Opinion
23A-CR-1596
07-31-2024
Net Shar, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT David E. Deal David E. Deal & Associates Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D06-2006-F1-8
ATTORNEY FOR APPELLANT
David E. Deal
David E. Deal & Associates
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Ian McLean
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
MAY, JUDGE.
[¶1] Net Shar appeals following his convictions of two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. Shar raises four issues, which we expand, reorder, and restate as:
1. Whether the trial court denied Shar due process by failing to provide an effective interpreter;
2. Whether the State presented sufficient evidence to support Shar's convictions;
3. Whether Shar was denied his right of allocution at sentencing;
4. Whether the sentence imposed by the trial court was:
4.1 an abuse of the trial court's discretion, or
4.2 inappropriate based on Shar's offenses and his character; and
5. Whether the trial court erroneously designated Shar a credit restricted felon without making such a finding at sentencing or advising him of the consequences thereof.
We affirm.
Facts and Procedural History
[¶2] Shar is an American citizen of Burmese descent who came to the United States seeking refuge from religious persecution. He has a fourth-grade education and speaks very little English. In 2018, Shar lived in a house in Fort Wayne with his then-seventeen-year-old daughter, Thet Yusof, and his uncle, Eye Rit. Shar was friends with a man named Bay Lar, who had sole custody of his eight-year-old daughter, A.S. On days when Lar had to work, he would be away from home until 11:00 p.m., so Shar would take A.S. to his house for the evening. A.S. went to Shar's house multiple times each week.
[¶3] When A.S. would arrive at Shar's house after school, Yusof would be at high school and Rit would be working at his restaurant. While Shar and A.S. were alone, Shar would carry A.S. to his bedroom and put her on the bed. He would undress her completely and take off his pants, and then he would touch her breasts and vagina, lick her vagina, and put his penis in her vagina. When Shar would penetrate A.S., "it would hurt, and I would feel like uncomfortable, very uncomfortable." (Tr. Vol. 1 at 130.) Shar committed these acts "many times[.]" (Id. at 125.)
[¶4] In early 2019, Yusof entered Shar's bedroom and saw A.S. and Shar on Shar's bed. A.S. looked very uncomfortable, so Yusof asked A.S. what was happening. A.S. told Yusof that Shar had been molesting her. After A.S. left that night, Yusof confronted Shar and he denied molesting A.S. Shar indicated to Yusof that he would not babysit A.S. in the future. Soon thereafter, in March 2019, Yusof moved out of Shar's house. A.S. continued going to Shar's house, and Shar "continued to do all of those inappropriate things." (Id. at 132.)
[¶5] In March 2020, A.S. reconnected with Yusof and informed Yusof that Shar continued to have A.S. at his house and molest her. Yusof and her friend, Sarah Morales, met with A.S., and then went home with A.S. to tell Lar what was happening. Yusof and Morales drove A.S. to the hospital emergency room, and Yusof went into the hospital with A.S. A.S. reported to hospital personnel what Shar had been doing to her, she was examined and given tests, and she was interviewed by both the police and a worker from the Department of Child Services. After going to the hospital, A.S. never again went to Shar's house.
[¶6] On June 30, 2020, the State charged Shar with two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. A three-day jury trial commenced on May 9, 2023. Interpreters translated for Shar during trial. The jury found Shar guilty of all three charges.
[¶7] Following completion of a presentence investigation report, the court held a sentencing hearing on June 16, 2023. The trial court found a mitigator in Shar's lack of criminal history and an aggravator in his violation of a position of trust. The trial court imposed a thirty-year sentence for each Level 1 felony and a six-year sentence for the Level 4 felony. The court ordered the sentences served consecutively, for a cumulative sentence of sixty-six years. The court also found Shar to be a credit-restricted felon.
Discussion and Decision
1. Adequacy of Interpreter
[¶8] Shar first argues the trial court denied him due process by failing to provide an effective interpreter. "Ensuring meaningful access to justice requires that all litigants - including those with limited English proficiency - are equally given the opportunity to participate meaningfully throughout the legal proceedings." Ponce v. State, 9 N.E.3d 1265, 1274 (Ind. 2014).
