982 N.E.2d 1009

Ind.

2013

Kathleen PETERINK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 57S03-1302-CR-136.

Supreme Court of Indiana.

Feb. 20, 2013.

981 N.E.2d 1009

Were we to adopt the approach that Jennings and amicus urge, the following would occur in the sentencing of Class A misdemeanants, as the State‘s brief succinctly outlines below:

First, a trial court [could] simply order 180 days executed and 185 days suspended. However, without a probationary term, there is no mechanism by which to secure good behavior: there would be no possibility of the suspended portion ever being executed, because there is no probation to govern conduct, or, if conduct is not in keeping with its terms, to be revoked. The suspended portion would be superfluous—an absurd result. As a practical matter, this option is no different than a sentence of 180 days executed and no further sanc-

Second, a trial court could order 180 days executed and 185 days of probation. However, without a suspended sentence, there is no incentive to secure or correct the misdemeanant‘s behavior, should he not fulfill the terms of probation. In both instances, the sentence results in “all carrot and no stick” and the probationary or suspended terms are toothless.

State‘s Trans. Pet. at 6. Taken together with the plain language of the statute and legislative intent, we find this argument well-stated and persuasive.

Conclusion

For the purpose of Indiana Code § 35-50-3-1, “term of imprisonment” means the total amount of time a misdemeanant is incarcerated. 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.

DICKSON, C.J., and RUCKER, DAVID, and RUSH, JJ., concur.

Jill M. Acklin, Westfield, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James Thomas Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MASSA, Justice.

Appellant Kathleen Peterink pleaded guilty to Possession of Marijuana as a Class A misdemeanor. The trial court sentenced her to one year imprisonment, suspended the sentence entirely, and placed her on probation for one year, six months of which was to be served on home detention.

Contrary to statutory authority,¹ the trial court also ordered that Peterink would not receive good time credit for her term of home detention. On appeal, the State conceded error and the Court of Appeals remanded with instructions to amend the sentencing order to allow for credit time. Peterink v. State, 971 N.E.2d 735, 737-38 (Ind.App.2012). Today, we grant transfer and summarily affirm that portion of the opinion below. Ind. Appellate Rule 58(A)(2).

However, the Court of Appeals also found error in the trial court‘s sentence of one year suspended with a year‘s probation, citing its past precedent in Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011), clarified on reh‘g, 962 N.E.2d 1260 (Ind.Ct.App.2012), trans. granted, 974 N.E.2d 1020 (table). Our decision today in Jennings v. State, No. 53S01-1209-CR-526, slip op. (Ind. February 20, 2013), dictates that the trial court be affirmed in this regard. We thus uphold the suspended sentence, with probation, but remand with instructions to allow for credit time for home detention.

DICKSON, C.J., and RUCKER, DAVID, and RUSH, JJ., concur.

Notes

Ind.Code §§ 35-38-2.5-5 (2008) and 35-50-6-6 (2008).