On April 27, 2018, the Supreme Court of Indiana handed down its decision in Douglas Kirby v. State. The Chief Justice, writing for a unanimous Court, held that a criminal defendant cannot challenge on post-conviction the collateral consequences that stem from a conviction.
Kirby pleaded guilty in 2010 to child solicitation. Consequently, he was required to register as a sex offender for a period of 10 years. During that time, Kirby was permitted to attend his son’s activities at school. But in 2015, the Indiana General Assembly added the “serious sex offender” (SSO) designation and prohibited an SSO from entering school property. See Ind. Code § 35-42-4-14. Thereafter, Kirby could no longer attend his son’s school activities.
Kirby challenged through a petition for post-conviction relief the application of the new law to him. At the trial court level, Kirby’s challenge involved a claim that his guilty plea was not knowing and voluntary because he did not know at the time he entered into the plea that in the future Indiana would prohibit him from entering school property.
The post-conviction court denied Kirby relief, and Kirby appealed to the Court of Appeals of Indiana. But on appeal, Kirby changed his argument somewhat by focusing not on the involuntariness of his guilty plea but on the unconstitutionality of the new law as applied retroactively to him. The Court of Appeals agreed with Kirby and reversed the denial of post-conviction relief.
The State eventually sought transfer, and the Supreme Court of Indiana granted the State’s request. The Supreme Court explained that the post-conviction process is limited by the relief provided in the Indiana Rules of Post-Conviction Remedies. The Rules provide that a criminal defendant may only use the post-conviction process to challenge a conviction and/or a sentence. The Rules do not allow for defendants to challenge collateral consequences of their convictions.
Here, the SSO prohibition against entering school property was a collateral consequence that stemmed from Kirby’s conviction and, therefore, could not be challenged through the post-conviction process. Rather, relief could be sought through a declaratory judgment action.
The Court did not address the merits of Kirby’s claim itself. My guess is that given the Court’s previous holdings in cases involving newly created sex offender designations being applied retroactively, Kirby has a good chance of obtaining relief from application of the new law. But the avenue for obtaining such relief is not through the post-conviction process.