Jerry L. Ward v. State of Indiana (mem. dec.)

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

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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.

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