MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 20 2016, 8:37 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Corey Brown, April 20, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1509-CR-1379
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff Trial Court Cause No.
49G08-1507-CM-25404
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016 Page 1 of 4
[1] Corey Brown asserts the trial court imposed an illegal sentence following his
conviction of Class B misdemeanor battery by bodily waste, 1 and the State
agrees. 2 We reverse and remand with instructions.
Facts and Procedural History
[2] On July 19, 2015, Brown spat in the face of another customer at a gas station.
He was arrested, and the State charged him with Class B misdemeanor battery
by bodily waste. The trial court found him guilty and imposed the following
sentence: 180 days in the Marion County Jail, with 32 days served, 32 days of
good time credit earned, 116 days suspended, and 365 days of supervised
probation.
Discussion and Decision
[3] “[S]entencing decisions rest within the sound discretion of the trial court.”
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), decision clarified on reh’g, 875
N.E.2d 218 (Ind. 2007). Thus, we review on appeal only for an abuse of that
broad discretion. Id. One of the ways a trial court may abuse its discretion is
by imposing a sentence that is “improper as a matter of law.” Id. at 491.
1
Ind. Code § 35-42-2-1(b)(2) (2014).
2
The State concedes Brown’s sentence exceeds the statutorily-permitted maximum, but nevertheless asserts
the court “acted within its discretion in sentencing” Brown. (Br. of Appellee at 6.) As a matter of law and of
logic, this is not possible, because “a trial court’s misunderstanding of the law constitutes an abuse of
discretion.” Russell v. State, 34 N.E.3d 1223, 1228 (Ind. 2015).
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[4] Our legislature determined the sentence for a Class B misdemeanor shall be a
“fixed term of not more than one hundred eighty (180) days.” Ind. Code § 35-
50-3-3. In addition, our legislature made it possible for trial courts to suspend
sentences for misdemeanors, Ind. Code § 35-50-3-1(a), and provided that when
so suspending, the court could impose a term of probation:
[W]henever 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 I.C. 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.
Ind. Code § 35-50-3-1(b) (2015).
[5] Our Indiana Supreme Court explained the proper application of that statute in
Jennings v. State, 982 N.E.2d 1003 (Ind. 2013). Following his conviction of a
Class B misdemeanor, Jennings received a sentence of 180 days, with 30 days
executed, 150 days suspended, and 360 days on probation. Id. at 1004. Our
Supreme Court held “a combined term of probation and imprisonment may not
exceed one year, notwithstanding the maximum term of imprisonment for the
misdemeanor. We further hold that ‘term of imprisonment,’ for purposes of
misdemeanor sentencing, does not include suspended time.” Id. at 1005.
Based thereon, our Supreme Court remanded for the trial court to impose a
probation period “not to exceed 335 days—the difference between one year
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(365 days) and the 30 days Jennings was ordered to serve in prison.” Id. at
1009.
[6] Brown received a sentence of 64 days served plus 365 days on probation.
Because the combined term of Brown’s sentence is more than 365 days, the
sentence violated Indiana Code § 35-50-3-1(b). See Jennings, 982 N.E.2d at
1009. We reverse his sentence and remand for imposition of probation not
greater than 301 days—the difference between 365 days and the 64 days for
which Brown has credit based on his incarceration. See id.
[7] Reversed and remanded.
Baker, J., and Brown, J., concur.
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