Jerry L. Ward v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jun 30 2016, 9:30 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry L. Ward, June 30, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1512-CR-2241
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Dean O. Burton,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
20D01-1503-F5-59
Najam, Judge.
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Statement of the Case
[1] Jerry L. Ward appeals his sentence after a jury found him guilty of battery, as a
Level 5 felony. On appeal, Ward argues only that the trial court erred when it
pronounced his sentence because the court did not advise him of his earliest
possible release date or his maximum possible release date, as the court was
required to do pursuant to Indiana Code Section 35-38-1-1(b) (2014). The State
concedes that the trial court did not properly advise Ward but asserts that
Ward’s appeal must fail as he has not argued, let alone demonstrated, that the
trial court’s error affected his substantial rights. We agree with the State and
affirm Ward’s sentence.
Facts and Procedural History
[2] On October 1, 2015, a jury found Ward guilty of battery, as a Level 5 felony.
Thereafter, the trial court sentenced Ward to six years in the Department of
Correction, with four years executed and two years suspended to supervised
probation. In pronouncing Ward’s sentence, the trial court did not advise him
that he would be sentenced for not less than the earliest possible release date
and for not more than the maximum possible release date. This appeal ensued.
Discussion and Decision
[3] Ward appeals the trial court’s failure to advise him of his earliest and maximum
possible release dates. According to Indiana Code Section 35-38-1-1(b):
“When the court pronounces the sentence, the court shall advise the person that
the person is sentenced for not less than the earliest release date and for not
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more than the maximum possible release date.” The State concedes that the
trial court erred when it did not follow that statutory instruction.
[4] However, demonstration of error alone is not sufficient to establish reversible
error on appeal. See Ind. Appellate Rule 66(A). Indeed, in a similar recent
appeal (also involving Ward’s appellate counsel), we explained:
In Hines v. State, 856 N.E.2d 1275 (Ind. Ct. App. 2006), trans.
denied, a defendant made the same appellate argument that
Simons now makes, i.e., that the trial court failed to comply with
the pronouncement requirement in INDIANA CODE § 35-38-1-
1(b). Noting that Hines had in “no way allege[d] that he was
prejudiced or harmed in any way by the trial court’s failure[,]”
we determined that the trial court’s lack of advisement of possible
release dates was harmless error upon which we could not grant
relief. Hines, 856 N.E.2d at 1284-85 (citing App. R. 66(A)). . . .
Here, as in Hines, Simons has not alleged that he was prejudiced
or harmed by the trial court’s failure to advise him of his earliest
release date and maximum possible release date. Although the
trial court did not make the advisement as set forth in INDIANA
CODE § 35-38-1-1(b), such failure was harmless error. See, e.g.,
Hines, 856 N.E.2d at 1284-85. Nonetheless, . . . [e]ach case is
different, and the facts of another case might not lead to the same
harmless error result. . . .
Simons v. State, --- N.E.3d ---, 2016 WL 2772102 at *1 (Ind. Ct. App. May 13,
2016).
[5] We agree with Simons and Hines. As in those cases, here Ward has made no
argument whatsoever that the trial court’s error in any way prejudiced or
harmed him. It is the appellant’s burden to persuade this court that the error
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complained of requires reversal. Ward has not carried his burden in this
appeal. We affirm his sentence.
[6] Affirmed.
Robb, J., and Crone, J., concur.
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