Vaidik, C.J.
Indiana’s child-molesting statute, Indiana Code section 35-42-4-3, establishes two categories of molestation. Subsection (a) addresses molestation by sexual intercourse or “other sexual conduct” … Subsection (b) addresses molestation by “fondling or touching” …
A related statute says that a person who has been “convicted of . . . [c]hild molesting involving sexual intercourse, deviate sexual conduct . . . or other sexual conduct” could, under certain circumstances, be designated a “credit restricted felon.” Ind. Code § 35-31.5-2-72. Such a designation significantly decreases the amount of good-time credit the person earns.
We must decide whether a person who pleads guilty to charges of molestation by “fondling or touching”—but in doing so does not dispute evidence that his molestation included deviate/other sexual conduct (in this case, oral sex and vaginal penetration with an object)—has been “convicted” of child molesting involving deviate/other sexual conduct for purposes of the credit-restricted felon statute. We hold that he has not.
In December 2014, the mother of eleven-year-old S.M. reported to police that Christopher McCoy, S.M.’s thirty-year-old adoptive father, had been molesting S.M. Five months later, the State charged Christopher McCoy with four counts of child molesting under Indiana Code section 35-42-4-3. …
In January 2017, the parties reached a plea agreement under which the State would dismiss the two most serious charges (Counts I and III) and McCoy would plead guilty on the two lesser charges (Counts II and IV), with sentencing left to the trial court’s discretion. At the guilty-plea hearing, when the court asked for a factual basis, McCoy’s attorney recited the allegations in Counts II and IV, and McCoy admitted that they were true. The court then asked the prosecutor if she had anything to add, and she moved to “admit the Probable Cause Affidavit into the factual basis.” McCoy’s attorney said he had no objection, and the court granted the motion. Among other things, the probable-cause affidavit included a statement by S.M. that McCoy had penetrated her vagina with an object she described as “blue rubber with several connected circles.”
At the sentencing hearing, S.M.’s mother testified that McCoy had also engaged in oral sex with S.M. McCoy did not dispute that evidence. …
The trial court found that “the aggravators outweigh the mitigators” and said that it was imposing the maximum sentence of eight years on Count II and the maximum sentence of twelve years on Count IV, “leaving a total sentence of twenty years.” … The court also designated McCoy a “credit restricted felon,” meaning that he would earn one day of good-time credit for every six days he is imprisoned, rather than one day for every day or three days served, which is what most prisoners earn. See Ind. Code §§ 35-50-6-3, -3.1, -4.
….
In addition to challenging his sentence, McCoy argues that the trial court erred by designating him a credit-restricted felon. His argument requires us to consider, for the first time, the interplay between two statutes: Indiana Code sections 35-31.5-2-72, which defines “credit restricted felon,” and 35-38-1-7.8, which sets forth the procedure for determining whether a particular defendant meets that definition. …
Section 35-31.5-2-72 defines “credit restricted felon” as a person who has been convicted of one or more particularly serious sex-related crimes:
…
(1) Child molesting involving sexual intercourse, deviate sexual conduct … or other sexual conduct … if:
(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.
…
… the issue is whether he has been convicted of an offense under subsection (1). The State argues that he has; McCoy argues that he has not. We agree with McCoy.
Again, a person can be a credit-restricted felon under subsection (1) only if he or she has been “convicted” … McCoy, however, pled guilty only to, and was therefore “convicted” only of, offenses under subsection (b) of the child-molesting statute, which addresses molestation by “fondling or touching.”
… Here, evidence was presented at the guilty-plea hearing and the sentencing hearing that McCoy’s molestation of S.M. included oral sex and penetration of S.M.’s vagina by an object.
In support of its position, the State relies on Section 35-38-1-7.8, which provides:
…
(b) A determination under subsection (a) 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.
… the State contends that the trial court was entitled to find that McCoy has been “convicted” of child molesting “involving” deviate sexual conduct or other sexual conduct—even though he pled guilty only to “fondling or touching”—in light of the evidence of oral sex and penetration by an object. We disagree.
The fact that McCoy engaged in deviate/other sexual conduct does not mean that he was convicted of such conduct, which is what the credit-restricted-felon statute requires. See I.C. § 35-31.5-2-72. McCoy was convicted only of “fondling or touching” under subsection (b) of the child-molesting statute.
So what is the purpose of Section 35-38-1-7.8(b) as it relates to subsection (1) of the credit-restricted-felon statute? We believe that the former provision is directed at what we have called the “special circumstances” that must be found under the latter provision, in addition to the qualifying conviction under subsection (a) of the child-molesting statute. … But before addressing the required special circumstances, the court must first ensure that the defendant has a conviction under subsection (a) of the child-molesting statute, which is simply a matter of knowing the count or counts on which a judgment of conviction was entered and what the defendant was charged with in each such count.
Because McCoy has not been convicted of an offense under subsection (a) of the child-molesting statute, Section 35-31.5-2-72(1) cannot apply to him, and the trial court erred by designating him a credit-restricted felon. Therefore, on remand, the trial court must remove that designation and notify the Department of Correction accordingly.
Reversed in part and remanded.
May, J., and Altice, J., concur.