                                                                                 FILED
                                                                            Dec 29 2016, 9:33 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

                                                               Chandra K. Hein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Angela R. Neal,                                          December 29, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A04-1606-CR-1326
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      State of Indiana,                                        The Honorable Teresa L. Cataldo,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               20D03-1501-FA-2



      Najam, Judge.


                                       Statement of the Case
[1]   Indiana Code Section 35-38-1-7.8(c) (2016) provides that, “[u]pon determining

      that a defendant is a credit restricted felon, a court shall advise the defendant of



      Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016                   Page 1 of 6
      the consequences of this determination.” In this appeal, Angela R. Neal1

      presents a question of first impression: whether the trial court’s advisement of

      the consequences of Neal’s status as a credit-restricted felon complied with

      Section 7.8(c). We conclude that the trial court’s advisement substantially

      complied with Section 7.8(c) and that there is no particular language that a trial

      court must use in order to comply with the statute. Accordingly, we affirm.


                                     Facts and Procedural History
[2]   On April 19, 2016, a jury found Neal guilty of two counts of child molesting,

      each as a Class A felony. At her ensuing sentencing hearing, Neal’s counsel

      conceded that Neal was a credit-restricted felon based on the age of her victims.

      The court accepted her concession and then advised her as follows:


                 As to Count II, Child Molest, as a Class A felony, the court
                 hereby sentences the defendant to 30 years at the Indiana
                 Department of Correction[.] As to Count III, on Child Molest,
                 as a Class A felony, the court hereby sentences the defendant to
                 30 years at the Indiana Department of Correction[.] Count II
                 and Count III will run consecutive to each other. The court also
                 finds that she is a credit-restricted felon and should be treated as such for
                 good-time credit, through the Indiana Department of Correction[.]


                                                           ***


                 The court advises the defendant that the defendant is not
                 sentenced for less than the earliest possible release date and not




      1
          Neal’s brief and appendix on appeal incorrectly identify her middle initial.

      Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016               Page 2 of 6
              more than the maximum possible release date. The court now
              grants the defendant 444 days credit for time served prior to sentencing,
              and the court finds no reason why she should not receive earned credit
              time at the credit-restricted felon status.


      Tr. at 226-27 (emphases added). The court then sentenced Neal to an aggregate

      term of sixty years. This appeal ensued.


                                     Discussion and Decision
[3]   Neal appeals the trial court’s advisement with respect to the consequences of

      her status as a credit-restricted felon. According to Indiana Code Section 35-38-

      1-7.8(c), “[u]pon determining that a defendant is a credit restricted felon, a

      court shall advise the defendant of the consequences of this determination.”

      Neal initially suggests that we should review the trial court’s compliance with

      Section 7.8(c) “for an abuse of discretion,” but she then states that compliance

      with Section 7.8(c) “is not discretionary.” Appellant’s Br. at 4-5. We agree that

      compliance with Section 7.8(c) is not discretionary. Rather, upon determining

      that a defendant is a credit-restricted felon, the trial court “shall advise” the

      defendant accordingly. Neal’s argument on appeal is that the trial court’s

      advisement was not sufficient as a matter of law to satisfy the requirement of

      Section 7.8(c). We review such questions de novo. E.g., Gray v. State, 903

      N.E.2d 940, 946 (Ind. 2009); Kladis v. Nick’s Patio, Inc., 735 N.E.2d 1216, 1219

      (Ind. Ct. App. 2000).


[4]   A defendant’s status as a credit-restricted felon is relevant to the defendant’s

      initial assignment to a credit-time class, which, in turn, affects the defendant’s

      Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016        Page 3 of 6
accrual of credit time toward her sentence. See I.C. § 35-50-6-3.2 Specifically,

as relevant here, Indiana Code Section 35-50-6-3 states that a defendant

assigned to the following credit-time classes earns credit time as follows:

         (b) A person assigned to Class I earns one (1) day of good time
         credit for each day the person is imprisoned for a crime or
         confined awaiting trial or sentencing.


         (c) A person assigned to Class II earns one (1) day of good time
         credit for every two (2) days the person is imprisoned for a crime
         or confined awaiting trial or sentencing.


         (d) A person assigned to Class III earns no good time credit.


         (e) A person assigned to Class IV earns one (1) day of good time
         credit for every six (6) days the person is imprisoned for a crime
         or confined awaiting trial or sentencing.


And the initial assignment of a defendant to a particular credit-time class

depends on the defendant’s status as a credit-restricted felon:

         (a) A person who is not a credit restricted felon and who is
         imprisoned for a crime or imprisoned awaiting trial or sentencing
         is initially assigned to Class I.




2
   We note that Indiana Code Section 35-50-6-3 bears the heading “Credit time classes for a person convicted
before July 1, 2014,” while subsection (a) of that statute states that it only “applies to a person who commits an
offense before July 1, 2014.” (Emphases added.) We follow the plain language of the statute and do not
consider its heading. See, e.g., Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1047 (Ind. Ct. App. 1993),
trans. denied.

Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016                          Page 4 of 6
              (b) A person who is a credit restricted felon and who is
              imprisoned for a crime or imprisoned awaiting trial or sentencing
              is initially assigned to Class IV. A credit restricted felon may not
              be assigned to Class I or Class II.


      I.C. § 35-50-6-4 (2014). In other words, upon determining that a defendant is a

      credit-restricted felon, the court assigns the defendant to a particular credit-time

      class, which, as a consequence, affects the rate at which the defendant earns

      credit time toward her sentence.


[5]   Thus, in requiring the sentencing court to “advise the defendant of the

      consequences” of her status as a credit-restricted felon, Section 7.8(c) requires

      the sentencing court to advise the defendant that there is a relationship between

      her status and the accrual of her credit time. There is no particular language

      that the court must use to satisfy Section 7.8(c). As long as the sentencing

      court’s advisement makes clear to the defendant that it is her status as a credit-

      restricted felon that determines the calculation of her credit time, the court has

      satisfied the command of Section 7.8(c).


[6]   The trial court did that here. Again, the court expressly advised Neal that “she

      is a credit-restricted felon and should be treated as such for good-time credit.”

      Tr. at 226. The court further advised her that it would award her “444 days

      credit for time served prior to sentencing” and that “the court finds no reason

      why she should not receive earned credit time at the credit-restricted felon

      status.” Id. at 227. The court’s statements to Neal made it clear that her status

      as a credit-restricted felon would impact her ability to earn credit time, and, as


      Court of Appeals of Indiana | Opinion 20A04-1606-CR-1326 | December 29, 2016   Page 5 of 6
      such, the court substantially complied with the requirement of Section 7.8(c).

      Accordingly, we affirm.


[7]   Affirmed.


      Bailey, J., and May, J., concur.




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