The Indiana Supreme Court must decide if a Howard County father can attend his son’s school activities despite his serious sex offender status after hearing arguments Thursday on an ex post facto claim.
After being convicted of child solicitation in 2010, Douglas Kirby was sentenced to 18 months of probation and was ordered to register as a sex offender for 10 years. However, the Howard Superior Court granted Kirby special permission to continue attending his son’s school activities on school property, despite his sex offender status.
But when the Unlawful Entry Statute, Indiana Code section 35-42-4-14, took effect in 2015, Kirby and other serious sex offenders found themselves subject to a Level 6 felony charge if they entered school property. Kirby filed a post-conviction relief petition arguing the statute was unconstitutional as applied to him, and the Indiana Court of Appeals agreed.
The state, however, told the Supreme Court justices during oral arguments in Douglas Kirby v. State of Indiana, 18S-CR-00079, that a post conviction relief petition was not the proper forum for Kirby to challenge the statute as an ex post facto punishment. Instead, Stephen Creason, chief counsel in the Indiana Attorney General’s Office, told the court an action for declaratory and/or injunctive relief would have been more appropriate.
The justices seemed to agree, posing repeated questions to Kirby’s counsel, Alan Wilson, about his client choosing to file for PCR rather than for declaratory judgment. Though Wilson acknowledged there was no caselaw to support the decision to bring Kirby’s pre-enforcement challenge through PCR, he also told the justices there were no rules against that strategy.
But Creason maintained that PCR proceedings are not used to challenge subsequent developments in the law — such as the passage of the Unlawful Entry Statute — if the developments do not affect the validity of the underlying conviction. Here, Kirby’s conviction was and is valid, Creason said, so he likened the restriction on sex offenders entering school property to felons being prohibited from possessing firearms.
“This isn’t punitive,” Creason said.
Because he argued the statue is not punitive, Creason urged the court to overturn the Court of Appeals’ finding of an ex-post fact violation. But Wilson urged the opposite, telling the justices that because the statute changed the nature of Kirby’s probation after his probation was completed, it constituted an impermissible ex-post facto sentence.
Wilson emphasized that he was not asking the court to find the statute unconstitutional, but rather only as applied to Kirby, who was given explicit permission to enter school property despite his serious sex offender status. Wilson also noted his client had willfully completed sex addiction rehabilitation and counseling programs, lessening his threat.
Creason, however, noted that Kirby’s victims were 14-year-old girls — the same age range he would come into contact with if he were allowed to watch his son participate in high school activities. Though his rehabilitation efforts are commendable, the Unlawful Entry Statute was specifically designed to prohibit convicted sex offenders such as Kirby from accessing potential victims at school, Creason said.
The full oral arguments can be viewed here.