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

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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.

 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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