ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael B. Troemel Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________ FILED
Apr 30 2010, 10:47 am
In the CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 08S02-0906-CR-277
JULIE GARDINER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Carroll Circuit Court, No. 08C01-0603-FA-10
The Honorable Donald E. Currie, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 08A02-0810-CR-874
_________________________________
April 30, 2010
Rucker, Justice.
In this case of first impression we conclude that a conviction for a Class D felony on
which judgment is later entered as a Class A misdemeanor does not prevent the trial court from
modifying a sentence below the statutory minimum on grounds that the defendant has a prior
unrelated felony conviction.
Facts and Procedural History
On February 10, 2005, the State charged Julie A. Gardiner in the Hamilton Superior
Court with Count I possession of two or more chemical reagents or precursors with intent to
manufacture a controlled substance, a Class D felony,1 and Count II possession of more than ten
(10) grams of chemical reagents or precursors, a Class D felony.2 Appellant’s App. at 32. After
a series of continuances, on March 2, 2007, Gardiner pleaded guilty under terms of an agreement
to the possession with intent to manufacture count. The trial court imposed a one-year sentence
that was suspended to probation for a year. Apparently the agreement provided that if Gardiner
successfully completed her probationary term, then the State would not object to a sentence
modification.3
Meanwhile, on March 9, 2006, the State charged Gardiner in the Carroll Circuit Court
with dealing in methamphetamine, as a Class A felony. After a jury trial Gardiner was found
guilty as charged. At a July 23, 2007 sentencing hearing, the trial court sentenced Gardiner to
thirty years imprisonment with ten years suspended to probation. The trial court noted that the
sentence could not be suspended below the statutory minimum of twenty years because Gardiner
had acquired a prior unrelated felony conviction.4
1
Ind. Code § 35-48-4-14.5(e).
2
Ind. Code § 35-48-4-14.5(b).
3
We say “apparently” because the plea agreement is not included in the record before us. However, a
CCS entry dated March 2, 2007, provides in relevant part, “Def. sentenced on Count I to: One (1) yr. in
IDOC, suspended. Def. shall be placed on probation for one (1) yr . . . . Upon successful completion of
probation, without violation, State would not object to a sentence modification.” Appellant’s App. at 35.
Also, the State concedes this point. See Br. of Appellee at 3.
4
Both the conviction and sentence were affirmed on appeal. See Gardiner v. State, No. 08A02-0708-CR-
739 (Ind. Ct. App. April 3, 2008).
2
Thereafter on November 15, 2007, Gardiner filed in the Hamilton Superior Court a
“Petition For Sentence Modification.” The trial court granted the petition on February 8, 2008.
Although neither the petition nor the trial court’s order is included in the record before us, a CCS
entry reads, “Defendant’s Motion to Modify Sentence granted. Defendant discharged from
probation. Conviction modified to Class A Misd.” Appellant’s App. at 36.
Armed with the Hamilton Superior Court order, Gardiner filed in the Carroll Circuit
Court her “Petition For Sentence Modification” which declared, among other things, that
Gardiner “is a good candidate for a sentence modification in that the defendant’s prior felony
conviction has been vacated and reduced to a class A misdemeanor.” Appellant’s App. at 20.
Following a hearing, and noting Gardiner’s conduct and accomplishments during incarceration,
the trial court modified Gardiner’s sentence from thirty years to twenty years. 5 However, the
trial court declined to modify the sentence further, observing that at the time of the original
sentence Gardiner had acquired a prior unrelated felony conviction. And, according to the trial
court, although the prior conviction has been altered and “judgment has now been entered as a
Class A misdemeanor” the court believed it was still bound by the restrictions and limitations
applicable at the time of the original sentence. Appellant’s App. at 98. The trial court also
declared that if it “had further discretion, this Court would be inclined to modify the sentence
herein by reducing the executed portion of Defendant’s sentence.” Id. Gardiner appealed, and
noting this is a case of first impression, a divided panel of the Court of Appeals affirmed the trial
court’s judgment. Gardiner v. State, 903 N.E.2d 552, 554 (Ind. Ct. App. 2009). Having
previously granted transfer we now remand this cause for further proceedings.
Standard of Review
Two standards govern our review. First, we review a trial court’s decision to modify a
sentence only for abuse of discretion. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999)
Second, we review de novo matters of statutory interpretation because they present pure
questions of law. R.J.G. v. State, 902 N.E.2d 804, 805-06 (Ind. 2009).
5
The trial court’s Abstract of Judgment notes, “Outdate from Indiana Department of Correction is
unchanged. Sentence modification only affects probation.” Appellant’s App. at 99.
3
Discussion
Indiana Code section 35-38-1-17 allows the trial court to “suspend a sentence for a felony
. . . only if suspension is permitted under IC 35-50-2-2.” In turn, Indiana Code section 35-50-2-2
provides that the trial court may suspend any part of a sentence for a felony, except as provided
by statute. The statutory exception at issue in this case concerns a sentence suspension below the
minimum term of years. In relevant part the statute provides, “the court may suspend only that
part of the sentence that is in excess of the minimum sentence” where “[t]he crime committed
was a Class A or Class B felony and the person has a prior unrelated felony conviction.” Ind.
