 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
                                                                   FILED
                                                                May 21 2012, 9:18 am
 any court except for the purpose of
 establishing the defense of res judicata,                             CLERK
 collateral estoppel, or the law of the case.                        of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

JOSEPH P. HUNTER                                     GREGORY F. ZOELLER
Muncie, Indiana                                      Attorney General of Indiana

                                                     IAN MCLEAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BUSTER JOEL TOSCHLOG,                                )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 18A02-1110-CR-958
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                          The Honorable Linda Ralu Wolf, Judge
                              Cause No. 18C03-0902-FA-6


                                            May 21, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Buster Joel Toschlog appeals the trial court’s determination that he is a credit-

restricted felon. He argues that the credit-restricted-felon statute, Indiana Code section

35-41-1-5.5, does not apply to Class B felony child molesting, of which he was

convicted. Another panel of this Court recently addressed this very issue, concluding that

the credit-restricted-felon statute indeed applies to Class B felony child molesting. White

v. State, 961 N.E.2d 54 (Ind. Ct. App. 2012), trans. denied. We therefore affirm.

                             Facts and Procedural History

       The facts in this case are not in dispute.     In 2009, Toschlog lived with his

girlfriend and her six-year-old daughter, J.Q. On January 24, 2009, Toschlog held J.Q.

down and had anal intercourse with her. The State charged Toschlog with two counts of

Class A felony child molesting (deviate sexual conduct) and two counts of Class B felony

child molesting (deviate sexual conduct), all of which are governed by Indiana Code

section 35-42-4-3(a). These counts covered the January 24 incident as well as an earlier

incident with J.Q.

       In September 2011, Toschlog and the State entered into a plea agreement in which

Toschlog agreed to plead guilty to Class B felony child molesting as a lesser-included

offense of Class A felony child molesting for the January 24, 2009, incident.           In

exchange, the State agreed to dismiss the remaining charges. The parties agreed that

Toschlog’s sentence would be left to the discretion of the trial court. The trial court

accepted the plea agreement and sentenced Toschlog to sixteen years in the Indiana

Department of Correction. Noting that the offense was committed by a person over the


                                            2
age of twenty-one and the victim was less than twelve years old at the time of the offense,

the court determined that Toschlog was a credit-restricted felon pursuant to Indiana Code

section 35-41-1-5.5(1). Appellant’s App. p. 93-94. The court assigned Toschlog to Class

IV credit time, which means that he receives one day of credit time for every six days

served. See Ind. Code §§ 35-50-6-4(b) (“A person who is a credit restricted felon and

who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially

assigned to Class IV. A credit restricted felon may not be assigned to Class I or Class

II.”), 35-50-6-3(d) (“A person assigned to Class IV 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.”).

       Toschlog now appeals.

                                  Discussion and Decision

       Toschlog contends that the trial court erred in determining that he was a credit-

restricted felon because he was convicted of Class B felony child molesting as opposed to

Class A felony child molesting. He reasons that his age, which elevated the offense to a

Class A felony, was an element specifically bargained out of the offense to which he pled

guilty and, therefore, it cannot be used to establish that he is a credit-restricted felon.

       We start with the statute that defines credit-restricted felon.          It provides, in

pertinent part:

       “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 or deviate sexual conduct
       (IC 35-42-4-3(a)), if:


                                               3
                (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.

Ind. Code § 35-41-1-5.5 (emphasis added).1 Indiana Code section 35-42-4-3(a) governs

both Class A and Class B felony child molesting and provides, in relevant part:

      (a) A person who, with a child under fourteen (14) years of age, performs
      or submits to sexual intercourse or deviate sexual conduct commits child
      molesting, a Class B felony. However, the offense is a Class A felony if:

                (1) it is committed by a person at least twenty-one (21) years of age .
                ...

That is, Class B felony child molesting (sexual intercourse or deviate sexual conduct) is

elevated to a Class A felony when the defendant is at least twenty-one years old.

      This Court recently addressed the very issue before us now in White and

concluded that the statute plainly applies to defendants convicted of Class B felony child

molesting under Section 35-42-4-3(a). In his February 2012 Appellant’s Brief, Toschlog

recognized the White Court’s holding but noted that the opinion was not yet certified.

See Appellant’s Br. p. 7 (“That decision has yet to be certified and thus Mr. Toschlog

submits his brief to preserve his rights under this appeal.”). Although the defendant in

White sought transfer,2 our Supreme Court denied transfer on May 3, 2012.

