Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL C. WIENEKE GREGORY F. ZOELLER
Greencastle, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 26 2012, 9:19 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
JONATHAN PAUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 67A01-1107-CR-298
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Matthew L. Headley, Judge
Cause No. 67C01-1008-FA-159
January 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
In 2010, Jonathan Paugh was charged with multiple counts of child molesting and
other related offenses based on acts he committed in 2003. In 2011, he pled guilty via a plea
agreement. At sentencing, the trial court sua sponte found Paugh to be a credit restricted
felon (“CRF”) pursuant to an Indiana law enacted in July 2008.
Paugh now appeals, challenging the trial court‟s retroactive application of the CRF
statute to his 2003 offenses. Because the CRF statute does not apply to offenses committed
before July 1, 2008, we find that the trial court violated Paugh‟s constitutional protection
against ex post facto laws and therefore reverse his CRF designation.
Facts and Procedural History
On August 31, 2010, the State charged Paugh with eight counts of child molesting and
related offenses. The charges involved acts that Paugh committed against his two sons in
2003. On February 24, 2011, Paugh pled guilty to seven counts via plea agreement.1 The
plea agreement provided for a sentence of thirty-five years executed and five years
suspended. At sentencing, the trial court sua sponte designated Paugh a CRF. On May 4,
2011, Paugh filed a motion to correct error, challenging the CRF designation. On June 22,
2011, the trial court denied his motion. Paugh now appeals.
Discussion and Decision
Paugh asserts, and the State concedes, that the trial court violated his constitutional
1
The charges to which Paugh pled guilty include: two counts of class A felony child molesting; one
count of class B felony incest; two counts of class C felony vicarious sexual gratification; one count of class D
felony dissemination of matter harmful to minors; and one count of class A misdemeanor contributing to the
delinquency of a minor.
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protection against ex post facto laws by finding him to be a CRF. Both the United States
Constitution and the Indiana Constitution prohibit ex post facto laws. U.S. CONST. art. I, §
10; IND. CONST. art. 1, § 24. Our analysis is the same under both. Upton v. State, 904
N.E.2d 700, 705 (Ind. Ct. App. 2009), trans. denied. “To fall within the ex post facto
prohibition, a law must be retrospective—that is, „it must apply to events occurring before its
enactment‟—and it „must disadvantage the offender affected by it.‟” Id. (citation and
quotation marks omitted).
In 2008, the Indiana General Assembly enacted a statute that limited the amount of
good time credit that could be earned by defendants convicted of certain crimes. The statute
provides, in pertinent part, that a person age twenty-one or over who is convicted of child
molesting involving sexual intercourse or deviate sexual conduct against a victim under the
age of twelve is classified as a CRF. Ind. Code § 35-41-1-5.5(1). According to Indiana Code
Section 35-50-6-3(d), a CRF “earns one (1) day of credit time for every six (6) days the
person is imprisoned for a crime or confined awaiting trial or sentencing.” In contrast, the
statute in effect in 2003, when Paugh committed his offenses, afforded him one day of good
time credit for each day served. Ind. Code § 35-50-6-3(a) (1977). Thus, application of the
CRF statute would disadvantage Paugh‟s good time credit by limiting his maximum earned
credit from one day for every one day served to one day for every six days served. See
Upton, 904 N.E.2d at 706 (finding ex post facto violation in trial court‟s application of CRF
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statute to defendant whose offenses pre-dated statute‟s July 1, 2008 effective date).2 Based
on the foregoing, we conclude that the trial court violated Paugh‟s constitutional protection
against ex post facto laws in designating him a CRF. Accordingly, we reverse the trial
court‟s CRF designation.
Reversed.
MAY, J., and BROWN, J., concur.
2
Paugh also contends that the trial court improperly relied on dates listed in the probable cause
affidavit in designating him a CRF and that, therefore, the evidence is insufficient to classify him as a CRF.
However, because we hold that the trial court violated Paugh‟s constitutional protection against ex post facto
laws by classifying him as a CRF, we need not address his sufficiency argument. Upton, 904 N.E.2d at 705
n.3. More specifically, we decline his invitation to invoke the “public importance” exception to the mootness
doctrine.
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