MEMORANDUM DECISION                                             FILED
                                                            Jun 30 2016, 9:30 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                CLERK
this Memorandum Decision shall not be                       Indiana Supreme Court
                                                               Court of Appeals
regarded as precedent or cited before any                        and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


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

Jerry L. Ward,                                           June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1512-CR-2241
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Dean O. Burton,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         20D01-1503-F5-59



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2241 | June 30, 2016   Page 1 of 4
                                       Statement of the Case
[1]   Jerry L. Ward appeals his sentence after a jury found him guilty of battery, as a

      Level 5 felony. On appeal, Ward argues only that the trial court erred when it

      pronounced his sentence because the court did not advise him of his earliest

      possible release date or his maximum possible release date, as the court was

      required to do pursuant to Indiana Code Section 35-38-1-1(b) (2014). The State

      concedes that the trial court did not properly advise Ward but asserts that

      Ward’s appeal must fail as he has not argued, let alone demonstrated, that the

      trial court’s error affected his substantial rights. We agree with the State and

      affirm Ward’s sentence.


                                 Facts and Procedural History
[2]   On October 1, 2015, a jury found Ward guilty of battery, as a Level 5 felony.

      Thereafter, the trial court sentenced Ward to six years in the Department of

      Correction, with four years executed and two years suspended to supervised

      probation. In pronouncing Ward’s sentence, the trial court did not advise him

      that he would be sentenced for not less than the earliest possible release date

      and for not more than the maximum possible release date. This appeal ensued.


                                     Discussion and Decision
[3]   Ward appeals the trial court’s failure to advise him of his earliest and maximum

      possible release dates. According to Indiana Code Section 35-38-1-1(b):

      “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

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2241 | June 30, 2016   Page 2 of 4
      more than the maximum possible release date.” The State concedes that the

      trial court erred when it did not follow that statutory instruction.


[4]   However, demonstration of error alone is not sufficient to establish reversible

      error on appeal. See Ind. Appellate Rule 66(A). Indeed, in a similar recent

      appeal (also involving Ward’s appellate counsel), we explained:


               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 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)). . . .


               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, . . . [e]ach case is
               different, and the facts of another case might not lead to the same
               harmless error result. . . .


      Simons v. State, --- N.E.3d ---, 2016 WL 2772102 at *1 (Ind. Ct. App. May 13,

      2016).


[5]   We agree with Simons and Hines. As in those cases, here Ward has made no

      argument whatsoever that the trial court’s error in any way prejudiced or

      harmed him. It is the appellant’s burden to persuade this court that the error
      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2241 | June 30, 2016   Page 3 of 4
      complained of requires reversal. Ward has not carried his burden in this

      appeal. We affirm his sentence.


[6]   Affirmed.


      Robb, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2241 | June 30, 2016   Page 4 of 4
