MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 06 2016, 8:31 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Gregory F. Zoeller
Anthony Churchward, P.C. Attorney General of Indiana
Fort Wayne, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian W. Ellison, September 6, 2016
Appellant-Defendant, Court of Appeals Case No.
92A05-1604-CR-964
v. Appeal from the Whitley Circuit
Court
State of Indiana, The Honorable James R. Heuer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
92C01-1511-FA-86
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 1 of 5
[1] Appellant-Defendant Brian Ellison pled guilty to sexually molesting his two
daughters on multiple occasions between 2007 and 2014. Ellison was
designated as a credit restricted felon by the trial court. The credit restricted
felon statute went into effect in 2008. On appeal, Ellison argues that the trial
court erred in designating him a credit restricted felon because his offenses
against one of the victims may have occurred prior to the effective date of the
statute. Because there is evidence that at least some of the molestations
occurred after the effective date of the statute, we affirm the trial court’s
judgment.
Facts and Procedural History
[2] Between the dates of January 1, 2007 and June 30, 2014, Ellison, on multiple
occasions, sexually molested his daughter, A.E. Between the dates of March 3,
2010 and June 30, 2014, Ellison, on multiple occasions, sexually molested his
daughter, S.S. On February 2, 2016, Ellison pled guilty to two counts of Class
B felony child molesting and two counts of Class C felony child molesting. In
exchange for his guilty plea, Appellee-Plaintiff the State of Indiana dismissed
several other charges of child molesting. The parties also agreed that the trial
court would have the discretion to order his sentences run concurrently or
consecutively and that his initial executed sentence would not exceed forty
years. The trial court sentenced Ellison to an aggregate term of thirty-six years
with thirty to be executed and six suspended to probation. The trial court also
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designated Ellison a credit restricted felon and ordered that he register as a sex
offender upon his release to probation.
Discussion and Decision
[3] On appeal, Ellison claims that the trial court erred by designating him a credit
restricted felon with regards to his offenses committed against A.E.1
Specifically, Ellison argues that those offenses may have occurred prior to the
date when the credit restricted felon statute was enacted. For its part, the State
argues that there was sufficient evidence that at least one incident of
molestation occurred after the effective date of the credit restricted felon statute
and so the trial court did not err in determining Ellison to be a credit restricted
felon.
[4] “Both the United States Constitution and Indiana Constitution prohibit ex post
facto laws.” Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009), trans.
denied.; U.S. CONST. ART. I, § 10; IND. CONST. ART. 1, § 24. “‘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.’” Upton, 904 N.E.2d at 705 (quoting Paul v. State, 888 N.E.2d
818, 825-826 (Ind. Ct. App. 2008)).
1
Credit restricted felons earn less good time credit for each day the person is imprisoned for a crime or while
confined awaiting trial or sentencing. Ind. Code § 35-50-6-3.
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[5] Indiana Code section 35-31.5-2-72, previously section 35-41-1-5.5, defines
“credit restricted felon,” and includes “a person who has been convicted of
child molesting involving sexual intercourse or deviate sexual conduct if the
offender is at least twenty-one years old and the victim is less than twelve years
old.” The credit restricted felon statute became effective on July 1, 2008. “At
the time of sentencing, a court shall determine whether a person is a credit
restricted felon.” Ind. Code § 35-38-1-7.8. This determination must be based
upon “(1) evidence admitted at trial that is relevant to the credit restricted
status; (2) evidence introduced at the sentencing hearing; or (3) a factual basis
provided as part of a guilty plea.” Id.
[6] The sole question here is whether there is sufficient evidence to support the trial
court’s determination that Ellison molested A.E. on or after July 1, 2008, the
effective date of the credit restricted felon statute. A.E. told police that she lived
in two different locations where Ellison molested her: in a mobile home where
the family lived between 2007 and 2012, and a home the family lived in
between 2012 and 2015. A.E. also reported molestations were frequent and
happened when her mother was not home and when Ellison was alone with the
children. Because A.E. reported that at least some of the molestations occurred
at the family’s second home, and because the family did not move into that
home until 2012, there was sufficient evidence for the trial court to determine
that Ellison molested A.E. after the credit restricted felon statute went into
effect.
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[7] In Sharp v. State, Sharp molested his victim every other weekend between
August 1, 2007 and August 31, 2008. 970 N.E.2d 647, 648 (Ind. 2012). The
trial court designated Sharp to be a credit restricted felon. On appeal, Sharp
argued that there was insufficient evidence to support his designation as a credit
restricted felon because there was no specific finding that any of the acts of
molestation occurred after the effective date of the credit restricted felon statute.
The Indiana Supreme Court rejected this argument in the following footnote:
We need not explore the nature of the ex post facto prohibition,
however, because C.S. testified at trial that the defendant
“touched my private area,” Tr. at 76, “[a]bout every other
weekend I was over [at the defendant’s house in the two years
preceding October 6, 2008],” Tr. at 74, 77. This was sufficient
evidence from which a reasonable jury could conclude that the
defendant molested C.S. after July 1, 2008, the effective date of
the statute.
Id. at 648 n. 1. The same logic applies to the instant case and the trial court
properly designated Ellison a credit restricted felon.
[8] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
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