Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 1 of 5

MEMORANDUM DECISION

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

Anthony S. Churchward

Anthony Churchward, P.C.

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana 

Chandra K. Hein

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Brian W. Ellison,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 6, 2016

Court of Appeals Case No.

92A05-1604-CR-964

Appeal from the Whitley Circuit 

Court

The Honorable James R. Heuer, 

Judge

Trial Court Cause No.

92C01-1511-FA-86

Bradford, Judge.

Case Summary 
Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 2 of 5

[1] Appellant-Defendant Brian Ellison pled guilty to sexually molesting his two 

daughters on multiple occasions between 2007 and 2014. Ellison was 

designated as a credit restricted felon by the trial court. The credit restricted 

felon statute went into effect in 2008. On appeal, Ellison argues that the trial 

court erred in designating him a credit restricted felon because his offenses 

against one of the victims may have occurred prior to the effective date of the 

statute. Because there is evidence that at least some of the molestations 

occurred after the effective date of the statute, we affirm the trial court’s 

judgment. 

Facts and Procedural History 

[2] Between the dates of January 1, 2007 and June 30, 2014, Ellison, on multiple 

occasions, sexually molested his daughter, A.E. Between the dates of March 3, 

2010 and June 30, 2014, Ellison, on multiple occasions, sexually molested his 

daughter, S.S. On February 2, 2016, Ellison pled guilty to two counts of Class 

B felony child molesting and two counts of Class C felony child molesting. In 

exchange for his guilty plea, Appellee-Plaintiff the State of Indiana dismissed 

several other charges of child molesting. The parties also agreed that the trial 

court would have the discretion to order his sentences run concurrently or 

consecutively and that his initial executed sentence would not exceed forty 

years. The trial court sentenced Ellison to an aggregate term of thirty-six years 

with thirty to be executed and six suspended to probation. The trial court also 
Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 3 of 5

designated Ellison a credit restricted felon and ordered that he register as a sex 

offender upon his release to probation. 

Discussion and Decision 

[3] On appeal, Ellison claims that the trial court erred by designating him a credit 

restricted felon with regards to his offenses committed against A.E.

1

 

Specifically, Ellison argues that those offenses may have occurred prior to the 

date when the credit restricted felon statute was enacted. For its part, the State 

argues that there was sufficient evidence that at least one incident of 

molestation occurred after the effective date of the credit restricted felon statute 

and so the trial court did not err in determining Ellison to be a credit restricted 

felon. 

[4] “Both the United States Constitution and Indiana Constitution prohibit ex post 

facto laws.” Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009), trans. 

denied.; U.S. CONST. ART. I, § 10; IND. CONST. ART. 1, § 24. “‘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.’” Upton, 904 N.E.2d at 705 (quoting Paul v. State, 888 N.E.2d 

818, 825-826 (Ind. Ct. App. 2008)). 

 

1 Credit restricted felons earn less good time credit for each day the person is imprisoned for a crime or while 

confined awaiting trial or sentencing. Ind. Code § 35-50-6-3.
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[5] Indiana Code section 35-31.5-2-72, previously section 35-41-1-5.5, defines

“credit restricted felon,” and includes “a person who has been convicted of 

child molesting involving sexual intercourse or deviate sexual conduct if the 

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

old.” The credit restricted felon statute became effective on July 1, 2008. “At 

the time of sentencing, a court shall determine whether a person is a credit 

restricted felon.” Ind. Code § 35-38-1-7.8. This determination 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 (3) a factual basis 

provided as part of a guilty plea.” Id. 

[6] The sole question here is whether there is sufficient evidence to support the trial 

court’s determination that Ellison molested A.E. on or after July 1, 2008, the 

effective date of the credit restricted felon statute. A.E. told police that she lived 

in two different locations where Ellison molested her: in a mobile home where 

the family lived between 2007 and 2012, and a home the family lived in 

between 2012 and 2015. A.E. also reported molestations were frequent and 

happened when her mother was not home and when Ellison was alone with the 

children. Because A.E. reported that at least some of the molestations occurred 

at the family’s second home, and because the family did not move into that 

home until 2012, there was sufficient evidence for the trial court to determine 

that Ellison molested A.E. after the credit restricted felon statute went into 

effect. 
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[7] In Sharp v. State, Sharp molested his victim every other weekend between 

August 1, 2007 and August 31, 2008. 970 N.E.2d 647, 648 (Ind. 2012). The 

trial court designated Sharp to be a credit restricted felon. On appeal, Sharp 

argued that there was insufficient evidence to support his designation as a credit 

restricted felon because there was no specific finding that any of the acts of 

molestation occurred after the effective date of the credit restricted felon statute. 

The Indiana Supreme Court rejected this argument in the following footnote: 

We need not explore the nature of the ex post facto prohibition, 

however, because C.S. testified at trial that the defendant 

“touched my private area,” Tr. at 76, “[a]bout every other 

weekend I was over [at the defendant’s house in the two years 

preceding October 6, 2008],” Tr. at 74, 77. This was sufficient 

evidence from which a reasonable jury could conclude that the 

defendant molested C.S. after July 1, 2008, the effective date of 

the statute.

Id. at 648 n. 1. The same logic applies to the instant case and the trial court 

properly designated Ellison a credit restricted felon. 

[8] The judgment of the trial court is affirmed. 

Pyle, J., and Altice, J., concur.