Judges find 2015 law unconstitutional as applied to registered sex offender
Below is another excellent decision, finding conditions of registration punishment and a violation of the Ex Post Facto clause of the Constitution:
A 2015 law meant to prohibit certain sex offenders from entering school property is unconstitutional as it applies to a Howard County man who has already completed his punishment for his 2010 child solicitation conviction, the Indiana Court of Appeals ruled Thursday.
In January 2010, Douglas Kirby was charged with Class C felony child solicitation after he was accused of using a computer to solicit a teenager for sex. Kirby agreed to plead guilty to the less-included offense of Class D felony child solicitation, which the trial court accepted.
As part of his plea agreement, Kirby was sentenced to a term of 18 months, all suspended to probation, and was subject to the special recommended probation conditions for adult sex offenders, including an order for him to register as a sex offender for 10 years. However, Kirby was granted permission to enter school property to attend and observe his son’s school activities.
After completing his probation, Kirby successfully petitioned to have his conviction reduced to a Class A misdemeanor in February 2015. But the following July 1, the Unlawful Entry Statute went into effect, making it a Level 6 felony for individuals convicted of certain crimes, include Kirby’s crime, to enter school property.
After learning of the statute, Kirby filed a petition for post-conviction relief, which was denied after an evidentiary hearing. He then appealed in Douglas Kirby v. State of Indiana, 34A02-1609-CR-2060, arguing the statute, as applied to him, is unconstitutional because it amounts to retroactive punishment in violation of the Ex Post Facto Clause.
The Indiana Court of Appeals agreed Thursday and reversed the denial of Kirby’s PCR petition. In a unanimous opinion, Judge Cale Bradford wrote that under Indiana’s “intent-effects” test used to evaluate constitutional ex post facto claims, each of the seven factors in Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009), weigh in favor of being punitive against Kirby, which means the statute is a violation of the Ex Post Facto Clause as it relates to him.
“Importantly, the record is devoid of any suggestion that Kirby behaved inappropriately at any time while one school property,” Bradford said. “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. To suddenly deny Kirby of the opportunity to attend his son’s activities for no reason other than his prior conviction is excessive.”
Too little Too late is how I would see this. If we are going to have to have separate trials for each registered citizen who for years have all been treated the same for punishments.
NOW that the state is the ONE on trial then they treat the RC as an individual trying to get his rights restored when the state reneged on the conditions he was initially given AND fully complied with. Why not simply stick to the deal they agreed upon when sentenced?
We kept our part of the deal and yet the government (state and federal) have NOT. They are free to add additional punishments whenever they please…really? I don’t remember signing over the title to my body to the state of Florida. I want my title back and I want nothing to do with the state of Florida.
I am sorry but while this is a victory for THIS MAN it is not really for anyone else. Common sense still is not being used. Small victory for this individual BUT until ALL the retroactive Ex Post Facto laws are repealed for ALL registered citizens WE have won nothing.
It’s useful as precedent.
Think of the Shelley case (double jeopardy). Many people have gone back to get relief from that one.
Can this open doors for class action? As one of these decisions come in, is there a mechanism to start a blanket appeal to the ex post facto applications to those affected?
Agreed, FAC. Every victory is a victory no matter how small. This will be a long term fight and any ground we gain helps, not just with precedent, but with swaying public opinion. And in my eyes, public opinion is where the fight will be won.
with enough time and money we could all appeal like this. but its likely not going to happen. Those with enough money probably wouldnt even be on the list.
It is a victory for this man but it doesn’t help me. I was convicted back in March of 1996. I got off probation in April 2005. I actually got off early because I petitioned the court. On my original plea agreement there was nothing listed for me to register. But about a year later I had to. I went to the clerks office about a month ago and looked at my court records and I did not find ANYTHING, ANYTHING that says I have to register. And what can I do about it? ABSOLUTELY nothing. Why? Because I can’t afford a lawyer #1. Also because this whole country as well as this state refuse to get the facts straight about Registered Citizens. Everyone is so brainwashed from all the Ron Books (Politicians) that they believe them and not the professionals. So here I am stuck on a registry that does absolutely nothing for anyone. I did Ten years of counseling, Five years of victim counseling (I was a victim from age 10 to 16), I wasn’t allowed contact with my kids for ten years. I did so much to learn from my mistakes only to get a life of punishment. So if things ever do change for the better all I have to say is I will believe it when I see it.
One thing I find interesting about this story (other than the obvious) is that after probation in Indiana one can get their conviction reduced to a Class A misdemeanor? Wow! In FL, people that are adjudication withheld can have their records expunged except for…yup you guessed it!
And as far as the story goes….baby steps, baby steps….that is how it is done….speaking of that how exactly does one tell which RSO laws, ordinances, etc. were enacted ex post facto their conviction? I mean I know that obviously is a big one comes out one will realize it but it can be a little more complicated than that. Also, for ex post facto issues is it from date of arrest or date of conviction? I could see where sometimes it matters. One thing I find interesting about this story (other than the obvious) is that after probation in Indiana one can get their conviction reduced to a Class A misdemeanor? Wow! In FL, people that are adjudication withheld can have their records expunged except for…yup you guessed it!
A federal judge just found the registry in Colorado unconstitutional and punitive. The whole entire thing. Lol.
Our comments all sound reasonable; however, we have to find a way to get the public to echo those same reasonable comments or else we have to force it in the courts.
I have been so glad that FAC has taken the initiative to get the ball rolling by starting a suit on the ex post facto issue. The outcome means a lot to my wife and me because we are in our 80’s and looking toward assisted living. However, on checking, the facility in our area that we have visited and can afford is within 2,500 feet of a park and the police now tell us that I can’t move there.
Is there anything more we can do to get the ex post facto lawsuit moving?
APM – I assure you things are moving in the background. There is LOTS of moving. Remember, the filing of the lawsuit is not the start of the process, it’s more like 1/2 of the way through. It takes a lot more time to research, draft, redraft, get expert declarations, etc. than it does to file the document in the courthouse. There are also a couple of things (time-wise) that we’re waiting on (like whether the SCOTUS picks up the Snyder case), because if some issues will already be decided by a superior court, the same issues would just be a waste of time and money to try at the trial court level – because whatever decision we got would be instantly useless because of a SCOTUS decision. Good news is there are a lot of issues to pick from.
Thanks for the update. Encouraging.
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ummm,, what does this have to do with this forum???
are you suggestion we put spells on lawmakers??