A Howard County father is currently unable to attend his son’s school activities after the Indiana Supreme Court denied his bid for post-conviction relief from a law that bars serious sex offenders from entering school property. However, the court also pointed the father to a possible alternative that could provide the relief he seeks.
That decision, reached Friday in Douglas Kirby v. State of Indiana, 18S-CR-79, comes eight years after Douglas Kirby pleaded guilty to child solicitation. Kirby served 18 months of probation that prohibited him from entering school property, but he was permitted to visit his son’s school to watch him participate in on-campus activities.
Kirby’s probation ended in 2012, but when Indiana Code section 35-42-4-14 went into effect in 2015, it became a Level 6 felony for “serious sex offenders” such as Kirby to knowingly or intentionally enter school property. The Howard County man sought relief from the statute via a petition for post-conviction relief, arguing he could not have “knowingly” pleaded guilty because he did not know he would eventually be prohibited from entering school property. He also claimed the statute was an unconstitutional ex post facto punishment as applied to him.
The Howard Superior Court denied Kirby’s requested relief, but the Indiana Court of Appeals agreed with Kirby and unanimously reversed the lower court’s decision in August. The case then went to the Indiana Supreme Court last month, and the justices affirmed the trial court’s decision on Friday.
In reaching its decision, Chief Justice Loretta Rush wrote for the unanimous court that Kirby sought relief from a collateral consequence, rather than from his conviction or sentence.
“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,” Rush wrote. “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.”
“…In sum, when the post-conviction rules allow challenges to a ‘sentence,’ they mean only the trial court’s sentence on the conviction at hand,” Rush continued. “Since Kirby’s ex post facto claim challenges a collateral consequence rather than his conviction or sentence, post-conviction review is unavailable.”
Though post-conviction relief is not available to Kirby, the court noted he could pursue his claim through a declaratory judgment action. The justices made a similar suggestion during last month’s oral argument.
“Indeed, Indiana caselaw shows that ex post facto claims like Kirby’s are often raised through declaratory judgment actions,” the chief wrote. “And our Court of Appeals has held that declaratory-judgment actions are appropriate vehicles for ex post facto clams even when other statutory remedies are available, given the burdens imposed by sex-offender registration requirements.”
All justices concurred.