Courts have long recognized that a foreign language defendant's capacity to understand and appreciate the proceedings, to participate with his counsel, to confront his accusers, and to waive rights knowingly and intelligently, is undermined without an interpreter actively participating in his defense. Undoubtedly, the defendant is denied due process when, among other things, what is told him is incomprehensible [or] the accuracy and scope of a translation at a hearing or trial is subject to grave doubt[.] For this reason we have declared that a defendant who cannot speak or understand English has [the] right to have his proceedings simultaneously translated to allow for effective participation. We elaborated that such interpretation must include the precise form and tenor of each question propounded, and . . . in like manner translate the precise expressions of the [defendant]. This is so because the interpreter's role during a criminal proceeding is a critical one. Language interpreters overcome the barriers and cultural misunderstandings that can render criminal defendants virtually absent from their own proceedings.Id. at 1272 (internal quotations and citations omitted).
[¶9] Because inaccurate interpretation of proceedings would "run the risk of diminishing our system of justice by infringing upon the defendant's rights of due process[,]" id. at 1269, "simply providing 'any' interpreter upon request is insufficient." Id. Instead, interpreters "must be qualified and must give an oath or affirmation to make a true translation." Ind. Evid. Rule 604. Trial courts should examine an interpreter on the record to confirm the interpreter is qualified and "should also administer an oath or affirmation that the interpreter will make a true translation." Mariscal v. State, 687 N.E.2d 378, 382 (Ind.Ct.App. 1997), reh'g denied, trans. denied. Indiana precedent has "long held" the form and manner of the examination of the interpreter is left to the trial court's discretion. Cruz Angeles v. State, 751 N.E.2d 790, 795 (Ind.Ct.App. 2001), trans. denied.
[¶10] Herein, each time a new interpreter arrived to assist Shar, the trial court swore in the interpreter with questioning such as this:
THE COURT: And Mr. Yu, can you please raise your right hand? And do you swear or affirm under penalties for perjury that you will accurately [translate] in this case all the questions and the statements made to the defendant or the witnesses, as well as their responses?
THE INTERPRETER: Yes, I do, Your Honor.(Tr. Vol. 1 at 3-4.) Thus, the trial court fulfilled its obligation to ensure the translators would "make a true translation." Evid. R. 604.
[¶11] Shar notes the record does not, however, demonstrate the trial court inquired about the qualifications of the interpreters. While it is true that the record before us does not include any questioning of the interpreters regarding their qualifications as Burmese speakers or court interpreters, the State also correctly notes that Shar has not provided transcripts of numerous pre-trial hearings at which the record indicates interpreters had been requested to assist Shar. (See, e.g., App. Vol. 2 at 198, 195, 154, 151, 148.) As Shar failed to request transcripts of those hearings, within which the trial court may well have assessed the qualifications of the same interpreters used at trial, we cannot assign error to the trial court. See Martinez v. State, 82 N.E.3d 261, 263-64 (Ind.Ct.App. 2017) (allegation that appellant did not waive right to jury trial waived for appeal when appellant failed to provide transcripts of pretrial hearings "which would be integral to our review of his arguments"), trans. denied.
[¶12] Furthermore, when a defendant fails to object to the trial court's use of an interpreter without inquiring into the interpreter's qualifications, the suitability of the interpreter is waived for appeal. Mariscal, 687 N.E.2d at 382. Nor can the "failure to establish the qualifications of an interpreter" constitute fundamental error. Tesfamariam v. Woldenhaimanot, 956 N.E.2d 118, 123 (Ind.Ct.App. 2011). Nor could we determine whether Shar received inadequate or inaccurate translations from his translators without the kinds of additional evidence that could be presented in post-conviction proceedings. See Cruz Angeles, 751 N.E.2d at 796-97 (appellate court could not make factual determinations about adequacy of translations without issue first being presented to post-conviction court); see also Ponce, 9 N.E.3d 1265 (challenging via post-conviction proceedings the adequacy of the translation defendant received of the court's advisement for guilty plea). None of the problems cited by Shar - such as technical difficulties and momentary lapses in translation -reflect an abject denial of due process that would cause us to look past the numerous procedural reasons we are unable review this issue on the merits.
