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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Ah ha, so the architect of the ISC Commission to advance racial preferences and gender warfare, a commission that has no place at the inn for any suffering religious discrimination, see details http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 ..... this grand architect of that institutionalized 14th amendment violation just cannot bring himself to utter the word religious discrimination, now can he: "Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender." Thus barks the Shepard: "Race, gender, sexual orientation". But not religion, oh no, not that. YET CONSIDER ... http://www.pewforum.org/topics/restrictions-on-religion/ Of course the old dog's inability to see this post modern phenomena, but to instead myopically focus on the sexual orientation issues, again betrays one of his pet protects, see here http://www.in.gov/judiciary/admin/files/fair-pubs-summit-agenda.pdf Does such preference also reveal the mind of an anti-religious bigot? There can be no doubt that those on the front lines of the orientation battle often believe religion their enemy. That certainly could explain why the ISC kicked me in the face and down the proverbial crevice when I documented religious discrimination in its antechambers in 2009 .... years before the current turnover began that ended with a whole new court (hallelujah!) in 2017. Details on the kick to my face here http://www.wnd.com/2011/08/329933/ Friends and countrymen, harbor no doubt about it .... anti-religious bias is strong with this old dog, it is. One can only wonder what Hoosier WW2 hero and great jurist Justice Alfred Pivarnik would have made of all of this? Take this comment home for us, Gary Welsh (RIP): http://advanceindiana.blogspot.com/2005/05/sex-lies-and-supreme-court-justices.html

  2. my sister hit a horse that ran in the highway the horse belonged to an amish man she is now in a nurseing home for life. The family the horse belonged to has paid some but more needs to be paid she also has kids still at home...can we sue in the state f Indiana

  3. Or does the study merely wish they fade away? “It just hasn’t risen substantially in decades,” Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law told Law360. “What we should be looking for is progress, and that’s not what we’re seeing.” PROGRESS = less white males in leadership. Thus the heading and honest questions here ....

  4. One need not wonder why we are importing sex slaves into North America. Perhaps these hapless victims of human trafficking were being imported for a book of play with the Royal Order of Jesters? https://medium.com/@HeapingHelping/who-are-the-royal-order-of-jesters-55ffe6f6acea Indianapolis hosts these major pervs in a big way .... https://www.facebook.com/pages/The-Royal-Order-of-Jesters-National-Office/163360597025389 I wonder what affect they exert on Hoosier politics? And its judiciary? A very interesting program on their history and preferences here: https://www.youtube.com/watch?v=VtgBdUtw26c

  5. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

ADVERTISEMENT