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                MEMORANDUM DECISION - NOT FOR PUBLICATION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.

                                                       2
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




                                              3
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.

                                                      4
