                                                                          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.




Court of Appeals of Indiana | Opinion 20A03-1512-CR-2158 | May 13, 2016                     Page 1 of 4
                                         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.



      Court of Appeals of Indiana | Opinion 20A03-1512-CR-2158 | May 13, 2016         Page 2 of 4
      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
      Court of Appeals of Indiana | Opinion 20A03-1512-CR-2158 | May 13, 2016     Page 3 of 4
      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).

      Court of Appeals of Indiana | Opinion 20A03-1512-CR-2158 | May 13, 2016                       Page 4 of 4
