                                                                                    FILED
                                                                               Feb 28 2018, 9:31 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Christopher Sturgeon                                       Curtis T. Hill, Jr.
      Clark County Public Defender’s Office                      Attorney General of Indiana
      Jeffersonville, Indiana                                    Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Christopher D. McCoy,                                      February 28, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 10A05-1703-CR-681
              v.                                                 Appeal from the Clark Circuit
                                                                 Court 1
      State of Indiana,                                          The Honorable Andrew Adams,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 10C01-1505-FA-005



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Indiana’s child-molesting statute, Indiana Code section 35-42-4-3, establishes

      two categories of molestation. Subsection (a) addresses molestation by sexual

      intercourse or “other sexual conduct” (formerly referred to as “deviate sexual

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      conduct”), which is generally a Level 3 felony. Subsection (b) addresses

      molestation by “fondling or touching,” which is generally a Level 4 felony.


[2]   A related statute says that a person who has been “convicted of . . . [c]hild

      molesting involving sexual intercourse, deviate sexual conduct . . . or other

      sexual conduct” could, under certain circumstances, be designated a “credit

      restricted felon.” Ind. Code § 35-31.5-2-72. Such a designation significantly

      decreases the amount of good-time credit the person earns.


[3]   We must decide whether a person who pleads guilty to charges of molestation

      by “fondling or touching”—but in doing so does not dispute evidence that his

      molestation included deviate/other sexual conduct (in this case, oral sex and

      vaginal penetration with an object)—has been “convicted” of child molesting

      involving deviate/other sexual conduct for purposes of the credit-restricted-

      felon statute. We hold that he has not.



                             Facts and Procedural History
[4]   In December 2014, the mother of eleven-year-old S.M. reported to police that

      Christopher McCoy, S.M.’s thirty-year-old adoptive father, had been molesting

      S.M. Five months later, the State charged Christopher McCoy with four counts

      of child molesting under Indiana Code section 35-42-4-3. The State alleged that

      the molestation occurred both before and after July 1, 2014, when Indiana

      switched from felony “classes” to felony “levels.” In Count I, the State charged

      McCoy with child molesting as a Class A felony as follows:


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        Between May 2, 2013 and June 30, 2014, in Clark County, State
        of Indiana, CHRISTOPHER D. MCCOY, a person at least 21
        years of age, performed or submitted to sexual intercourse with
        S.M., a child under fourteen (14) years of age.


Appellant’s App. Vol. II p. 16. In Count II, the State charged McCoy with

child molesting as a Class C felony as follows:


        Between May 2, 2013 and June 30, 2014, in Clark County, State
        of Indiana, CHRISTOPHER D. MCCOY, with S.M., a child
        under fourteen (14) years of age, performed or submitted to any
        fondling or touching of either the child or the older person, with
        intent to arouse or to satisfy the sexual desires of either the child
        or the older person, to-wit: touching and rubbing S.M.’s vagina
        and/or having S.M. rub his penis.


Id. In Count III, the State charged McCoy with child molesting as a Level 1

felony as follows:


        Between July 1, 2014 and December 27, 2014, in Clark County,
        State of Indiana, CHRISTOPHER D. MCCOY, a person at least
        21 years of age, performed or submitted to sexual intercourse
        with S.M., a child under fourteen (14) years of age.


Id. And in Count IV, the State charged McCoy with child molesting as a Level

4 felony as follows:


        Between July 1, 2014 and December 27, 2014, in Clark County,
        State of Indiana, CHRISTOPHER D. MCCOY, with S.M., a
        child under fourteen (14) years of age, performed or submitted to
        any fondling or touching of either the child or the older person,
        with intent to arouse or to satisfy the sexual desires of either the


Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018     Page 3 of 14
              child or the older person, to-wit: touching and rubbing S.M.’s
              vagina and/or having S.M. rub his penis.


      Id.


[5]   In January 2017, the parties reached a plea agreement under which the State

      would dismiss the two most serious charges (Counts I and III) and McCoy

      would plead guilty on the two lesser charges (Counts II and IV), with

      sentencing left to the trial court’s discretion. At the guilty-plea hearing, when

      the court asked for a factual basis, McCoy’s attorney recited the allegations in

      Counts II and IV, and McCoy admitted that they were true. The court then

      asked the prosecutor if she had anything to add, and she moved to “admit the

      Probable Cause Affidavit into the factual basis.” Guilty Plea Tr. p. 13.

      McCoy’s attorney said he had no objection, and the court granted the motion.

      Among other things, the probable-cause affidavit included a statement by S.M.

      that McCoy had penetrated her vagina with an object she described as “blue

      rubber with several connected circles.” Appellant’s App. Vol. II p. 21.