2. Sufficiency of Evidence
[¶13] Shar next argues the State presented insufficient evidence to support his three convictions because "there was conflicting testimony, no physical evidence, and one of the main witnesses had a motive to support the allegations." (Appellant's Br. at 28.) When faced with challenges to the sufficiency of evidence, we apply a "well settled" standard of review that leaves determinations of the weight of the evidence and credibility of the witnesses to the fact-finder. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). "We consider only the evidence most favorable to the trial court's ruling and will affirm a defendant's conviction unless 'no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.'" Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).
[¶14] To convict Shar of Level 1 felony child molesting, the State had to prove Shar, who was over twenty-one years old, knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct with A.S., who was under fourteen years old. See Ind. Code § 35-42-4-3(a). "Other sexual conduct" was defined by our legislature, in relevant part, as "an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person ...." Ind. Code § 35-31.5-2-221.5. Count One against Shar alleged he knowingly or intentionally performed other sexual conduct on A.S. by "plac[ing] his mouth on or in the female sex organ of" A.S., who was under fourteen years old. (Appellant's App. Vol. 2 at 204.) Count Two alleged Shar "did knowingly or intentionally perform or submit to sexual intercourse with" A.S., who was under fourteen years old. (Id. at 206.) To convict Shar of Level 4 felony child molesting, the State had to prove Shar "did perform or submit to fondling or touching with [A.S.], a child who was then under fourteen (14) years of age, with the intent of arousing or satisfying the sexual desires of" A.S. or Shar. (Appellant's App. Vol. 2 at 208.) See also Ind. Code § 35-42-4-3(b) (defining Level 4 felony child molesting).
[¶15] A.S. testified that, when she was alone with Shar in his apartment after school, Shar would undress her, touch her breasts and vagina, lick her vagina, and put his penis in her vagina. A.S. testified that Shar committed these acts "many times[.]" (Tr. Vol. 1 at 125.) A.S. was between the ages of eight and ten when Shar took her to his house after school, and Shar had to be over twenty-one years of age because he had a seventeen-year-old daughter. That daughter, Yusof, testified that both she and Shar babysat for A.S., that she sometimes did not return home from school until 7:00 or 8:00 p.m. due to after-school activities, that A.S. would be there when she got home, and that she once found A.S. and Shar on Shar's bed. Their testimony is sufficient to support Shar's convictions of all three counts of child molesting as alleged. See, e.g., Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App 2012) (holding testimony of child, which was not incredibly dubious, supported conviction of child molesting), reh'g denied, trans. denied.
[¶16] Shar alleges A.S.'s testimony cannot support his convictions because her testimony was so incredible that no reasonable juror could have believed it. Indiana law "allows an appellate court to impinge upon the fact-finder's assessment of witness credibility when the testimony at trial was so 'unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.'" Carter v. State, 44 N.E.3d 47, 52 (Ind.Ct.App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015)). This standard, called incredible dubiosity, is a difficult standard to meet, and we will not interfere with the fact-finder's role unless the testimony runs counter to human experience. Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). Three requirements must be met for the rule to apply: (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore, 27 N.E.3d at 756. Cases in which the rule applies will be "exceptionally rare[.]" McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018).
[¶17] To support his assertion that A.S.'s testimony was not credible, Shar points to two instances in which the testimony of A.S contradicted the testimony of Yusof. However, contradictions between witnesses are not relevant to whether a witness's testimony was incredibly dubious. See Reynolds v. State, 142 N.E.3d 928, 943 (Ind.Ct.App. 2020) ("the incredible dubiosity analysis focuses on contradictions within a witness's testimony, not in the context of other evidence"), trans. denied. Shar has not pointed to any example of contradictions within A.S.'s testimony, and we thus reject his assertion that her testimony was incredibly dubious. See, e.g., Young, 973 N.E.2d at 1227 (holding child's testimony was not incredibly dubious).
The two disagreements between their testimonies were about whether Shar met A.S. after school at the school or at her house and about the precise locations of A.S. and Shar when Yusof found them on the bed together. Neither of those factual disagreements is relevant to the elements of the charges against Shar. See, e.g., Edwards, 753 N.E.2d at 623 (discrepancy between witnesses about the color of a car did not prohibit the jury from accepting a witness's testimony about the "essential elements" of the crime).
