ILNews

‘Term of imprisonment’ is the total time a misdemeanant is incarcerated

Back to TopCommentsE-mailPrintBookmark and Share

Deciding an issue that has led to confusion in the courts, the Indiana Supreme Court ruled that time suspended is not included under "term of imprisonment" as used in the Indiana misdemeanor sentencing statute.



Joey Jennings appealed his sentence for Class B misdemeanor vandalism – 30 days executed, 150 days suspended and 360 days of probation. He argued that the sentence is illegal under Indiana Code 35-50-3-1(b), which says, “whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.”

The Court of Appeals ordered he be sentenced to a period of probation of no more than 185 days because “term of imprisonment” must also include suspended time.

The justices clarified their ruling in Smith v. State, 621 N.E.2d 325, 326 (Ind. 1993), that a combined term of probation and imprisonment may not exceed one year, notwithstanding the maximum term of imprisonment for the misdemeanor. They also decided that “term of imprisonment” for purposes of misdemeanor sentencing, doesn’t include suspended time.

Justice Mark Massa authored the 10-page opinion, Joey Jennings v. State of Indiana, 53S01-1209-CR-526, in which he wrote, ““The statutory language singles out each level of misdemeanor — A, B, and C — and says a court may suspend the sentences for each of those ‘in whole or in part’ and then place the misdemeanant on probation for up to one year. This clearly and unambiguously shows the legislature, by ‘term of imprisonment,’ meant only that time during which a misdemeanant is incarcerated.”

Under Jennings’ interpretation, only Class B or C misdemeanants could have a portion of their maximum statutory sentence suspended and still serve probation, but a Class A misdemeanant could never be sentenced to the statutory maximum of one year and have a portion of the sentence suspended subject to probation.

The opinion also looked at Smith and how the Court of Appeals has ruled on this issue since.

“Further, regardless of the maximum sentence available under Indiana Code §§ 35-50-3-2, 35-50-3-3, and 35-50-3-4, the combined term of imprisonment and probation for a misdemeanor may not exceed one year. We therefore remand this case to the trial court for imposition of a probationary period consistent with this opinion, not to exceed 335 days—the difference between one year (365 days) and the 30 days Jennings was ordered to serve in prison,” the court held.

In a companion case, Kathleen Peterink v. State of Indiana, 57S03-1302-CR-136, the justices affirmed Kathleen Peternik’s sentence – one year in prison, suspended entirely, and probation for one year, six moths of which was to be served on home detention – which the Court of Appeals had reversed based on its decision in Jennings.

The justices also affirmed the Court of Appeals’ order that the sentencing order be amended to allow for credit time for her home detention.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

ADVERTISEMENT