[6]   At the sentencing hearing, S.M.’s mother testified that McCoy had also

      engaged in oral sex with S.M. McCoy did not dispute that evidence. The trial

      court identified four aggravating factors: (1) the harm, injury, loss, or damage

      suffered by S.M. and her mother was significant and greater than the elements

      necessary to prove the commission of the offenses, given that they “developed

      mental health issues” following the offenses; (2) S.M. was less than twelve years

      old at the time of the offenses; (3) McCoy committed a crime of violence and

      knowingly committed the offense in the presence or within hearing of
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      individuals who were less than eighteen (S.M.’s younger siblings); and (4)

      McCoy was in a position of care, custody, or control with S.M. Sent. Tr. pp.

      31-32. Regarding mitigating factors, the court said: “The Court is going to note

      that the mitigation argued by the defense of no criminal history, that the Pre-

      Sentence Investigative Report, likely to respond to probation and not likely to

      commit another criminal offense is argued.” Id. at 32.


[7]   The trial court found that “the aggravators outweigh the mitigators” and said

      that it was imposing the maximum sentence of eight years on Count II and the

      maximum sentence of twelve years on Count IV, “leaving a total sentence of

      twenty years.” Id. In its written judgment and the abstract of judgment,

      however, the court indicated that the two sentences would run concurrently,

      which would result in a total of twelve years to serve. Appellant’s App. Vol. II

      pp. 134-39, 151-53. The court also designated McCoy a “credit restricted

      felon,” meaning that he would earn one day of good-time credit for every six

      days he is imprisoned, rather than one day for every day or three days served,

      which is what most prisoners earn. See Ind. Code §§ 35-50-6-3, -3.1, -4.


[8]   McCoy now appeals.



                                  Discussion and Decision
[9]   McCoy appeals his sentence, arguing that it is inappropriate and challenging

      the trial court’s finding of aggravators and mitigators. He also contends that the

      trial court erred by designating him a credit-restricted felon.


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                                                I. Sentencing
[10]   McCoy first asserts that the trial court sentenced him to “a total of twenty (20)

       years,” Appellant’s Br. p. 7, and that twenty years is an inappropriate sentence

       that we should revise pursuant to Indiana Appellate Rule 7(B). We do not

       reach this argument because we cannot say with confidence that the trial court

       actually intended to impose a sentence of twenty years. It is true that, at the

       sentencing hearing, the trial court said it was sentencing McCoy to eight years

       on Count II and twelve years on Count IV, “leaving a total sentence of twenty

       years,” an indication that the sentences are to run consecutively. In its written

       sentencing documents, though, the court indicated that the two sentences

       would run concurrently, which would leave just twelve years to serve. In light

       of this conflict, we remand this matter to the trial court for clarification of its

       sentencing decision, including whether the sentences will run consecutively or

       concurrently, and we do not address McCoy’s claim that a twenty-year

       sentence would be inappropriate.


[11]   We will, however, address McCoy’s challenge to the trial court’s finding of

       aggravators and mitigators, since our resolution could impact the proceedings

       on remand. Our trial courts enjoy broad discretion in identifying aggravating

       and mitigating factors, and we will reverse only for an abuse of that discretion.

       Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013).


[12]   McCoy first asserts that there is no evidence supporting the trial court’s finding

       that he committed his offenses in the presence or within hearing of S.M.’s


       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018   Page 6 of 14
       younger siblings. The State does not argue otherwise, so we agree with McCoy

       that the trial court abused its discretion by finding this aggravator.


[13]   Second, McCoy contends that the trial court should not have relied on the fact

       that S.M. was under twelve as an aggravating circumstance, since her age at the

       time of the offenses was an element of the charges against McCoy (“child under

       fourteen (14) years of age”). Again, we must agree. While the victim being

       under twelve can be an aggravator, see Ind. Code § 35-38-1-7.1(a)(3), our

       Supreme Court has made clear that “[w]hen the age of a victim constitutes a

       material element of the crime,” the trial court cannot treat it as an aggravating

       circumstance unless it sets forth “particularized circumstances” justifying such

       treatment, McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001); see also Reyes v.

       State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009) (upholding use of

       molestation victim’s age as aggravator where trial court addressed relevance of

       age); Sullivan v. State, 836 N.E.2d 1031, 1035 (Ind. Ct. App. 2005) (same).

       Here, the trial court did not set forth any such particularized circumstances, so

       we are constrained to conclude that the under-twelve aggravator is improper.


