FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
FILED
Jul 27 2012, 9:29 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
KATHLEEN K. PETERINK, )
)
Appellant-Defendant, )
)
vs. ) No. 57A03-1112-CR-586
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE NOBLE SUPERIOR COURT
The Honorable Robert E. Kirsch, Judge
Cause No. 57D01-1008-FD-246
July 27, 2012
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Kathleen Peterink pleaded guilty to Possession of Marijuana1 as 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
sentence 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 detention 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 Count 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, Peterink 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 portion 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 was that Peterink
serve six months of home detention for which she was to receive “no good time credit.” Id.
at 45.
1
Ind. Code Ann. § 35-48-4-11 (West, Westlaw current through legislation effective May 31, 2012).
On November 23, 2011, Peterink’s trial counsel filed a Motion to Correct Errors
challenging the sentence imposed. The trial court held a hearing on the motion on December
16, 2011, at the conclusion of which the court denied the motion. Peterink 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, Westlaw 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, you 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 on 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 the 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 misdemeanor sentencing.
Although a trial court may suspend any part of a sentence for a misdemeanor and
“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
3
exceed one (1) year.” I.C. § 35-50-3-1(b). As noted by the Jennings court, we have before
held that for purposes of I.C. § 35-50-3-1(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, here, 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 explain an additional error made by the trial court in
sentencing Peterink. Peterink argues that the condition of her probation that her time on
home detention was ordered to be without good-time credit 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
probationers 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 person 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
4
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 strictly 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 a fair reading of the statutes taken together leads to that result. The
trial court’s order 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.
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IN THE
COURT OF APPEALS OF INDIANA
KATHLEEN K. PETERINK, )
)
Appellant-Defendant, )
)
vs. ) No. 57A03-1112-CR-586
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
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 sentence 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 misdemeanant
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 supreme court
held that it was. Id. at 326. The court held “that a combined term of probation and
6
imprisonment exceeding one year is inconsistent with the maximum term for conviction of a
misdemeanor.” Id. Section 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 a 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 whole 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 felonies 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 sentencing practices of trial courts to
say, for example, that a sentence for a Class B felony that consisted of fifteen total years,
2
I should point out that I recently concurred in another case, Tumbleson v. State, No. 90A02-1107-CR-613
(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 to 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 defendant, in violation of Smith.
7
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 such a conclusion.3 I also agree with the State’s
contention that a suspended sentence without a probationary term accompanying 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 probation 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.
3
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). However, 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.
8