Court of Appeals of Indiana | Opinion 34A02-1609-CR-2060 | August 31, 2017 Page 1 of 15

ATTORNEY FOR APPELLANT

Alan D. Wilson

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Douglas Kirby,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

August 31, 2017

Court of Appeals Case No.

34A02-1609-CR-2060

Appeal from the Howard Superior 

Court

The Honorable George A. 

Hopkins, Judge

Trial Court Cause No.

34D04-1001-FD-11

Bradford, Judge.
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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 postconviction 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.
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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 
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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.
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[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).
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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 Kirby5

[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. 
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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.
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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.” 
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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,” MendozaMartinez, 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 
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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.
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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 
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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 
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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 
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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
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[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.