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First impression in 'non-suspension' rule case

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The Indiana Court of Appeals determined in a case of first impression that the state's 'non-suspension rule' in Indiana Code depends on the status of the prior criminal conviction at the time of sentencing for a subsequent conviction. Because a woman's prior unrelated Class D felony conviction wasn't reduced to a Class A misdemeanor at the time she was sentenced for a later drug conviction, her 20-year sentence stands.

In Julie A. Gardiner v. State of Indiana, No. 08A02-0810-CR-874, Julie Gardner appealed her sentence for dealing in methamphetamine within 1,000 feet of a public park as a Class A felony. She argued the trial court erred when it determined Indiana Code Section 35-50-2-2(b)(1), the non-suspension rule, prohibited the court from suspending any portion of her statutory minimum 20-year sentence because she had a prior Class D felony conviction in Hamilton County that was later reduced to a Class A misdemeanor following a plea agreement and her successful completion of one year on probation.

No Indiana court had addressed the issue of whether a reduction of a prior conviction from a felony to a misdemeanor pursuant to a plea agreement affects the application of the non-suspension rule. Based on Hutcherson v. State, 411 N.E.2d 962 (Ind. 1982), only a reversal or vacation of a prior conviction could allow for Gardiner's dealing in methamphetamine sentence to be reduced under the non-suspension rule. If the Hamilton County trial court had immediately reduced her prior felony to the misdemeanor, then the trial court would have had the discretion to order a suspended sentence now, Judge Margret Robb wrote for the majority. However, since that court postponed the reduction, Gardiner still had the Class D felony conviction on her record when she was convicted and sentenced for Class A felony dealing in methamphetamine, and the trial court couldn't reduce her sentence beyond the statutory minimum.

The split court was sympathetic to the argument that the non-suspension rule under these circumstances doesn't take into account Gardiner's good behavior after she was sentenced and Judge Robb wrote the judges were frustrated by a sentencing scheme "that so illogically limits the judge's discretion." The majority invited the legislature to consider amending the statutes to provide more judicial discretion.

The majority noted this holding only applies when a defendant is initially convicted or pleads guilty and is sentenced to a Class D felony and the conviction is later modified; it does not apply when a defendant is found guilty of a Class D felony but the trial court enters a conviction for a Class A misdemeanor pursuant to I.C. 35-50-2-7(b).

Judge Elaine Brown dissented, writing she wouldn't give the non-suspension rule such a strict interpretation as to tie the trial court's hands in suspending a minimum sentence when circumstances warrant a modification.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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