[¶18] Shar also complains about the State not providing any "physical evidence" to support his convictions. (Appellant's Br. at 30.) He notes the hospital could not collect DNA evidence from A.S. because more than five days had passed since the last reported molesting and the State did not conduct a search of his residence. However, the absence of those kinds of evidence cannot render the evidence insufficient to support his convictions when the testimony of a child victim is sufficient to support a conviction of child molesting. See Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992) ("Convictions for child molesting may rest upon the uncorroborated testimony of the victim.").
[¶19] Finally, Shar attempts to undermine the evidence supporting his conviction by suggesting that "[Yusof]'s testimony should be disregarded." (Appellant's Br. at 32.) In support, Shar notes that Yusof did not get along with Shar, which prompted Yusof to move out of Shar's residence when she turned eighteen, and that Yusof was friendly with A.S. Shar is again asking that we reassess the credibility of a witness, which we cannot do on appeal. See Teising, 226 N.E.3d at 783 (questions about credibility of witnesses left to fact-finder). The jury saw Yusof testify and could determine her credibility, along with what weight, if any, to give to her testimony.
[¶20] None of Shar's arguments invalidate the evidence that supports his convictions. We therefore hold the State's evidence was sufficient to convict Shar of the three counts of child molesting charged by the State. See, e.g., Young, 973 N.E.2d at 1227 (testimony of child, which was not incredibly dubious, supported conviction of child molesting)
3. Right of Allocution
[¶21] Shar asserts fundamental error occurred because he was denied his right of allocution. Allocution is "'in the nature of closing argument where the defendant is given the opportunity to speak for himself or herself' to the trial court before the court pronounces the sentence." Strack v. State, 186 N.E.3d 99, 102 (Ind. 2022) (quoting Biddinger v. State, 868 N.E.2d 407, 413 (Ind. 2007)). By providing the defendant an "opportunity to explain his view of the facts and circumstances[,]" we ensure the trial court considers all of the facts and circumstances relevant to sentencing. Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996). The right has been codified by our legislature:
When the defendant appears for sentencing, the court shall inform the defendant of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in the defendant's own behalf and, before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.Ind. Code § 35-38-1-5. "The statute requires the trial court judge to inquire directly of the defendant whether he wishes to make a statement on his own behalf." Ross, 676 N.E.2d at 343.
[¶22] Shar acknowledges that he did not object at sentencing on the basis that he was not afforded his right of allocution and that he therefore must demonstrate fundamental error to obtain relief on this basis. Fundamental errors are those that make a fair trial impossible or blatantly violate due process in undeniably prejudicial ways. Strack, 186 N.E.3d at 103. The "heavy burden" of demonstrating fundamental error on appeal rests on the appellant, as does the "strong burden" to establish a denial of the right of allocution. Id.
[¶23] Shar cannot meet his burden given the transcript's clear demonstration that the trial court afforded Shar his right of allocution. After sentencing arguments by Shar's counsel and the prosecutor, the following dialogue occurred:
THE COURT: Mr. Shar, you have the right to speak. Is there anything that you want to say?
THE DEFENDANT: Where is the witness or evidence? The one I used (inaudible). Where is the evidence?
THE COURT: We're not here for trial, sir. We already had that, and the jury convicted you. Is there anything you want to say about sentencing?
THE DEFENDANT: I didn't do anything wrong. That's why like the judge like consider to be fair on the sentencing, please.(Tr. Vol. 2 at 108-9) (errors in original). The court then proceeded with imposition of the sentence before formally concluding the proceedings. As Shar was afforded his right of allocution, he cannot demonstrate fundamental error. See, e.g., Pattison v. State, 54 N.E.3d 361, 369 (Ind. 2016) ("we see no error, let alone error so fundamental as to preclude a fair trial").
In his reply brief argument regarding his right of allocution, Shar asserts: "Shar stressed to the court that his attorney was not adequately representing him and that he did not even know what portion of the trial they were in. The court did not inquire into this, constituting fundamental error." (Id.) As Shar was afforded his right of allocution just before the court pronounced sentence, we fail to see the relevance of the discussion that occurred earlier in the sentencing hearing to his argument regarding the alleged denial of the right of allocution. To the extent Shar is attempting to assert a new ground for fundamental error in his reply brief, that argument is waived. See Newcomb v. State, 194 N.E.3d 131, 142 (Ind.Ct.App. 2022) ("Grounds for error are to be framed in an appellant's initial brief; if those grounds are addressed for the first time in the reply brief, they are waived."), trans. denied.