      Specifically, the White Court found that the statutory language was unambiguous

and a plain reading of it revealed that a credit-restricted felon includes a defendant who

has been convicted of child molesting under Indiana Code section 35-42-4-3(a) if special

circumstances exist. White, 961 N.E.2d at 56. The special circumstances are that the

      1
          Effective July 1, 2012, this statute will be recodified at Indiana Code section 35-31.5-2-72.
      2
          Toschlog’s appellate attorney is the same as the defendant’s appellate attorney in White.
                                                     4
defendant was at least twenty-one years old when he committed the offense and the

victim was less than twelve years old. Id.

       Contrary to Toschlog’s argument on appeal, the credit-restricted-felon statute does

not require that the first special circumstance – the defendant’s age – be alleged and

established as an element of the crime for which the defendant is ultimately convicted.

See id. In other words, Section 35-41-1-5.5(1) does not expressly limit application of the

credit-restricted-felon statute to those convicted of only Class A felony child molesting

based upon the defendant’s age being at least twenty-one. Id. at 56-57. Rather, Section

35-41-1-5.5(1) applies to convictions under Section 35-42-4-3(a), and subsection (a)

governs both Class A and Class B felony child molesting involving sexual intercourse or

deviate sexual conduct. Id. at 57. In addition to a conviction under Section 35-42-4-3(a),

the special circumstances relating to age must be present. Id.

       Here, Toschlog was convicted of child molesting involving deviate sexual conduct

under Section 35-42-4-3(a). Although not establishing Toschlog’s age as part of the

factual basis because it was not an element of Class B felony child molesting, the record

clearly establishes that Toschlog was at least twenty-one years old when he committed

the offense in January 2009 and J.Q. was less than twelve years old at that time. See Tr.

p. 11, 12, 47, 52, 56 (establishing, as part of the factual basis, that J.Q. was six years old

at the time of the offense and noting that Toschlog was twenty-seven years old at the time

of an August 2009 hearing and twenty-nine years old at the time of a September 2011

hearing). Accordingly, the credit-restricted-felon statute plainly applies to this case; it is




                                              5
of no moment that Toschlog pled guilty to Class B felony child molesting as opposed to

Class A felony child molesting.

      Although not delineating it as a separate argument, Toschlog makes a one-

paragraph argument at the end of his brief that the credit-restricted-felon statute is

unconstitutional because it violates the proportionality clause of the Indiana

Constitution.3 Toschlog speculates that a defendant convicted of Class A felony child

molesting under Section 35-42-4-3(a) for molesting someone over twelve years old who

receives Class I credit time could end up serving less time than a credit-restricted-felon

defendant convicted of Class B felony child molesting under Section 35-42-4-3(a) for

molesting someone under the age of twelve. Notably, Toschlog did not make this

constitutional argument in the trial court below and has therefore waived it. See Price v.

State, 911 N.E.2d 716, 719 (Ind. Ct. App. 2009), trans. denied. Even if we did not find

waiver, Toschlog’s argument fails.

      Article 1, Section 16 of the Indiana Constitution provides in part, “All penalties

shall be proportioned to the nature of the offense.” Our Supreme Court has made clear

that Article 1, Section 16 “applies only when a criminal penalty is not graduated and

proportioned to the nature of the offense.” Conner v. State, 626 N.E.2d 803, 806 (Ind.

1993) (quotation omitted). “Finding that a statute is unconstitutional should be reserved

only for penalties so disproportionate to the nature of the offense as to amount to clear

constitutional infirmity sufficient to overcome the presumption of constitutionality




      3
          Toschlog does not make an equal-protection argument.
                                                  6
afforded to legislative decisions about penalties.” State v. Moss-Dwyer, 686 N.E.2d 109,

112 (Ind. 1997) (quotations omitted).

       The credit-restricted-felon statute affects the credit time that a defendant receives

against his sentence. That is, credit time is a statutory reward that is earned toward

release and does not diminish the sentence that a defendant receives. State v. Mullins,

647 N.E.2d 676, 678 (Ind. Ct. App. 1995). It is well settled that a defendant has no

constitutional right to receive credit time. Cottingham v. State, 424 N.E.2d 105, 106 (Ind.

1981). Because this case involves credit time, which is not a penalty, a proportionality

argument cannot be made. See Halbig v. State, 525 N.E.2d 288, 294 (Ind. 1988) (“There

is no right to a suspended sentence. Therefore, no constitutional issue is presented when

a defendant fails to receive consideration of probation regarding a sentence provided by

the legislature.”); Appellee’s Br. p. 9 (“[The credit-restricted-felon statutes] operate to

determine a defendant’s eligibility for parole or probation and do not prescribe a

‘penalty’ for an ‘offense’ susceptible to review under Article 1, Section 16.”).

       Affirmed.

CRONE, J., and BRADFORD, J., concur.




                                             7
