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                    Dec 30 2014, 9:03 am

establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                         GREGORY F. ZOELLER
Wieneke Law Office, LLC                       Attorney General of Indiana
Plainfield, Indiana
                                              ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TIMOTHY JOHNSON,                              )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )    No. 33A01-1406-CR-251
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE HENRY CIRCUIT COURT
                        The Honorable Mary G. Willis, Judge
                           Cause No. 33C01-1205-FA-17



                                   December 30, 2014


            MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                 Case Summary and Issue

       In 2014, a jury found Timothy Johnson guilty of two counts of child molesting as

Class A felonies and two counts of child molesting as Class C felonies. The trial court

entered judgment of conviction on the two Class A felony counts and sentenced Johnson

to serve thirty-five years on each count, to be served consecutively. In addition, the court

found that Johnson was a credit restricted felon. Johnson now appeals, arguing that

applying the credit restricted felon classification to him violates constitutional

prohibitions against ex post facto laws.         The State concedes, and we agree, that

classifying Johnson as a credit restricted felon is an ex post facto violation, and we

reverse and remand to the trial court to amend its sentencing order.

                               Facts and Procedural History

       M.T. was born May 6, 1994. In 1998, her mother married Johnson and they all

lived together. In 2012, it came to light that Johnson had molested M.T. for several years

beginning when she was six years old. The State charged Johnson in five counts: child

molesting as a Class A felony and child molesting as a Class C felony for conduct

occurring between December 1, 2000 and May 5, 2004; child molesting as a Class A

felony and child molesting as a Class C felony for conduct occurring between May 6,

2004 and May 5, 2008; and sexual misconduct as a Class C felony for conduct occurring

between May 6, 2008 and May 5, 2010.

       A jury found Johnson guilty of all four child molesting charges but not guilty of

sexual misconduct. At sentencing, the trial court entered judgment of conviction against

Johnson for only the Class A felonies, found they were crimes of violence and that

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consecutive sentences were appropriate, and stated, “[t]he Court does show that

[Johnson] is a restricted credit class and I appreciate the date problem. He is a restricted

credit class as defined by law and the Court recognizes that a portion of the sentence

would fall within that.” Transcript at 139. Johnson was ordered to serve an aggregate

sentence of seventy years.

                                 Discussion and Decision

       Both the federal and state constitutions prohibit ex post facto laws. U.S. Const.

art. I, § 10; Ind. Const. art. 1, § 24. These clauses generally prohibit enactment of a law

“that imposes a punishment for an act that was not punishable when it was committed or

imposes additional punishment to that then prescribed.” Patrick v. Butts, 12 N.E.3d 270,

271 (Ind. Ct. App. 2014). To fall within either 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 v. State, 904 N.E.2d 700, 705 (Ind.

Ct. App. 2009) (quotation marks and citation omitted), trans. denied.

       The credit restricted felon statute took effect on July 1, 2008, and applied “only to

persons convicted after June 30, 2008.” Id. at 704 (quoting Pub. L. 80-2008, § 6). A

“credit restricted felon” is defined by the statute as a person who has been convicted of,

inter alia, child molesting involving sexual intercourse or deviate sexual conduct if the

offender is at least twenty-one years of age and the victim is less than twelve years of

age. Ind. Code § 35-31.5-2-72 (2014). A person who is a credit restricted felon is

initially assigned to a lower credit class and may not be assigned to certain higher classes,

thus earning less credit time during imprisonment. See Ind. Code ch. 35-50-6. By its

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express terms, the statute applies to Johnson because he was convicted of his offenses

after its enactment. However, this court has held that retroactive application of the credit

restricted felon statute to a defendant who committed an offense before the effective date

constitutes an ex post facto violation. Gaby v. State, 949 N.E.2d 870, 883 (Ind. Ct. App.

2011) (credit restricted felon classification improper upon conviction in 2010 for child

molesting offenses occurring from 1997 to 2002); Upton, 904 N.E.2d at 706 (credit

restricted felon classification improper when defendant was convicted after July 1, 2008,

but committed his offenses no later than December of 2007).

       Based upon this precedent, the State concedes and we conclude that Johnson’s

argument is correct: application of the credit restricted felon statute to Johnson is an

unconstitutional ex post facto violation because Johnson committed his offenses prior to

July 1, 2008.

                                         Conclusion

       The trial court erred in determining that Johnson qualified as a credit restricted

felon. Accordingly, we reverse and remand to the trial court to amend its sentencing

order to remove the credit restricted felon classification.

       Reversed and remanded.

BAILEY, J., and BROWN, J., concur.




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