Hollar v. State

VAIDIK, Judge,

concurring in result.

I agree with the majority's disposition of this case, but I disagree with its conclusion that executed and suspended sentences should be treated differently for purposes of Appellate Rule 7(B) review.

I should first point out that, in many 7(B) cases like this one, whether we review a defendant's entire potential sentence or only the executed portions may be of little consequence. The differential between an executed and imposed sentence may be so small as to have no practical effect on our overall 7(B) analysis. But to the extent this issue could affect some review-and-revise outcomes, I disagree with the approach espoused by the majority in this case.

Indiana courts have drawn no distinction between executed and suspended sentences in contexts outside of 7(B) inappropriateness. See, eg., Mask v. State, 829 N.E.2d 932, 935-36 (Ind.2005) (criminal episode sentencing); Eaton v. State, 825 N.E2d 1287, 1290 (Ind.Ct.App.2005) (abuse-of-discretion sentencing review), disapproved of on other grounds by Childress v. State, 848 N.E.2d 1073, 1077 n. 2 (Ind.2006). In Mask, the defendant committed three Class D felonies during a single episode of criminal conduct. 829 N.E.2d at 985. He was sentenced to consecutive terms totaling nine years. Id. Only three years of the sentence were ordered executed. Id. Under Indiana Code section 35-50-1-2(c), the maximum aggregate term that the defendant could receive for his criminal episode was four years. Id. The defendant argued that his nine-year sentence violated Section 35-50-1-2(c), even though only three years were ordered executed. Id. Our Supreme Court agreed. Id. The Court explained:

A suspended sentence differs from an executed sentenced only in that the period of incarceration is delayed unless, and until, a court orders the time served in prison. In other words, the imposition of a suspended sentence leaves open the real possibility that an individual will be "sent to incarceration for some period" before being released from any penal obligation. This commonly oceurs when probation or parole is revoked, and a defendant who received probation or parole is subject to incarceration until released.

Id. (citation omitted). The Court held that any period of a suspended sentence must be included when calculating the maximum aggregate sentence under Section 35-50-1-2(e). Id. at 986. The Court construed the statute to "include any period of incarceration a defendant is sentenced to, even if all or a portion of that period of time is suspended." Id.

In Eaton, the defendant pled guilty to a Class B felony. 825 N.E.2d at 1288. The trial court found two mitigators and no aggravators at sentencing. Id. at 1289. The court also found that the mitigating factors outweighed the aggravating factors. Id. Nonetheless, the trial court im*746posed the presumptive sentence for a Class B felony. Id. The entire sentence was suspended to probation. Id. We held that the trial court erred by sentencing the defendant to the presumptive term, because the court expressly found that the defendant's mitigators outweighed the ag-gravators. Id. We further noted that "(olur opinion does not change because this sentence was suspended. Indeed, it is suspended for now, but until Eaton serves his entire ten-year probation period there remains the possibility that he will have to serve ten years executed should the court find that he violated any condition of his probation." Id. at 1290. We observed that "[wlhen a court suspends the execution of sentence, only the act of executing the sentence has been suspended; a criminal conviction has been entered and the sentence has been assessed." Id. (quoting Taylor v. State, 25 S.W.3d 632, 633 (Mo.Ct.App.2000)).

Some Court of Appeals panels have also treated executed and suspended sentences the same within the context of 7(B) review. See, eg., Pagan v. State, 809 N.E.2d 915, 926 n. 9 (Ind.Ct.App.2004) ("This court has clarified that we will consider suspended portions of a sentence as well as executed portions when considering the appropriate, ness of a sentence." (citing Cox v. State, 792 N.E.2d 898, 904 n. 6 (Ind.Ct.App.2003), trans. denied)), trans. denied.

But the majority in this case follows Jenkins v. State, 909 N.E.2d 1080 (Ind.Ct.App.2009), trans. denied, which recently found that imposed and suspended sentences are not equivalent for purposes of a 7(B) inappropriateness challenge. Id. at 1084. The Jenkins panel concluded that "the particulars of a sentence can be just as relevant as its length when it comes to Rule 7(B) review," id. at 1085 (citing Hole v. State, 851 N.E.2d 302, 304 n. 4 (Ind.2006)), and that "it is simply not realistic to consider a year of probation, a year in community corrections, and a year in prison equivalent," id. at 1084. The Jenkins court acknowledged that probationary terms are often revoked and result in fully executed sentences. Id. But the court responded that "whether the suspended time is eventually served depends entirely on the defendant .... [A] defendant can ensure that it will never become reality by abiding by the terms of his probation." Id. at 1084-85. The court also distinguished Mask, explaining that Mask dealt only with a narrow sentencing issue under Indiana Code section 85-50-1-2. Id.; see also Beck v. State, 790 N.E.2d 520, 522 (Ind.Ct.App.2003) (reviewing sentence for inappropriateness and noting that "while sentenced to the maximum sentence of 865 days, [the defendant] did not receive the maximum punishment of an executed sentence").

1 find Jenkins, Beck, and the majority's holding today to be problematic. First, I believe that the observations that our courts have made outside the realm of 7(B) appropriateness have just as much application within the review-and-revise context. A probationary term poses the very "real possibility" that a defendant will have to serve his suspended sentence. Mask, 829 N.E.2d at 935; accord Eaton, 825 N.E.2d at 1290. Whether or not this is within the control of the defendant, I find it unrealistic to ignore the suspended portions of a sentence and review only those portions ordered executed. I also think Jenkins is misguided in distinguishing Mask simply because the latter case dealt with a statutory sentencing issue.

But the primary concern, in my opinion, is that if we decline to review the totality of a potential sentence on direct appeal, the defendant will have no other opportunity to challenge the appropriateness of the sentence should his probation be revoked. We review a trial court's *747sentencing decision in a probation revocation proceeding for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind.Ct.App.2005), trans. denied. Appellate Rule 7(B) "is not the correct standard to apply when reviewing a sentence imposed for a probation violation." Prewitt v. State, 878 NE.2d 184, 188 (Ind.2007). To adopt the Jenkins approach is therefore to deny an offender his only chance for meaningful 7(B) review.

I would decline to follow Jenkins and instead review the entirety of Hollar's suspended and executed sentences for inappropriateness. However, I join the majority in concluding that Hollar's imposed sentence is not inappropriate in light of the nature of the offense and the character of the offender. I therefore concur in result.