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. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT