David Simons v. State of Indiana

FILED
May 13 2016, 5:40 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
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Simons, May 13, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1512-CR-2158
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff. Bowers, Judge
Trial Court Cause No.
20D02-1412-F2-002
Pyle, Judge.
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Statement of the Case
[1] David Simons (“Simons”) appeals his sentence imposed following his guilty
plea to Level 2 felony burglary while armed with a deadly weapon 1 and Level 5
felony intimidation.2 Simons does not challenge the actual sentence imposed;
instead, he argues that the trial court erred by failing to advise him of his
earliest release date and maximum possible release date pursuant to INDIANA
CODE § 35-38-1-1(b). Concluding that the trial court’s failure to advise Simons
of his possible release dates was harmless error, we affirm his sentence.
[2] We affirm.
Issue
Whether the trial court’s failure to advise Simons of his possible
release dates was harmless error.
Facts
[3] In December 2014, the State charged Simons with Level 2 felony burglary while
armed with a deadly weapon and Level 5 felony intimidation. On October 13,
2015, after a jury had already been selected for his trial, Simons pled guilty as
charged. The trial court accepted his guilty pleas and, thereafter, imposed an
1
IND. CODE § 35-43-2-1(3)(A).
2
I.C. § 35-35-45-2-1.
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aggregate sentence of twenty-nine (29) years, with twenty (20) years executed
and nine (9) years suspended to probation. Simons now appeals his sentence.
Decision
[4] Simons argues that the trial court erred by failing to advise him of his earliest
release date and maximum possible release date pursuant to INDIANA CODE §
35-38-1-1(b). He asserts that he was “entitled to such an advisement” and
requests that we remand this case “so that the trial court can comply with this
statute.” (Simons’ Br. 1, 2).
[5] INDIANA CODE § 35-38-1-1(b) provides that when a trial court pronounces a
defendant’s 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.” (Emphasis added).
[6] The State acknowledges the language of the statute and that the trial court did
not advise Simons of any possible release dates. The State, however, argues
that “Simons fail[ed] to identify any prejudice resulting from the lack of such an
advisement, and therefore [wa]s not entitled to any relief under Appellate Rule
66(A)[.]” (State’s Br. 5). We agree.
[7] 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
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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)). We also noted that the Department of
Correction calculated a defendant’s earliest possible release date and listed such
date on its website. See id. at 1284 n.9.
[8] 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, when a statute uses the word
“shall” it is considered “mandatory language creating a statutory right to a
particular outcome after certain conditions are met.” Taylor v. State, 7 N.E.3d.
362, 365 (Ind. Ct. App. 2014). As a result, such an advisement is statutorily
required when a sentence is pronounced by Indiana’s trial courts.3 Each case is
different, and the facts of another case might not lead to the same harmless
error result. But here, we affirm Simons’ sentence.
[9] Affirmed.
Kirsch, J., and Riley, J., concur.
3
We note that the Indiana Criminal Benchbook, which is published by the Indiana Judicial Center and
distributed to trial judges, contains an example of such an advisement. See Ind. Crim. Benchbook §
68.25.000 (3d ed. 2001).
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