict all manner of individuals from visiting their premises without being deemed punitive
How later courts described this case
- concluding a school property restriction was not an affirmative disability or restraint despite the plaintiff wanting to observe his son participate in school activities because it did not restrict residency, impose any cost directly or indirectly, and schools restrict all manner of individuals from visiting their premises without being deemed punitive
Written by the judges who cited it.
The opinion
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