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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.