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

IN THE

COURT OF APPEALS OF INDIANA

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
2

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. 
3

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 
4

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.