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


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  •                                                                                  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
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016                   Page 1 of 6
    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.
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016               Page 2 of 6
    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
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016        Page 3 of 6
    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.
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016                          Page 4 of 6
    (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
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016   Page 5 of 6
    such, the court substantially complied with the requirement of Section 7.8(c).
    Accordingly, we affirm.
    [7]   Affirmed.
    Bailey, J., and May, J., concur.
    Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016   Page 6 of 6
    

Document Info

Docket Number: 20A04-1606-CR-1326

Citation Numbers: 65 N.E.3d 1139, 2016 Ind. App. LEXIS 473

Judges: Najam, Bailey

Filed Date: 12/29/2016

Precedential Status: Precedential

Modified Date: 10/19/2024