                                                                            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.




Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016                      Page 1 of 7
                                           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.




      Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016   Page 2 of 7
                                 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.


      Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016   Page 3 of 7
[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.



      Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016   Page 4 of 7
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

       Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016              Page 6 of 7
       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.




       Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016   Page 7 of 7
