Angela R. Neal v. State of Indiana , 2016 Ind. App. LEXIS 473 ( 2016 )

FILED
Dec 29 2016, 9:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela R. Neal, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
20A04-1606-CR-1326
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1501-FA-2
Najam, Judge.
Statement of the Case
[1] Indiana Code Section 35-38-1-7.8(c) (2016) provides that, “[u]pon determining
that a defendant is a credit restricted felon, a court shall advise the defendant of
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the consequences of this determination.” In this appeal, Angela R. Neal1
presents a question of first impression: whether the trial court’s advisement of
the consequences of Neal’s status as a credit-restricted felon complied with
Section 7.8(c). We conclude that the trial court’s advisement substantially
complied with Section 7.8(c) and that there is no particular language that a trial
court must use in order to comply with the statute. Accordingly, we affirm.
Facts and Procedural History
[2] On April 19, 2016, a jury found Neal guilty of two counts of child molesting,
each as a Class A felony. At her ensuing sentencing hearing, Neal’s counsel
conceded that Neal was a credit-restricted felon based on the age of her victims.
The court accepted her concession and then advised her as follows:
As to Count II, Child Molest, as a Class A felony, the court
hereby sentences the defendant to 30 years at the Indiana
Department of Correction[.] As to Count III, on Child Molest,
as a Class A felony, the court hereby sentences the defendant to
30 years at the Indiana Department of Correction[.] Count II
and Count III will run consecutive to each other. The court also
finds that she is a credit-restricted felon and should be treated as such for
good-time credit, through the Indiana Department of Correction[.]
***
The court advises the defendant that the defendant is not
sentenced for less than the earliest possible release date and not
1
Neal’s brief and appendix on appeal incorrectly identify her middle initial.
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more than the maximum possible release date. The court now
grants the defendant 444 days credit for time served prior to sentencing,
and the court finds no reason why she should not receive earned credit
time at the credit-restricted felon status.
Tr. at 226-27 (emphases added). The court then sentenced Neal to an aggregate
term of sixty years. This appeal ensued.
Discussion and Decision
[3] Neal appeals the trial court’s advisement with respect to the consequences of
her status as a credit-restricted felon. According to Indiana Code Section 35-38-
1-7.8(c), “[u]pon determining that a defendant is a credit restricted felon, a
court shall advise the defendant of the consequences of this determination.”
Neal initially suggests that we should review the trial court’s compliance with
Section 7.8(c) “for an abuse of discretion,” but she then states that compliance
with Section 7.8(c) “is not discretionary.” Appellant’s Br. at 4-5. We agree that
compliance with Section 7.8(c) is not discretionary. Rather, upon determining
that a defendant is a credit-restricted felon, the trial court “shall advise” the
defendant accordingly. Neal’s argument on appeal is that the trial court’s
advisement was not sufficient as a matter of law to satisfy the requirement of
Section 7.8(c). We review such questions de novo. E.g., Gray v. State, 903
N.E.2d 940, 946 (Ind. 2009); Kladis v. Nick’s Patio, Inc., 735 N.E.2d 1216, 1219
(Ind. Ct. App. 2000).
[4] A defendant’s status as a credit-restricted felon is relevant to the defendant’s
initial assignment to a credit-time class, which, in turn, affects the defendant’s
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accrual of credit time toward her sentence. See I.C. § 35-50-6-3.2 Specifically,
as relevant here, Indiana Code Section 35-50-6-3 states that a defendant
assigned to the following credit-time classes earns credit time as follows:
(b) A person assigned to Class I earns one (1) day of good time
credit for each day the person is imprisoned for a crime or
confined awaiting trial or sentencing.
(c) A person assigned to Class II earns one (1) day of good time
credit for every two (2) days the person is imprisoned for a crime
or confined awaiting trial or sentencing.
(d) A person assigned to Class III earns no good time credit.
(e) A person assigned to Class IV earns one (1) day of good time
credit for every six (6) days the person is imprisoned for a crime
or confined awaiting trial or sentencing.
And the initial assignment of a defendant to a particular credit-time class
depends on the defendant’s status as a credit-restricted felon:
(a) A person who is not a credit restricted felon and who is
imprisoned for a crime or imprisoned awaiting trial or sentencing
is initially assigned to Class I.
2
We note that Indiana Code Section 35-50-6-3 bears the heading “Credit time classes for a person convicted
before July 1, 2014,” while subsection (a) of that statute states that it only “applies to a person who commits an
offense before July 1, 2014.” (Emphases added.) We follow the plain language of the statute and do not
consider its heading. See, e.g., Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1047 (Ind. Ct. App. 1993),
trans. denied.
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(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.
I.C. § 35-50-6-4 (2014). In other words, upon determining that a defendant is a
credit-restricted felon, the court assigns the defendant to a particular credit-time
class, which, as a consequence, affects the rate at which the defendant earns
credit time toward her sentence.
[5] Thus, in requiring the sentencing court to “advise the defendant of the
consequences” of her status as a credit-restricted felon, Section 7.8(c) requires
the sentencing court to advise the defendant that there is a relationship between
her status and the accrual of her credit time. There is no particular language
that the court must use to satisfy Section 7.8(c). As long as the sentencing
court’s advisement makes clear to the defendant that it is her status as a credit-
restricted felon that determines the calculation of her credit time, the court has
satisfied the command of Section 7.8(c).
[6] The trial court did that here. Again, the court expressly advised Neal that “she
is a credit-restricted felon and should be treated as such for good-time credit.”
Tr. at 226. The court further advised her that it would award her “444 days
credit for time served prior to sentencing” and that “the court finds no reason
why she should not receive earned credit time at the credit-restricted felon
status.” Id. at 227. The court’s statements to Neal made it clear that her status
as a credit-restricted felon would impact her ability to earn credit time, and, as
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such, the court substantially complied with the requirement of Section 7.8(c).
Accordingly, we affirm.
[7] Affirmed.
Bailey, J., and May, J., concur.
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