The Indiana Court of Appeals relied on a case from the state’s highest court to rule on whether a term of imprisonment for the purposes of Indiana Code 35-50-3-1(b) includes both the executed and suspended portions of a sentence.

Joey Jennings challenged his conviction of Class B misdemeanor criminal mischief and the sentence imposed by the Monroe Circuit Court – 180 days in jail with 150 suspended and 360 days of probation. Jennings didn’t think the state presented sufficient evidence to prove he was the person who slashed Cody Pope’s tire and scratched his truck. He also believed he was sentenced in excess of the statutory maximum sentence of 180 days because his terms of imprisonment and probation exceeded one year. This is prohibited under I.C. 35-50-3-1-(b).

The appellate court affirmed Jennings’ conviction in Joey Jennings v. State of Indiana, No. 53A01-1010-CR-541, finding that even though the evidence was circumstantial, it was enough to convict him. Witnesses heard the sound of air, like air brakes going off, and then Jennings’ car drove off quickly.

Regarding his sentence, the judges agreed with Jennings. They discussed several cases, including Beck v. State, 790 N.E.2d 520, 523 (Ind. Ct. App. 2003), that have construed the phrase “term of imprisonment,” but could not be controlling authority. Instead, they relied on Mask v. State, 829 N.E.2d 932 (Ind. 2005), to find that Jennings’ sentence needed to be revised.  The justices reasoned that incarceration under I.C. 35-50-1-2(c) doesn’t mean the period of executed time alone, and there is always the possibility that someone could have their parole or probation revoked and returned to prison.

“In other words, the imposition of a suspended sentence leaves open the real possibility that an individual will be ‘sent to incarceration for some period’ before being released from any penal obligation,” the Mask court wrote.

“We conclude that Jennings’s term of imprisonment for the purposes of Indiana Code section 35-50-3-1(b) includes not only the thirty-day executed portion of his sentence, but also the 150-day suspended term. Thus, the trial court’s imposition of a 360-day term of probation in addition to Jennings’s 180-day term of imprisonment caused Jennings to serve more than one year of combined imprisonment and probation, in violation of Indiana Code section 35-50-3-1(b),” wrote Judge Paul Mathias. “We therefore remand this cause to the trial court for a redetermination of Jennings’s period of probation, not to exceed 185 days.”