Edgardo A. Henriquez v. State of Indiana

FILED Aug 09 2016, 9:09 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

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edgardo A. Henriquez, August 9, 2016 Appellant-Defendant, Court of Appeals Case No. 20A04-1510-CR-1841 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo Appellee-Plaintiff Trial Court Cause No. 20D03-1211-FA-73

Vaidik, Chief Judge. Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 1 of 7

Case Summary [1] Edgardo Henriquez was convicted of Class A felony child molesting and

sentenced to forty years, with ten years suspended to probation. Henriquez

appeals, arguing that the trial court was required to advise him of his earliest

and latest possible release dates pursuant to Indiana Code section 35-38-1-1(b)

but failed to do so. Because trial courts are not equipped to determine these

dates and Henriquez has not shown that he was harmed by the trial court’s

failure to estimate the dates, we affirm. We also urge the legislature to revisit

Indiana Code section 35-38-1-1(b), which imposes an impracticable burden on

our trial courts.

Facts and Procedural History [2] A jury found Henriquez guilty of Class A felony child molesting, and the trial

court sentenced him to forty years, with ten years suspended to probation. At

sentencing, the trial court advised Henriquez, pursuant to Indiana Code section

35-38-1-1(b), that he was sentenced for “not less than the earliest release date

and [] for not more than the maximum possible release date.” Tr. p. 637.

However, the trial court did not identify specific “earliest” or “maximum”

release dates. [3] Henriquez now appeals.

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Discussion and Decision [4] Henriquez argues that the trial court failed to comply with Indiana Code

section 35-38-1-1(b), which provides: “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 more than the maximum possible

release date.” Henriquez contends that this statute requires trial courts to

provide specific minimum and maximum release dates, not simply a recitation

of the statutory language as the trial court did here. [5] In interpreting a statute, our goal is to determine and give effect to the intent of

the legislature. George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 154 (Ind.

2011), reh’g denied. We will avoid an interpretation that renders any part of the

statute meaningless or superfluous. Gargano v. Lee Alan Bryant Health Care

Facilities, Inc., 970 N.E.2d 696, 702 (Ind. Ct. App. 2012), reh’g denied. [6] One way to interpret Section 35-38-1-1(b) would be to say that it requires the

trial court to tell the defendant exactly what the provision says: “You are

sentenced for not less than the earliest release date and for not more than the

maximum possible release date.” In fact, this is the sort of advisement the

Indiana Criminal Benchbook recommends. See Ind. Crim. Benchbook §

68.25.000 (3d ed. 2001, supplemented through July 2014). However, such an

advisement provides no meaningful information to the defendant and therefore

serves no purpose. Thus, we presume that the legislature did not intend for the

statute to be interpreted this way. See Gargano, 970 N.E.2d at 702.

Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 3 of 7 [7] The only other plausible interpretation of the language is that the trial court is

required to advise the defendant of specific potential release dates. However, it

would be incredibly difficult, if not impossible, for a trial court to determine

these dates with any certainty. The trial court would have to consider not only

the term of the sentence but also the term of any other concurrent or

consecutive sentence, credit time earned before sentencing, the maximum

amount of credit time in the current credit class, possible educational credit

time, and the possibility of parole and probation violations and revocations

down the road. See Hines v. State, 856 N.E.2d 1275, 1284 n.9 (Ind. Ct. App.

2006), trans. denied. At best, the trial court could provide an estimate. Id. But

providing estimated rather than precise release dates may lead to more

confusion than clarity for the offender. Moreover, any mistake by the trial

court would open the door to future collateral sentencing attacks. [8] In any event, to the extent that the trial court “erred” by failing to provide

specific dates, estimated or otherwise, Henriquez has not shown that he was

harmed in any way by this omission. We will not reverse based on a harmless

error. See Ind. Appellate Rule 66(A); Simons v. State, No. 20A03-1512-CR-2158,

--- N.E.3d --- (Ind. Ct. App. May 13, 2016); Hines, 856 N.E.2d at 1284-85. We

therefore affirm the judgment of the trial court. We also take this opportunity

to encourage our legislature to reconsider Indiana Code section 35-38-1-1(b)

and the unworkable obligation it places on our trial courts. [9] Affirmed.

Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 4 of 7 Najam, J., concurs. Baker, J., dissents with separate opinion. Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 5 of 7

IN THE COURT OF APPEALS OF INDIANA

Edgardo A. Henriquez, Court of Appeals Case No. 20A04-1510-CR-1841 Appellant-Defendant,

v.

State of Indiana, Appellees-Plaintiff.

Baker, Judge, dissenting. [10] Although I fully agree with almost all of the majority’s analysis, I respectfully

part ways with its final two paragraphs and dissent from the result it reaches.

The plain language of Indiana Code section 35-38-1-1(b) requires trial courts to

advise a defendant being sentenced “that the person is sentenced for not less

than the earliest release date and for not more than the maximum possible

release date.” This language is not ambiguous. It may be true, as the majority

opines, that this task “would be incredibly difficult, if not impossible,” for trial

courts to accomplish. Slip op. p. 4. Nonetheless, our General Assembly has

mandated this action, and it is not within our purview to exempt trial courts

Court of Appeals of Indiana | Opinion 20A04-1510-CR-1841 | August 9, 2016 Page 6 of 7

from a mandatory statute simply because it may be difficult to comply with its

requirements. [11] I certainly disagree that this task is “impossible.” Yes, it is complicated, and

yes, it will require consideration of multiple factors and calendars. But I am

confident that the trial judges of this State are up to the task. I do not anticipate

that trial courts will have to speculate whether a defendant may participate in

any programs that might engender a time reduction, but I do believe that the

clear statutory language requires the trial court to attempt to calculate the

earliest date a defendant could be released and also the outside limit of the

possible actual time of incarceration. The mere fact that a statutory

requirement is difficult to fulfill cannot possibly mean that it can be ignored

altogether. [12] Therefore, I would remand this cause to the trial court so that it can include the

statutorily required advisement in a new sentencing order. I agree with my

colleagues that this lapse provides no relief for this defendant.

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