ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Leeman                                              Curtis T. Hill, Jr.
Leeman Law Office and                                       Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                         Tyler G. Banks
                                                            Deputy Attorney General
Andrew Achey                                                Indianapolis, Indiana
Logansport, Indiana
______________________________________________________________________________


                                  In the                                              FILED
                          Indiana Supreme Court                                  Jul 21 2017, 3:39 pm

                                                                                      CLERK
                              _________________________________                  Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court

                                     No. 09S02-1707-CR-491

RODNEY J. MCGUIRE,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                        Appellee (Plaintiff below).
                              _________________________________

                      Appeal from the Cass Circuit Court, No. 09C01-1502-FA-1
                                 The Honorable Leo T. Burns, Judge
                               _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 09A02-1605-CR-1148
                            _________________________________

                                           July 21, 2017

Per Curiam.

        Rodney McGuire and his girlfriend had a long-term relationship which ended around 2013.

In 2015, the girlfriend’s son, B.P., reported that McGuire had molested him repeatedly over the

course of several years, beginning when B.P. was eight or nine years old. The State charged

McGuire with six counts of Class A felony child molesting. In exchange for dismissal of five

counts, McGuire pleaded guilty to one count of Class A felony child molesting. During the plea

hearing and at sentencing, the State, defense counsel, and the trial court expressed agreement that
the statutory sentencing range for McGuire’s crime was thirty to fifty years. The trial court

sentenced McGuire to forty years executed in the Department of Correction. McGuire appealed,

contending the trial court’s sentence was based on a mistaken understanding of the minimum

sentence. Indeed, the parties now agree the statutory sentencing range for McGuire’s crime was

twenty to fifty years, with an advisory sentence of thirty years. See Ind. Code § 35-50-2-4 (2012).

        The Court of Appeals affirmed McGuire’s forty-year sentence. McGuire v. State, No.

09A02-1605-CR-1148, 2017 WL 677734 (Ind. Ct. App. Feb. 21, 2017), reh’g denied. Though the

parties did not cite a statute for the assumption that thirty years was the minimum sentence, the

Court of Appeals presumed they relied on Indiana Code section 35-50-2-2(i).1 That statute

permitted the trial court to suspend only the portion of McGuire’s sentence exceeding thirty years,

because McGuire was over age twenty-one and B.P. was under age twelve at the time of the crime.

Because the trial court imposed an enhanced sentence of forty years, the Court of Appeals

concluded it could “‘say with confidence that the trial court would have imposed the same

sentence’ had it properly considered the facts and law applicable to the case.” McGuire, 2017 WL

677732, *3 (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.), clarified on reh’g, 875

N.E.2d 218 (Ind. 2007)). McGuire seeks transfer, asking this Court to remand his case for

resentencing.

        The Court of Appeals is correct that Indiana Code section 35-50-2-2(i) allowed the trial

court to suspend any portion of McGuire’s sentence exceeding thirty years. But the statute did not

change the minimum sentence from twenty to thirty years. See Miller v. State, 943 N.E.2d 348,

349 (Ind. 2011). We agree with McGuire that remand is appropriate.




1
 As the Court of Appeals noted, this portion of the statute was not included in a later recodification.
McGuire, 2017 WL 677734, at *2, n.3.
                                                     2
       Accordingly, we grant transfer and remand the case to the trial court for resentencing

consistent with this opinion. We summarily affirm the Court of Appeals’ opinion in all other

respects. See Appellate Rule 58(A)(2).


Rush, C.J., and David and Slaughter, JJ., concur.
Massa, J., dissents with separate opinion.




                                                3
Massa, J., dissenting.

       The Court of Appeals, in its memorandum decision denying relief, concluded it could “‘say

with confidence that the trial court would have imposed the same sentence’ had it properly

considered the facts and law applicable to the case.” McGuire v. State, No. 09A02-1605-CR-1148,

2017 WL 677734, at *3 (Ind. Ct. App. Feb. 21, 2017), reh’g denied (quoting Anglemyer v. State,

868 N.E.2d 482, 491 (Ind.), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). I concur completely

with that assessment and thus cannot join in ordering an unnecessary remand.




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