971 N.E.2d 735
Ind. Ct. App.
2012

Lead Opinion

OPINION

FRIEDLANDER, Judge.

Kathleen Peterink pleaded guilty to Possession of Marijuana1 аs a class A misdemeanor and was subsequently sentenced to one year imprisonment suspended to probation, which was to include six months on home detention. Peterink challenges the sentenсe imposed, presenting two issues for our review:

1. Is the sentence imposed contrary to Ind.Code Ann. § 35-50-3-1 (West, Westlaw current through legislation effective May 31, 2012)?
2. Is a defendant serving time on home detentiоn as part of probation entitled to good time credit?

We reverse and remand.

A probation search of Peterink’s home in July 2010 turned up marijuana in an amount less than thirty grams. As a result of the discovery, Peterink was charged with Cоunt I, possession of cocaine or narcotic drug as a class D felony, and Count II, possession of marijuana as a class A misdemeanor. On September 6, 2011, Pet-erink pleaded guilty to Count II and the State dismissed Count I. On November 1, 2011, the trial court sentenced Peterink as follows: “The Defendant shall be imprisoned in the Noble County Jail for a period of 1 year, all of which is suspended. The suspended рortion of the Defendant’s sentence shall be served on probation under the terms attached hereto and made a part hereof.” Appellant’s Appendix at 42. A special condition of probation wаs that Pet-erink serve six months of home detention for which she was to receive “no good time credit.” Id. at 45.

On November 23, 2011, Peterink’s trial counsel filed a Motion to Correct Errors challenging the sentencе imposed. The trial court held a hearing on the motion on December 16, 2011, at the conclusion of which the court denied the motion. Peter-ink now appeals.

1.

Peterink argues that the trial court erred by sentencing her in excess of the statutory maximum. Peterink pleaded guilty to a class A misdemeanor for which the maximum sentence is not to exceed one year. I.C. § 35-50-3-2 (West, West-law current through legislation effective May 31, 2012). During the sentencing hearing, the trial court pronounced the sentence as follows:

In the FD-246 case I will sentence the Defendant to one year ‍‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​‌​‌‌​​‌‌​‌‌​‌‍at the Noble County Jail, that will be all suspended, *737you shall serve one year on probation subject to the Court’s standard terms and conditions of probation including the requirement that she serves 6 months of that probation оn electronically monitored home detention.

Transcript at 45. According to Peterink, because the court sentenced her to one year (albeit that the sentence was suspended), the trial court violated I.C. § 35-50-3-2 when it sentenced her to an additional year of probation. Peterink cites this court’s decision in Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011), trans. pending, as support for her argument that the sentence imposed exceeds thе statutory maximum for a class A misdemeanor. The State does not challenge Peterink’s reliance upon Jennings, but rather asks that we revisit the issue addressed by the Jennings court with regard to misdemean- or sentencing.

Although a trial court may suspend any part of a sentence for a misdemeanor аnd “place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year ... the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.” I.C. § 35-50-3-l(b). As noted by the Jennings court, we have before held that for purposes of I.C. § 35-50-3-l(b), the “term of imprisonment” includes both the executed and suspended portions of a sentence. Jennings v. State, 956 N.E.2d at 206 (citing Collins v. State, 835 N.E.2d 1010 (Ind.Ct.App.2005)). Thus, as in Jennings, hеre, the trial court sentenced Peterink in excess of the statutory maximum (i.e., one year) when it sentenced her to a one-year suspended sentence and one year of probation. While we recognize that there is a split among the judges of this court regarding the interpretation of I.C. § 35-50-3-1, we decline the State’s request to revisit the Jennings decision. We therefore reverse the sentence imposed by the trial court and remand for resentencing.

2.

Although we have reversed the sentence imposed, we nevertheless address the second issue presented by Peterink to exрlain an additional error made by the trial court in sentencing Peterink. Peter-ink argues that the condition of her probation that her time on home detention was ordered to be without ‍‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​‌​‌‌​​‌‌​‌‌​‌‍good-time сredit contravenes statutory authority. Peterink maintains that I.C. §§ 35-50-6-6 and 35-38-2.5-5 (West, Westlaw current through legislation effective May 31, 2012), “when read together, logically lead to the conclusion that probationеrs on home detention may receive ‘good time credit.’” Appellant’s Brief at 7. The State agrees that Peterink is entitled to good-time credit.

I.C. § 35-50-6-6 provides, in pertinent part, “Except as set forth under IC 35-38-2.5.-5, a persоn does not earn credit time while on parole or probation.” Subsection (e) of I.C. § 35-38-2.5-5 provides, “A person confined on home detention as a condition of probation earns credit for time served.” We note that I.C. § 35-50-6-6 speaks in terms of credit time while I.C. § 35-38-2.5-5 provides that a person “earns credit” for time served on home detention. An ambiguity therefore exists as to whether I.C. § 35-38-2.5-5 permits a person confined on home detention as a condition of probation to earn “good-time credit.” “It is a cardinal rule of criminal justice, however, that penal statutes are to be striсtly construed against the State and that ambiguities therein are to be resolved in favor of the accused.” Pennington v. State, 426 N.E.2d 408, 410 (Ind.1981). Here, the State concedes that Peterink is entitled to good-time credit and we think а fair reading of the statutes taken together leads to that result. The trial court’s or*738der to the contrary is reversed. The trial court is instructed to amend its sentencing order to allow for credit time.

Judgment reversed and remanded for resentencing.

MAY, J., concurs. BARNES, J., concurs in part and dissents in part.

Notes

. Ind.Code Ann. § 35-48-4-11 (West, West-law current through legislation effective May 31, 2012).



Concurrence Opinion

BARNES, Judge,

concurring in part and dissenting in part.

I concur in part two of the majority opinion but respectfully dissent from part one. I do not agree with the holding in the Jennings case cited by the majority, at least to the extent it holds that for purposes of determining whether a misdemeanor sentence exceeds the one-year limitation found in Indiana Code Section 35-50-3-1 (b), a sentencе such as the one here that orders a term of one year suspended, to be served on probation, is actually the equivalent of a two-year sentence.

In Smith v. State, 621 N.E.2d 325 (Ind.1993), a trial court sentenced a misde-meanant to a term of 110 days executed to be followed by one year of probation. At ‍‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​‌​‌‌​​‌‌​‌‌​‌‍the time, Section 35-50-3-1(b) was unclear as to whether such a sentence was illegal, but our suprеme court held that it was. Id. at 326. The court held “that a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction of a misdemeanor.” Id. Seсtion 35—50—3—1(b) was amended in 2001 to, in my view, effectively codify Smith by adding the following language: “the combined term of imprisonment and probation for á misdemeanor may not exceed one (1) year.” I think that additional language clearly signaled the legislature’s intent.2

The Smith opinion also stated, “fundamental sentencing guidelines with respect to treatment of felonies likewise apply to misdemeanors.” Id. The court further agreed with Judge Barteau’s dissenting opinion from this court’s decision in Smith, wherein she observed, “ ‘[t]he trial court has the option, in sentencing a class A misdemeanant, to suspend the sentence in wholе or in part and to place the defendant on probation, so long as the combination of the executed sentence and the probationary period do not exceed the maximum statutory sentence for that offense.’ ” Id. (quoting Smith v. State, 610 N.E.2d 265, 272 (Ind.Ct.App.1993) (Barteau, J., dissenting)).

Given our supreme court’s agreement with what Judge Barteau said and considering that the same principles of sentencing apply to both feloniеs and misdemeanors, I do not believe that a sentence of one year suspended, to be served on probation, is equivalent to a two-year sentence. It would fundamentally disrupt the sentеncing practices of trial courts to say, for example, that a sentence for a Class B felony that consisted of fifteen total years, with ten suspended to be served on probation, was equivalent to a twenty-five year sentence, in excess of the statutory maximum for a Class B felony. See I.C. § 35-50-2-5. Certainly, no appellate case that has reviewed the propriety of a ‍‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​‌​‌‌​​‌‌​‌‌​‌‍defendant’s felony sentence, and there are a vast number of them, has ever reached *739such a conclusion.3 I also agree with the State’s contention that a suspended sentence without a probationary term аccompanying it lacks any “mechanism by which to secure good behavior: there would be no possibility of the suspended portion ever being executed, because there is no probаtion to govern conduct, or, if conduct is not in keeping with its terms, to be revoked.” Appellee’s Br. p. 7.

In sum, I would not follow the Jennings holding. As such, I believe the sentence here of one year suspended, to be served on probation, is legal.

. I should point out that I recently concurred in another case, Tumbleson v. State, No. 90A02-1107-CR-613, 2012 WL 172873 (Ind.Ct.App. Jan. 20, 2012), which the State also is seeking transfer on, along with Jennings. However, Tumbleson presented a straightforward violation of Smith, because the defendant was sentenced tо an executed term of six months, followed by one year of probation, resulting in a one-and-a-half year total sentence. Tumbleson, slip op. at 3. Moreover, the State conceded before this court that the trial court had erred in sentencing the dеfendant, in violation of Smith.

. When reviewing a sentence for appropriateness under Indiana Appellate Rule 7(B), an appellate court may consider all aspects of the penal consequences imposed by the trial court in sentencing the defendant, including whether a portion of the sentence was suspended and ordered to be served on probation. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010). Hоwever, I have never seen any indication that courts should consider a sentence suspended to probation as equaling twice ‍‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​‌​‌‌​​‌‌​‌‌​‌‍the length of the suspension. If anything, such a suspension is viewed as less punitive than an executed sentence of the same length. See Jenkins v. State, 909 N.E.2d 1080, 1084-85 (Ind.Ct.App.2009), trans. denied.
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