FILED
Apr 27 2018, 1:03 pm
CLERK
Indiana Supreme Court
Court of Appeals
IN THE and Tax Court
Indiana Supreme Court
Supreme Court Case No. 18S‐CR‐79
Douglas Kirby
Appellant (Petitioner)
–v–
State of Indiana
Appellee (Respondent)
Argued: March 22, 2018 | Decided: April 27, 2018
Appeal from the Howard Superior Court 4, No. 34D04‐1001‐FD‐11
The Honorable George A. Hopkins, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 34A02‐1609‐CR‐2060
Opinion by Chief Justice Rush
Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.
Post‐conviction relief is both limited and exclusive. It is available only
within the strictures of the post‐conviction rules, and when the rules allow
post‐conviction proceedings, relief generally cannot be pursued any other
way.
Here, the petitioner tried to use post‐conviction proceedings to
challenge a statute barring him, as a serious sex offender, from school
property. But that restriction is a collateral consequence of his
conviction—and the post‐conviction rules generally allow challenges only
to a conviction or sentence. While we thus affirm the denial of post‐
conviction relief, we note that the post‐conviction rules do not bar the
petitioner from pursuing his claim in a declaratory‐judgment action.
Facts and Procedural History
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 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
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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).
Standard of Review
Our issue is whether Kirby may challenge his school‐entry restriction in
a post‐conviction proceeding. As with any interpretation of our rules, the
standard of review is de novo. State v. Holtsclaw, 977 N.E.2d 348, 349 (Ind.
2012).1
Discussion and Decision
Post‐conviction relief is a narrow remedy that “must be based on
grounds enumerated in the post‐conviction rules.” Hampton v. State, 961
N.E.2d 480, 491 (Ind. 2012). One of the post‐conviction rules’ central
limitations is that relief is generally available only from a conviction or
1 In the post‐conviction court, Kirby raised his ex post facto challenge to aid his argument that
his plea was unknowing. But on appeal, he asks only for an injunction preventing
enforcement of the school‐entry restriction. The State, for its part, never addressed the ex post
facto issue to the post‐conviction court. Nor did it raise its post‐conviction rule argument until
its rehearing petition to the Court of Appeals. We look past these potential waivers to address
the transfer arguments about the scope of our post‐conviction rules. See Pierce v. State, 29
N.E.3d 1258, 1267 (Ind. 2015) (“[W]henever possible, we prefer to resolve cases on the merits
instead of on procedural grounds like waiver.”).
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sentence. See Ind. Post‐Conviction Rule 1(1); Kling v. State, 837 N.E.2d 502,
504 (Ind. 2005). That is the sticking point here.
The State argues that Kirby’s ex post facto claim addresses only a
collateral consequence, not the validity of his conviction or the terms of
his sentence as Post‐Conviction Rule 1(1) requires. Kirby responds that the
statutory school‐entry restriction altered his sentence by barring him from
schools that he had been allowed to visit even while he was on probation.
We agree with the State. A criminal sentence is the punishment ordered
by the trial court after conviction—nothing more. See Black’s Law
Dictionary 1569 (10th ed. 2014) (defining “sentence” as “[t]he judgment
that a court formally pronounces after finding a criminal defendant
guilty”). Indeed, “[s]entencing lies within the discretion of the trial court.”
Price v. State, 725 N.E.2d 82, 85 (Ind. 2000).
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 (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.
Nor does the probation condition letting Kirby attend his son’s school
events make the school‐entry restriction part of his sentence. For one
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thing, Kirby’s probation—and thus his sentence—ended more than three
years before the school‐entry statute took effect. See P.L. 235‐2015. But
more fundamentally, as established above, the school‐entry restriction is a
statutory collateral consequence—not part of Kirby’s sentence. In other
words, even if that restriction had conflicted with a probation condition, it
would not bring his ex post facto challenge within the post‐conviction
rules. Cf. Lee v. State, 816 N.E.2d 35, 39 (Ind. 2004) (noting that if one part
of a plea agreement is void for illegality, courts generally enforce the rest).
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. See, e.g., Reed v. State, 856 N.E.2d 1189, 1194–95 (Ind. 2006); Lambert
v. State, 743 N.E.2d 719, 725 (Ind. 2001); Marts v. State, 478 N.E.2d 63, 64
(Ind. 1985); cf. Morlan v. State, 499 N.E.2d 1084, 1086 (Ind. 1986). Since
Kirby’s ex post facto claim challenges a collateral consequence rather than
his conviction or sentence, post‐conviction review is unavailable.
While Kirby cannot raise his ex post facto claim in post‐conviction
proceedings, he may have a vehicle for his claim. The legislature created
declaratory‐judgment actions for the explicit purpose “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status
and other legal relations.” Ind. Code § 34‐14‐1‐12 (2017). Settling his
uncertain legal status in light of the statutory school‐entry restriction is
precisely what Kirby wants to do. And the declaratory‐judgment statutes
are “liberally construed and administered” to achieve that purpose. Id.
Declaratory‐judgment actions are also broadly available. “Any
person . . . whose rights, status, or other legal relations are affected by a
statute” can bring such an action. I.C. § 34‐14‐1‐2. That action will
determine “any question” of a statute’s validity and give “a declaration of
rights, status, or other legal relations thereunder.” Id. Again, this is exactly
what Kirby asks for: a determination of whether the school‐entry
restriction is an invalid ex post facto law as applied to him.
Indeed, Indiana caselaw shows that ex post facto claims like Kirby’s are
often raised through declaratory‐judgment actions. E.g., Lemmon v. Harris,
949 N.E.2d 803, 805 (Ind. 2011); Gardner v. State, 923 N.E.2d 959, 959 (Ind.
Ct. App. 2009), trans. denied. And our Court of Appeals has held that
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declaratory‐judgment actions are appropriate vehicles for ex post facto
claims even when other statutory remedies are available, given the
burdens imposed by sex‐offender registration requirements. Greer v. Buss,
918 N.E.2d 607, 615 (Ind. Ct. App. 2009).
But allowing Kirby to raise his ex post facto claim in a post‐conviction
proceeding would end the established practice of raising such issues in
declaratory‐judgment actions. That’s because, absent an explicit exception,
claims that may be brought in a post‐conviction proceeding must be
brought in a post‐conviction proceeding. P‐C.R. 1(1)(a), (b). The post‐
conviction rules, though, exclude Kirby’s claim, so they do not foreclose a
declaratory‐judgment action.
Conclusion
Indiana’s post‐conviction rules do not let Kirby bring his ex post facto
claim in a post‐conviction proceeding because Kirby is challenging a
collateral consequence instead of his conviction or sentence. We therefore
affirm the post‐conviction court’s denial of relief without reaching the
merits of Kirby’s ex post facto claim.
David, Massa, Slaughter, and Goff, JJ., concur.
ATTORNEY FOR APPE LL AN T
Alan D. Wilson
Kokomo, Indiana
ATTORNEYS FOR APP EL LE E
Curtis T. Hill, Jr.
Attorney General of Indiana
Stephen R. Creason
Michael Gene Worden
Deputy Attorneys General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 18S‐CR‐79 | April 27, 2018 Page 6 of 6
Douglas Kirby v. State of Indiana
Combined Opinion