[14]   McCoy also asserts that the trial court should have found his guilty plea to be a

       mitigating factor. He cites Cotto v. State, where our Supreme Court held that

       while a guilty plea “is not necessarily a significant mitigating factor,” it is error

       for a trial court to fail to identify a plea as a mitigator “at all.” 829 N.E.2d 520,

       525-26 (Ind. 2005). Two years later, however, the Court held that an allegation

       that the trial court abused its discretion by failing to identify a guilty plea as a

       mitigator “requires the defendant to establish that the mitigating evidence is not

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       only supported by the record but also that the mitigating evidence is

       significant.” Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007) (emphasis

       added). “[A] guilty plea may not be significantly mitigating when it does not

       demonstrate the defendant’s acceptance of responsibility or when the defendant

       receives a substantial benefit in return for the plea.” Id. at 221 (citation

       omitted). Here, to the extent that McCoy accepted responsibility, he didn’t do

       so until more than eighteen months after he was charged. In addition, he does

       not dispute that he received a substantial benefit as a result of his plea in that

       the State dismissed the two most serious charges against him. Therefore, we

       cannot say that the trial court abused its discretion by not treating McCoy’s

       guilty plea as a mitigator.


[15]   We do ask that, on remand, the trial court clarify its conclusions regarding

       mitigating circumstances. At the sentencing hearing, the court stated: “The

       Court is going to note that the mitigation argued by the defense of no criminal

       history, that the Pre-Sentence Investigative Report, likely to respond to

       probation and not likely to commit another criminal offense is argued.” Sent.

       Tr. p. 32 (emphases added). From this language, we cannot tell if the trial court

       actually found the mitigators listed or was instead simply acknowledging the

       fact that the defense argued those mitigators.


                                    II. Credit Restricted Felon
[16]   In addition to challenging his sentence, McCoy argues that the trial court erred

       by designating him a credit-restricted felon. His argument requires us to


       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018    Page 8 of 14
       consider, for the first time, the interplay between two statutes: Indiana Code

       sections 35-31.5-2-72, which defines “credit restricted felon,” and 35-38-1-7.8,

       which sets forth the procedure for determining whether a particular defendant

       meets that definition. Statutory interpretation is an issue of law that we review

       de novo. KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017).


[17]   Section 35-31.5-2-72 defines “credit restricted felon” as a person who has been

       convicted of one or more particularly serious sex-related crimes:


               “Credit restricted felon” means a person who has been convicted
               of at least one (1) of the following offenses:


               (1) Child molesting involving sexual intercourse, deviate sexual
               conduct (IC 35-42-4-3(a), before its amendment on July 1, 2014)
               for a crime committed before July 1, 2014, or other sexual
               conduct (as defined in IC 35-31.5-2-221.5) for a crime committed
               after June 30, 2014, if:


                        (A) the offense is committed by a person at least twenty-
                        one (21) years of age; and


                        (B) the victim is less than twelve (12) years of age.


               (2) Child molesting (IC 35-42-4-3) resulting in serious bodily
               injury or death.


               (3) Murder (IC 35-42-1-1), if:


                        (A) the person killed the victim while committing or
                        attempting to commit child molesting (IC 35-42-4-3);


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                        (B) the victim was the victim of a sex crime under IC 35-
                        42-4 for which the person was convicted; or


                        (C) the victim of the murder was listed by the state or
                        known by the person to be a witness against the person in
                        a prosecution for a sex crime under IC 35-42-4 and the
                        person committed the murder with the intent to prevent
                        the victim from testifying.


       Because it is undisputed that McCoy has not been convicted of an offense under

       subsection (2) (child molesting resulting in serious bodily injury or death) or

       subsection (3) (murder), the issue is whether he has been convicted of an offense

       under subsection (1). The State argues that he has; McCoy argues that he has

       not. We agree with McCoy.


[18]   Again, a person can be a credit-restricted felon under subsection (1) only if he or

       she has been “convicted” of “[c]hild molesting involving sexual intercourse,

       deviate sexual conduct (IC 35-42-4-3(a), before its amendment on July 1, 2014)

       for a crime committed before July 1, 2014, or other sexual conduct (as defined

       in IC 35-31.5-2-221.5) for a crime committed after June 30, 2014[.]” This

       language plainly corresponds with subsection (a) of the child-molesting statute,

       Indiana Code section 35-42-4-3, which addresses molestation by “sexual

       intercourse or other sexual conduct” (before July 1, 2014, “other sexual

       conduct” was referred to as “deviate sexual conduct”). As such, subsection (1)

       of the credit-restricted-felon statute can apply only if the defendant has been

       convicted of an offense under subsection (a) of the child-molesting statute.