Code § 35-50-2-2(b)(1) (emphasis added). The minimum sentence for a Class A felony is
twenty years. See Ind. Code § 35-50-2-4 (West Supp. 2009). Thus, if Gardiner has a prior
unrelated felony conviction then as a matter of clear statutory declaration her sentence for
dealing in methamphetamine as a Class A felony cannot be suspended below twenty years.
Therefore we examine what effect if any the Hamilton Superior Court order granting Gardiner’s
petition to modify had on the Carroll Circuit Court’s discretion to suspend Gardiner’s sentence
below the statutory minimum.
Gardiner cites authority for the proposition that in the habitual offender context, once one
of two underlying prior felony convictions has been vacated or otherwise set aside, a defendant’s
habitual offender status must be vacated or set aside as well. See, e.g., Coble v. State, 500
N.E.2d 1221, 1223 (Ind. 1986); Olinger v. State, 494 N.E.2d 310, 311 (Ind. 1986); State v. Jones,
819 N.E.2d 877, 881 (Ind. Ct. App. 2004), trans. denied. Gardiner argues the Class D felony
conviction which served as a predicate for the nonsuspendability of her sentence for the Class A
felony conviction has likewise been set aside and therefore she is now eligible for a further
sentence reduction. The State does not challenge the habitual offender analogy but counters,
“Defendant’s conviction has not been set aside, but merely reduced.” Br. of Appellee at 5.
We make two observations. First, our habitual offender jurisprudence provides little
guidance on the issue before us. Indiana Code section 35-50-2-8(a) provides that a defendant
may be sentenced as a habitual offender if she has accumulated two or more prior unrelated
felony convictions. The statute goes on to note, however, that a prior conviction does not
4
support a habitual offender determination if it has been set aside or if it is one for which the
defendant has been pardoned. Ind. Code § 35-50-2-8(d)(1)-(2). No such provision appears in
the non-suspension statute, Indiana Code section 35-50-2-2 (b)(1). Second, although the parties
agreed that the State would not object to a request for sentence modification, in point of fact
there was no sentence to modify. Gardiner had been sentenced to a one-year term – six months
more than the minimum sentence for a Class D felony, see Ind. Code § 35-50-2-7 – all of which
was suspended to probation which Gardiner apparently completed with success. Consequently,
as a practical matter what was before the Hamilton Superior Court was a request to modify
Gardiner’s conviction. The trial court apparently recognized this fact declaring “Conviction
modified to Class A Misd[emeanor].” Appellant’s App. at 36.
There are two statutory provisions under which a trial court may modify a conviction of a
Class D felony to a conviction for a Class A misdemeanor: Indiana Code section 35-50-2-7(b),
which provides in part, “if a person has committed a Class D felony, the court may enter
judgment of conviction of a Class A misdemeanor and sentence accordingly;” and Indiana Code
section 35-38-1-1.5, which provides in part, “A court may enter judgment of conviction as a
Class D felony with the express provision that the conviction will be converted to a conviction as
a Class A misdemeanor within three (3) years if the person fulfills certain conditions.” In this
case the trial court modified Gardiner’s Class D felony conviction to a Class A misdemeanor
conviction under provisions of a plea agreement. But regardless of the mechanism, the entry of
judgment of conviction upon the misdemeanor offense constitutes a new and different judgment
effectively vacating the prior judgment. As this Court has observed, the penal consequences of a
guilty finding are triggered only by the entry of a judgment of conviction. Carter v. State, 750
N.E.2d 778, 780-81 (Ind. 2001) (distinguishing between a guilty verdict and a judgment of
conviction). As noted earlier, the prohibition on a sentence suspension below the minimum is
premised on a defendant having a prior unrelated felony conviction. More precisely, in statutory
terms a sentence may not be suspended below the minimum sentence where “[t]he crime
committed was a Class A or Class B felony and the person has a prior unrelated felony
conviction.” Ind. Code § 35-50-2-2(b)(1) (emphasis added). Under its plain terms the statute
speaks in the present tense.
5
In the case before us, Gardiner had – past tense – a prior unrelated Class D felony
conviction. However effective February 8, 2008, that conviction was vacated by the Hamilton
Superior Court when it modified the D felony by entering judgment of conviction upon the Class
A misdemeanor. As a consequence, by the time Gardiner filed her “Petition For Sentence
Modification” in the Carroll Circuit Court her felony conviction was a matter of the past. We
conclude that as a matter of statutory construction, for purposes of the non-suspension statute,
Gardiner no longer has a prior unrelated felony conviction.
The trial court declined to suspend Gardiner’s sentence below the statutory minimum of
twenty years. On this narrow point we cannot say the trial court abused its discretion. To the
extent however the trial court’s decision was influenced by its assumption that it had no
discretion to sentence otherwise, the trial court erred. We therefore remand this cause to the trial
court for further consideration consistent with this opinion.
Conclusion
This cause is remanded.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
6