A TTORNEY S FOR A PPELLANT A TTORNEYS FOR A PPELLEE

Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Logansport, Indiana Tyler G. Banks Deputy Attorney General Andrew Achey Indianapolis, Indiana Logansport, Indiana

______________________________________________________________________________



# In the Indiana Supreme Court

_________________________________ No. 09S02

- 1707

- CR

- 491

R ODNEY J. M C G UIRE , Appellant ( Defendant b elow)
,

v.
S TATE OF I NDIANA , Appellee ( Plaintiff b elow )

.

_________________________________ Appeal from the Cass Circuit Court , No. 09C01

- 1502

- FA

- 1

The Honorable Leo T. Burns , Judge

_________________________________ On Petition t o Transfer from the Indiana Court of Appeals, No. 09A02

- 1605

- CR

- 1148

_________________________________

July 21, 2017

Per Curiam.
Rodney McGuire and his girlfriend had a long

- term relationship which ended around 2013.
In 2015, the girlfriend’s son, B.P., reported that McGuire had molested him repeatedly over the
course of several years, beginning when B.P. was eight or nine years old. The State charged

McGuire with six counts of Class A felony child molesting. In exchange for dismissal of five

counts, McGuire pleaded guilty to one count of Class A felony child molesting. During the plea
hearing and at sentencing , the State, defense counsel, and the trial court expressed agreement that2

the statutory sentencing range for McGuire’s crime was thirty to fifty years. The trial court
sentenced McGuire to forty years executed in the Department of Correction. McGuire appealed,
contending the trial cour t ’s sentence was based on a mistaken understanding of the minimum

sentence . Indeed, the parties now agree the statutory sentencing range for McGuire’s crime was

twenty to fifty years , with an advisory sentence of thir t y years

. See Ind. Code § 35

- 50

- 2

- 4 ( 2012 ).
The Court of Appeals affirmed McGuire’s forty

- year sentence

. McGuire v. State , No.

09A02

- 1605

- CR

- 1148 , 2017 WL 677734 (Ind. Ct. App. Feb. 21, 2017), reh’g denied

. Though the
parties did not cite a statute for the assumption that thirty years was the minimum sentence, the
Court of Appeals presumed they relied on Indiana Code section 35

- 50

- 2

- 2(i)

. 1 That statute
permitted the trial court to suspend only the portion of McGuire’s sentence exceeding thirty years , because McGuire was over age twenty

- one and B.P. was under age t welve at the time of the crime

. Because the trial court imposed an enhanced sentence of forty years, the Court of Appeals
concluded it could “‘say with confidence that the trial court would have imposed the same

sentence’ had it properly considered the facts and law applicable to the case.” McGuire , 2017 WL
677732, *3 (quoting Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. ) , clarified on reh’g , 875
N.E.2d 218 (Ind. 2007 ) ) . McGuire seeks transfer, asking this Court to remand hi s case for
resentencing.
The Court of Appeals is correct that Indiana Code section 35

- 50

- 2

- 2(i) allowed the trial
court to suspend any portion of McGuire’s sentence exceeding thirty years. But the statute did not
change the minimum sentence from twenty to thirty years. See Miller v. State , 943 N.E.2d 348,
349 (Ind. 2011). We agree with McGuire that remand is appropriate.

1 As the Court of Appeals noted, this portion of the statute was not included in a later recodification. McGuire , 2017 WL 677734, at *2 , n.3.3

Accordingly, we grant transfer and remand the case to the trial court for resentencing
consistent with this opinion. We summarily affirm the Court of Appeals’ opinion in all other

respects. See Appellate Rule 58(A)(2).

Rush, C.J., and David and Slaughter, JJ., concur. Massa, J., dissents with separate opinion.4

Massa, J., dissenting. The Court of Appeals, in its memorandum decision denying relief, concluded it could “‘say
with confidence that the trial court would have imposed the same sentence’ had it properly
considered the facts and law applicable to the case.” McGuire v. State , No . 09A02

- 1605

- CR

- 1148,
2017 WL 677734, at *3 (Ind. Ct. App. Feb. 21, 2017) , reh’g denied (quoting Anglemyer v. State , 868 N.E.2d 482, 491 (Ind.), clarified on reh’g , 875 N.E.2d 218 (Ind. 2007)). I concur completely
with that assessment and thus cannot join in ordering an unnecessary remand.