Edgardo A. Henriquez v. State of Indiana

FILED
Aug 09 2016, 9:09 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
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edgardo A. Henriquez, August 9, 2016
Appellant-Defendant, Court of Appeals Case No.
20A04-1510-CR-1841
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo
Appellee-Plaintiff Trial Court Cause No.
20D03-1211-FA-73
Vaidik, Chief Judge.
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Case Summary
[1] Edgardo Henriquez was convicted of Class A felony child molesting and
sentenced to forty years, with ten years suspended to probation. Henriquez
appeals, arguing that the trial court was required to advise him of his earliest
and latest possible release dates pursuant to Indiana Code section 35-38-1-1(b)
but failed to do so. Because trial courts are not equipped to determine these
dates and Henriquez has not shown that he was harmed by the trial court’s
failure to estimate the dates, we affirm. We also urge the legislature to revisit
Indiana Code section 35-38-1-1(b), which imposes an impracticable burden on
our trial courts.
Facts and Procedural History
[2] A jury found Henriquez guilty of Class A felony child molesting, and the trial
court sentenced him to forty years, with ten years suspended to probation. At
sentencing, the trial court advised Henriquez, pursuant to Indiana Code section
35-38-1-1(b), that he was sentenced for “not less than the earliest release date
and [] for not more than the maximum possible release date.” Tr. p. 637.
However, the trial court did not identify specific “earliest” or “maximum”
release dates.
[3] Henriquez now appeals.
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Discussion and Decision
[4] Henriquez argues that the trial court failed to comply with Indiana Code
section 35-38-1-1(b), which provides: “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 more than the maximum possible
release date.” Henriquez contends that this statute requires trial courts to
provide specific minimum and maximum release dates, not simply a recitation
of the statutory language as the trial court did here.
[5] In interpreting a statute, our goal is to determine and give effect to the intent of
the legislature. George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 154 (Ind.
2011), reh’g denied. We will avoid an interpretation that renders any part of the
statute meaningless or superfluous. Gargano v. Lee Alan Bryant Health Care
Facilities, Inc., 970 N.E.2d 696, 702 (Ind. Ct. App. 2012), reh’g denied.
[6] One way to interpret Section 35-38-1-1(b) would be to say that it requires the
trial court to tell the defendant exactly what the provision says: “You are
sentenced for not less than the earliest release date and for not more than the
maximum possible release date.” In fact, this is the sort of advisement the
Indiana Criminal Benchbook recommends. See Ind. Crim. Benchbook §
68.25.000 (3d ed. 2001, supplemented through July 2014). However, such an
advisement provides no meaningful information to the defendant and therefore
serves no purpose. Thus, we presume that the legislature did not intend for the
statute to be interpreted this way. See Gargano, 970 N.E.2d at 702.
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[7] The only other plausible interpretation of the language is that the trial court is
required to advise the defendant of specific potential release dates. However, it
would be incredibly difficult, if not impossible, for a trial court to determine
these dates with any certainty. The trial court would have to consider not only
the term of the sentence but also the term of any other concurrent or
consecutive sentence, credit time earned before sentencing, the maximum
amount of credit time in the current credit class, possible educational credit
time, and the possibility of parole and probation violations and revocations
down the road. See Hines v. State, 856 N.E.2d 1275, 1284 n.9 (Ind. Ct. App.
2006), trans. denied. At best, the trial court could provide an estimate. Id. But
providing estimated rather than precise release dates may lead to more
confusion than clarity for the offender. Moreover, any mistake by the trial
court would open the door to future collateral sentencing attacks.
[8] In any event, to the extent that the trial court “erred” by failing to provide
specific dates, estimated or otherwise, Henriquez has not shown that he was
harmed in any way by this omission. We will not reverse based on a harmless
error. See Ind. Appellate Rule 66(A); Simons v. State, No. 20A03-1512-CR-2158,
--- N.E.3d --- (Ind. Ct. App. May 13, 2016); Hines, 856 N.E.2d at 1284-85. We
therefore affirm the judgment of the trial court. We also take this opportunity
to encourage our legislature to reconsider Indiana Code section 35-38-1-1(b)
and the unworkable obligation it places on our trial courts.
[9] Affirmed.
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Najam, J., concurs.
Baker, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 5 of 7
IN THE
COURT OF APPEALS OF INDIANA
Edgardo A. Henriquez, Court of Appeals Case No.
20A04-1510-CR-1841
Appellant-Defendant,
v.
State of Indiana,
Appellees-Plaintiff.
Baker, Judge, dissenting.
[10] Although I fully agree with almost all of the majority’s analysis, I respectfully
part ways with its final two paragraphs and dissent from the result it reaches.
The plain language of Indiana Code section 35-38-1-1(b) requires trial courts to
advise a defendant being sentenced “that the person is sentenced for not less
than the earliest release date and for not more than the maximum possible
release date.” This language is not ambiguous. It may be true, as the majority
opines, that this task “would be incredibly difficult, if not impossible,” for trial
courts to accomplish. Slip op. p. 4. Nonetheless, our General Assembly has
mandated this action, and it is not within our purview to exempt trial courts
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from a mandatory statute simply because it may be difficult to comply with its
requirements.
[11] I certainly disagree that this task is “impossible.” Yes, it is complicated, and
yes, it will require consideration of multiple factors and calendars. But I am
confident that the trial judges of this State are up to the task. I do not anticipate
that trial courts will have to speculate whether a defendant may participate in
any programs that might engender a time reduction, but I do believe that the
clear statutory language requires the trial court to attempt to calculate the
earliest date a defendant could be released and also the outside limit of the
possible actual time of incarceration. The mere fact that a statutory
requirement is difficult to fulfill cannot possibly mean that it can be ignored
altogether.
[12] Therefore, I would remand this cause to the trial court so that it can include the
statutorily required advisement in a new sentencing order. I agree with my
colleagues that this lapse provides no relief for this defendant.
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