       McCoy, however, pled guilty only to, and was therefore “convicted” only of,

       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018   Page 10 of 14
       offenses under subsection (b) of the child-molesting statute, which addresses

       molestation by “fondling or touching.” See I.C. § 35-42-4-3(b); Appellant’s

       App. Vol II p. 16 (charging information).


[19]   The State contends that subsection (1) of the credit-restricted-felon statute

       should be read to apply to “fondling or touching” convictions under subsection

       (b) of the child-molesting statute in cases where there is evidence that the

       defendant “went beyond fondling,” Appellee’s Br. p. 20, and engaged in

       deviate/other sexual conduct, which is defined as “an act involving: (1) a sex

       organ of one (1) person and the mouth or anus of another person; or (2) the

       penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-

       31.5-2-221.5 (formerly Ind. Code § 35-31.5-2-94). Here, evidence was presented

       at the guilty-plea hearing and the sentencing hearing that McCoy’s molestation

       of S.M. included oral sex and penetration of S.M.’s vagina by an object.


[20]   In support of its position, the State relies on Section 35-38-1-7.8, which

       provides:


               (a) At the time of sentencing, a court shall determine whether a
               person is a credit restricted felon (as defined in IC 35-31.5-2-72).


               (b) A determination under subsection (a) 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


       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018      Page 11 of 14
                        (3) a factual basis provided as part of a guilty plea.


               (c) Upon determining that a defendant is a credit restricted felon,
               a court shall advise the defendant of the consequences of this
               determination.


       The State asserts that the fact that the trial court is allowed to consider evidence

       from trial and sentencing or the guilty-plea factual basis makes “clear that it is

       not just the elements of conviction itself that matters” but also “the facts and

       circumstances surrounding a conviction for child molesting that involves sexual

       intercourse, deviate sexual conduct, or other sexual conduct.” Appellee’s Br. p.

       21. In other words, the State contends that the trial court was entitled to find

       that McCoy has been “convicted” of child molesting “involving” deviate sexual

       conduct or other sexual conduct—even though he pled guilty only to “fondling

       or touching”—in light of the evidence of oral sex and penetration by an object.

       We disagree. The fact that McCoy engaged in deviate/other sexual conduct

       does not mean that he was convicted of such conduct, which is what the credit-

       restricted-felon statute requires. See I.C. § 35-31.5-2-72. McCoy was convicted

       only of “fondling or touching” under subsection (b) of the child-molesting

       statute.


[21]   So what is the purpose of Section 35-38-1-7.8(b) as it relates to subsection (1) of

       the credit-restricted-felon statute? We believe that the former provision is

       directed at what we have called the “special circumstances” that must be found

       under the latter provision, in addition to the qualifying conviction under

       subsection (a) of the child-molesting statute. See White v. State, 961 N.E.2d 54,

       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018   Page 12 of 14
       56 (Ind. Ct. App. 2012), trans. denied. Specifically, Section 35-31.5-2-72(1)

       provides that a person convicted under subsection (a) of the child-molesting

       statute is a credit-restricted felon only “if: (A) the offense is committed by a

       person at least twenty-one (21) years of age; and (B) the victim is less than

       twelve (12) years of age.” (Emphasis added). It is in determining the ages of

       the parties that trial courts will often have to examine the record and make

       factual findings.1 But before addressing the required special circumstances, the

       court must first ensure that the defendant has a conviction under subsection (a)

       of the child-molesting statute, which is simply a matter of knowing the count or

       counts on which a judgment of conviction was entered and what the defendant

       was charged with in each such count.


[22]   Because McCoy has not been convicted of an offense under subsection (a) of

       the child-molesting statute, Section 35-31.5-2-72(1) cannot apply to him, and

       the trial court erred by designating him a credit-restricted felon. Therefore, on

       remand, the trial court must remove that designation and notify the Department

       of Correction accordingly.


[23]   Reversed in part and remanded.




       1
         The offense being “committed by a person at least twenty-one (21) years of age” is a fact that will often be
       included in the charge and conviction, since it is a fact that raises a conviction under subsection (a) of the
       child-molesting statute from a Level 3 felony to a Level 1 felony. See I.C. § 35-42-4-3(a)(1). The victim being
       “less than twelve (12) years of age,” however, is not an aggravating factor under the child-molesting statute
       and generally will not be included in the charge and conviction, so the trial court will typically have to look
       to the broader record to make that determination. See Pierce v. State, 29 N.E.3d 1258, 1270-71 (Ind. 2015)
       (affirming trial court’s determination that child-molesting victim was less than twelve at time of offense).

       Court of Appeals of Indiana | Opinion 10A05-1703-CR-681 | February 28, 2018                      Page 13 of 14
May, J., and Altice, J., concur.




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