Court of Appeals of Indiana | Opinion 20A03

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A TTORNEY FOR A PPELLANT Peter D. Todd Elkhart, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA

David Simons , Appellant

- Defendant,
v. 

### State of Indiana , Appellee

- Plaintiff

. M ay 13, 2016 Court of Appeals Ca se No. 20A03

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- 2158 Appeal from the Elkhart Superior Court The Honorable Stephen R. Bowers, Judge Trial Court Cause No. 20D02

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Pyle , Judge .Court of Appeals of Indiana | Opinion 20A03

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### S tatement 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 no t 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 I NDIANA C ODE § 35

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- 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 I ND
. C ODE § 35

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- 1(3)(A). 2 I.C. § 35

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- 1.Court of Appeals of Indiana | Opinion 20A03

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aggregate sentence of twenty

- nine (2 9 ) years, with twenty (20) years executed and nine (9) years suspended to probation. Simons now appeals his sentence. 

### Decision
[4] Simons arg ues that the trial court erred by failing to advise him of his earliest release date and maximum possible release date pursuant to I NDIANA C ODE § 35

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- 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] I NDIANA C ODE § 35

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- 1(b) provides that wh en a trial court pronounces a defendant’s s entence, “ 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. ” (E mphasis 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, ar gues 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 I NDIANA C ODE § 35

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- 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 [,]” weCourt of Appeals of Indiana | Opinion 20A03

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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 12 84

- 85 (citing A pp. 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 allege d that he was prejudiced or harmed by t he 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 I NDIANA C ODE § 35

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- 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 statutori ly 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’ sente nce.
[9] Affirmed.

K irsch, 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).