A panel of Indiana Court of Appeals judges ruled on an issue that has generated a split of opinion among them: whether a fully executed sentence is equivalent to a sentence of equal length but partially suspended to probation for purposes of review under Appellate Rule 7(B).

In Christopher Jenkins v. State of Indiana, No. 49A05-0812-CR-711, the appellate court unanimously disagreed with its colleagues who concluded that the two sentences are equivalent for purposes of an appropriateness challenge. Christopher Jenkins was sentenced to eight years, with six suspended and only two of those suspended to probation for Class C felony possession of cocaine and Class D felony methamphetamine.

He argued his sentence was inappropriate in light of the nature of his offenses and his character, and that his sentence must be treated as a "maximum" sentence for purposes of App. R. 7(B).

Most defendants would gladly accept a partially suspended sentence over a fully executed one of equal length, wrote Judge Cale Bradford. Even though the imposition of a suspended sentence leaves open the possibility that a person will be incarcerated for some period before being released from his or her penal obligation, whether or not the suspended time is eventually served depends on the actions of the defendant.

"In a sense, an eight-year sentence with two years executed and two years suspended to probation is a two-year sentence with an option for two more, the exercise of which option is entirely up to the defendant," he wrote. "In the end, we believe all would agree that, all else being equal, a two-year executed sentence is less harsh than an eight-year executed sentence. It is just as clear that an eight-year sentence with six years suspended, two of those to probation, lies somewhere in between, and we treat it as such for purposes of Rule 7(B) review."

Although the appellate court wasn't aware of any Indiana Supreme Court cases directly on this point, it used Hole v. State, 851 N.E.2d 302, 304, (Ind. 2006), Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005), and Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002), to support its view.

The Court of Appeals affirmed Jenkins' convictions and sentence, but reversed the order he pay $55 in restitution to the police officer whose uniform was torn while chasing Jenkins after he fled during a traffic stop.