A registered sex offender previously able to attend his son’s school activities per a trial court-granted request was denied that exception Monday when the Indiana Court of Appeals determined an amended statute barred him from entering school property.

Upon pleading guilty to child solicitation in 2010, Douglas Kirby received a 10-year sex-offender registration requirement and an 18-month sentence, suspended to probation. Although his probation conditions forbade Kirby from entering schools, he received an exception to attend his son’s school activities.

Three years after completing probation, however, 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. At that time, Kirby was still attending his son’s school events but ultimately had to stop, as child solicitation was a qualifying offense under the statute. A post conviction court denied Kirby’s request for relief when he argued that he did not “knowingly” plead guilty because he didn’t know at that time that he would be eventually barred from entering school property. He further asserted that the new statute was an unconstitutional ex post facto law because it added punishment to an already-committed crime.

When Kirby filed a declaratory judgment action, Howard Superior Court found the statute unconstitutional as applied to his circumstances after noting that he had been previously able to attend his son’s school functions and sporting events before the statute’s amendment.

But an Indiana Court of Appeals reversed that judgment when it found the statue was not unconstitutional under the “intent-effects” test in State of Indiana v. Douglas Kirby, 18A-PL-2334.

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