4. Sentence Imposed
[¶24] Shar presents a number of arguments regarding his sentence. He initially indicates he is only challenging his sentence as "inappropriate in light of the nature of the offense and Shar's character." (Appellant's Br. at 20.) However, Shar then adds arguments that the trial court abused its discretion by failing to find mitigators and by ordering the sentences served consecutively.
[¶25] The trial court found an aggravator in Shar's position of trust as A.S.'s caretaker, and it found a mitigator in Shar's lack of criminal history. The court imposed an advisory thirty-year sentence for each of Shar's two Level 1 felony convictions. See Ind. Code § 35-50-2-4 (setting sentencing range for Level 1 felony as twenty to fifty years, with advisory of thirty years). The trial court also imposed the advisory sentence of six years for Shar's Level 4 felony conviction. See Ind. Code § 35-50-2-5.5 (setting sentencing range of two to twelve years, with advisory of 6 years, for a Level 4 felony). The court ordered those three sentences served consecutively for a cumulative sentence of sixty-six years.
4.1 Abuse of Discretion
[¶26] Sentencing decisions '"rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion."' McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007)). An abuse of discretion occurs if the trial court's decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Lewis v. State, 31 N.E.3d 539, 541-42 (Ind.Ct.App. 2015).
4.1.1 Finding of Mitigators
[¶27] When a trial court imposes a felony sentence, it is required to issue a sentencing statement "that includes a reasonably detailed recitation of the trial court's reasons for the sentence imposed." Anglemyer v. State, 868 N.E.2d at 484-85. If the court finds aggravating or mitigating circumstances, "the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating." Id. at 490. We review "the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors." Baumholser v. State, 62 N.E.3d 411, 416-17 (Ind.Ct.App. 2016) (citing Anglemyer, 868 N.E.2d at 490-91), trans. denied.
[¶28] When reviewing the aggravating and mitigating circumstances relied on by the trial court, we will remand only if "the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law." Id. The court "is neither obligated to accept the defendant's arguments as to what constitutes a mitigating factor nor required to give the same weight to a proposed mitigating factor as does the defendant." Hunter v. State, 72 N.E.3d 928, 935 (Ind.Ct.App. 2017). On appeal, the defendant must "establish that the mitigating evidence is both significant and clearly supported by the record." Id.
[¶29] Shar asserts:
The trial court here only found that Shar had no prior criminal or juvenile history.... However, the trial court did not consider any of the other statutory mitigators. If it had, it would have found that Shar would respond affirmatively to probation or short-term imprisonment and he is unlikely to commit another crime.(Appellant's Br. at 22.) Contrary to Shar's assertion, "the trial court does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing." Anglemyer, 868 N.E.2d at 492. Trial courts simply are not obliged to sua sponte consider every possible mitigator listed in Indiana Code section 35-38-1-7.1. Because Shar did not - at the sentencing hearing - advance for consideration the two mitigators he now advances, he cannot claim the trial court abused its discretion by failing to find those factors as mitigators. See Anglemyer, 868 N.E.2d at 492. ("The remaining alleged mitigating circumstances are precluded from review.").
4.1.2 Ordering Consecutive Sentences
[¶30] Shar argues the trial court abused its discretion by ordering consecutive sentences "because the trial court did not consider all applicable mitigators, and because those mitigators are either in balance or outweigh the single aggravator[.]" (Appellant's Br. at 25) (italics in original). However, as we explained above, the trial court considered all the mitigating factors advanced for consideration at sentencing, and thus there are no other applicable mitigators for us to consider as we determine whether the trial court abused its discretion by ordering consecutive sentences.
