Buster Joel Toschlog v. State of Indiana

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MEMORANDUM DECISION - NOT FOR PUBLICATION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