COA splits over earliest, latest possible release dates

August 9, 2016

Two of three judges on an Indiana Court of Appeals panel urged lawmakers to revisit a requirement that trial courts advise convicts of their earliest and latest possible release dates, but a third judge dismissed the majority’s position that the requirement “imposes an impracticable burden on our trial courts.

Chief Judge Nancy Vaidik and Judge Edward Najam asked the Legislature to look at Indiana Code 35-38-1-1(b) while affirming the Class A felony child molesting conviction and 30-year executed sentence in Edgardo A. Henriquez v. State of Indiana, 20A04-1510-CR-1841. The statute 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.”

Edgardo Henriquez appealed his conviction because this wasn’t done in his sentencing order. The panel agreed that Henriquez wasn’t harmed by this omission, but the majority took the opportunity to point out the practical hardships the requirement places on trial courts.

One way to interpret I.C. 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,'" Vaidik wrote. "In fact, this is the sort of advisement the Indiana Criminal Benchbook recommends. ... 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.

"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,” the majority held. “At best, the trial court could provide an estimate. 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."

Judge John Baker agreed Henriquez was not harmed, but he dissented and would remand the matter to the trial court for entry of a new sentencing order that meets the statutory requirement.
“It may be true, as the majority opines, that this task 'would be incredibly difficult, if not impossible,' for trial courts to accomplish," Baker wrote. "Nonetheless, our General Assembly has mandated this action, and it is not within our purview to exempt trial courts from a mandatory statute simply because it may be difficult to comply with its requirements.

"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."


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