[¶31] The trial court ordered consecutive sentences after finding Shar's lack of criminal history as a mitigator and his violation of a position of trust as an aggravator. "A single aggravating circumstance may be sufficient to support the imposition of consecutive sentences[,]" Gober v. State,163 N.E.3d 347, 353 (Ind.Ct.App. 2021), trans. denied, and we find the aggravator here appropriate to support the consecutive sentences as Shar repeatedly violated the position of trust over a two-year period, even after being confronted by his daughter and assuring her that he would no longer bring A.S. to his home. "The basis for the gross impact that consecutive sentences may have is the moral principle that each separate and distinct criminal act deserves a separately experienced punishment." Powell v. State, 895 N.E.2d 1259, 1263 (Ind.Ct.App. 2008), trans. denied. Because Shar committed multiple acts of molestation against A.S. on "many" occasions, (Tr. Vol. 1 at 125), we cannot say the court abused its discretion by ordering his sentences served consecutively. See Powell, 895 N.E.2d at 1263 (holding trial court did not abuse its discretion by ordering consecutive sentences for separate instances of molesting the same child).
4.2 Inappropriateness of Sentence
[¶32] Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence "if, after due consideration of the trial court's decision, [we] find that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Our determination "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating his sentence [is] inappropriate.George v. State, 141 N.E.3d 68, 73-74 (Ind.Ct.App. 2020) (internal citations omitted), trans. denied. Our review is "holistic" and takes into consideration "the whole picture before us." Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024). Appellants need not prove their sentence is inappropriate for both their character and offense, but "to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id.
[¶33] "Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense." Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). As our Indiana Supreme Court has explained, "compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality)" may lead to a downward revision of the defendant's sentence. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). "When considering the nature of the offense, we first look to the advisory sentence for the crime." McHenry v. State, 152 N.E.3d 41, 46 (Ind.Ct.App. 2020). Herein, the trial court imposed the advisory sentence for each of Shar's convictions, and then the court ordered the three sentences served consecutively. We cannot say that decision was inappropriate for Shar's offenses. Shar repeatedly molested A.S. when she was between the ages of eight and ten years old by fondling her, placing his mouth on her vagina, and having sexual intercourse with her. Shar's abuse resulted in A.S. struggling to trust others and to value herself.
[¶34] "When considering the character of the offender, one relevant fact is the defendant's criminal history." Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). While Shar has no criminal history, we do not find ourselves "overcome by compelling evidence portraying in a positive light . . . the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Oberhansley v. State, 208 N.E.3d 1261, 1271 (Ind. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)). For about two years, Shar abused the position of trust that he was given by A.S.'s father. He denied molesting A.S. when confronted by his daughter, who found Shar and A.S. on Shar's bed. He continued molesting A.S. after assuring his daughter that he would no longer allow A.S. to come to their house. We cannot say a sixty-six-year sentence is inappropriate for Shar's offenses and character. See, e.g., Powell, 895 N.E.2d at 1263 (holding forty-three-year sentence not inappropriate for two counts of child molesting against single victim).
5. Status as Credit-Restricted Felon
[¶35] Shar next argues the trial court erroneously labeled him a credit-restricted felon. A person convicted of child molesting or murder may qualify to be designated a "credit restricted felon." See Ind. Code § 35-31.5-2-72. "A defendant's status as a credit-restricted felon is relevant to the defendant's initial assignment to a credit-time class, which, in turn, affects the defendant's accrual of credit time toward [a] sentence." Neal v. State, 65 N.E.3d 1139, 1141 (Ind.Ct.App. 2016). The determination whether a person is a credit restricted felon is made by the trial court at sentencing, Ind. Code § 35-38-1-7.8(a), and must be based on evidence admitted at trial, introduced at sentencing, or provided as the factual basis for a plea. Ind. Code § 35-38-1-7.8(b). As relevant to Shar, a credit restricted felon is a person who, while over age twenty-one years, committed child molesting involving sexual intercourse or other sexual conduct against a person less than twelve years old. Ind. Code § 35-31.5-2-72(1).
[¶36] Shar first argues he cannot be designated a credit restricted felon because the trial court "never made a determination of this at sentencing." (Appellant's Br. at 26.) At sentencing, the State argued:
And Your Honor, the jury did find that the victim was under twelve years old at the time of the offense. So, we are asking that the Court make a determination that the defendant is considered a credit restricted felon for Counts I and II, and that is pursuant to Indiana Code 35-31.5-2-72. And that statute states that a
credit restricted felon means any person who has been convicted of at least one of the following offenses: The first being child molesting involving sexual intercourse, and also child molesting involving other sexual conduct committed by a person at least twenty-one years of age and the victim was under twelve.(Tr. Vol. 2 at 108.) In imposing the sentence, the trial court said, in necessary part: "On Count I, I'll sentence you to 30 years in the Department of Corrections. [sic] Count II is 30 years. Those are both credit restricted." (Id. at 109.) Thus, contrary to Shar's assertion, the court explicitly determined that he is a credit restricted felon.
