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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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