Bradford, J.
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.
On July 1, 2015, the Unlawful Entry Statute (“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.
Kirby filed an amended petition for post-conviction relief (“PCR”) on June 20, 2016. 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 …; (2) violates his due process interest in the care, custody, and control of his son; and (3) is unconstitutionally vague. …
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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)). …
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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.” … 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 property. Given these facts, we are persuaded that this factor clearly favors treating the effects of the Statute as punitive as applied to Kirby.
“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) … 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. …
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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). … In this sense, the Statute is a direct deterrent to sex offenders. …
“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). …
… 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. …
Finally, we determine whether the unlawful entry statute “‘appears excessive in relation to the alternative purpose assigned.’” Wallace, 905 N.E.2d at 383 …
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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. …
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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.
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.