[¶37] Shar next argues the trial court failed "to properly advise him of the consequences" of being a credit restricted felon. (Appellant's Br. at 27.) Indiana Code section 35-38-1-7.8(c) provides: "Upon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination." Shar is correct that statute mandates the trial court advise the defendant of the consequences of being a credit-restricted felon. See Neal, 65 N.E.3d at 1141 ("compliance with Section 7.8(c) is not discretionary"). In Neal, we explained that no particular language had to be used to satisfy that advisement requirement, as long as the trial court explained that the status impacted the calculation of credit time. Id. at 1142. Herein, the court's simple statement - "Those are both credit restricted" - was inadequate to meet the advisory requirement of section 35-38-1-7.8(c). Cf. Neal, 65 N.E.3d at 1142 (holding advisement was sufficient where court said, amongst other things, "she is a credit-restricted felon and should be treated as such for good-time credit").
[¶38] The question becomes, then, what relief is due to Shar based on the trial court's inadequate advisement. Shar suggests we should overturn his designation as a credit restricted felon, but this would be an extreme remedy in light of the evidence clearly demonstrating Shar's crimes qualify him for credit-restricted-felon status. The State argues we should hold the trial court's error is "harmless" because the credit-restricted felon finding was itself proper. (State's Br. at 30.)
[¶39] As neither the statute nor caselaw appears to have addressed the proper remedy for a court's failure to advise as mandated by section 35-31-1-7.8(c), we look to caselaw regarding other sections of Indiana Code chapter 35-38-1 that have a similar requirement for the court to advise a convicted person during sentencing. See, e.g., Ind. Code § 35-38-1-7.7(c) (requiring court to advise defendant of consequences of determination that person committed a crime of domestic violence), Ind. Code § 35-38-1-1 (requiring court to advise defendant of the number of days of pretrial and presentencing confinement). Prior to 2017, Indiana Code section 35-38-1-1 contained a subsection that required the court to advise the sentenced person of "the earliest release date and . . . the maximum possible release date." Ind. Code § 35-38-1-1(b) (2003) (removed from statute by P.L. 50-2017, Sec. 2); see also Simons v. State, 54 N.E.3d 445, 447 (Ind.Ct.App. 2016) (use of "shall" in I.C. 35-38-1-1 made advisement "statutorily required"). Nevertheless, when an appellant in "no way allege[d] that he was prejudiced or harmed by the trial court's failure" to provide the advisement, the trial court's mistake was held to be harmless error for which relief was unavailable. Hines v. State, 856 N.E.2d 1275, 1284 (Ind.Ct.App. 2006) (citing Ind.App. Rule 66(A)), trans. denied. See also Simons, 54 N.E.3d at 447 (holding failure to advise of minimum and maximum release dates was harmless error). Given the analogous circumstances in which we find ourselves - the trial court failed to provide Shar with the statutorily-mandated advisement, but there are no grounds to suggest his crimes did not qualify him for that status - we follow the lead of Hines and Simons and hold the trial court's failure to so advise Shar was harmless error. See Hines, 856 N.E.2d at 1284 (citing App. R. 66(A) as support for holding failure to advise as mandated by statute was harmless error).
Conclusion
[¶40] Shar's allegations about the inadequacy of his interpreters were waived and are unable to be addressed on the merits without additional evidence that is unavailable on the direct appeal. The evidence was sufficient to support Shar's convictions, and he was afforded his right of allocution. Shar's sentence was neither an abuse of discretion nor inappropriate. Finally, the error that occurred when the trial court failed to explain the implications of Shar's status as a credit-restricted felon was harmless. Because none of Shar's arguments prompt reversal or modification of his sentence, we affirm the trial court's judgment.
[¶41] Affirmed.
Vaidik, J., and Kenworthy, J., concur.