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

ATTORNEY FOR APPELLANT

Peter D. Todd

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

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.

May 13, 2016

Court of Appeals Case No.

20A03-1512-CR-2158

Appeal from the Elkhart Superior 

Court

The Honorable Stephen R. 

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 2 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 weapon1 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.
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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 
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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 

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).