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Davidson v. State

Supreme Court of Indiana
May 25, 2010
926 N.E.2d 1023 (Ind. 2010)

Summary

holding that appellate courts should consider the “aggregate length of the sentence” because of the variety of penal tools available to the trial court

Summary of this case from Sharp v. State

Opinion

No. 49S02-1001-CR-41.

May 25, 2010.

Appeal from the Superior Court, Marion County, James B. Osborn, J.

Joel M. Schumm, Ruth Ann Johnson, Marion County Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Gary Damon Secrest, Wade James Hornbacher, James Edward Porter II, Deputy Attorney Generals, Indianapolis, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 49A02-0904-CR-287


Contrasting opinions of the Court of Appeals have disagreed about the manner and extent of consideration to be given to the suspended portion of a sentence upon appellate review. To resolve this conflict, we granted transfer and hold that appellate review under Indiana Appellate Rule 7 may include consideration of the totality of the penal consequences found in a trial court's sentence.

The defendant was convicted of Auto Theft, a class D felony, and Resisting Law Enforcement, a class A misdemeanor. For these convictions, he received an aggregate sentence of 545 days, the advisory sentence for a class D felony, with 180 days executed and 365 days suspended to probation. The defendant appealed, presenting only a claim for appellate review and revision of the sentence under Indiana Appellate Rule 7(B) and asserting that the total sentence of 545 days was inappropriate. The Court of Appeals affirmed. Davidson v. State, 916 N.E.2d 954 (Ind.Ct.App. 2009).

The Court of Appeals panel, however, was not in full agreement regarding whether "to review his partially-suspended advisory sentence the same as if it were a fully-executed advisory sentence." Id. at 958. The majority opinion, authored by Judge Najam, favored consideration of the fact that a portion of the sentence was suspended, agreeing with Judge Bradford's majority opinion for a unanimous panel in Jenkins v. State, 909 N.E.2d 1080, 1084-86 (Ind.Ct.App. 2009), trans. denied, which adopted Judge Kirsch's dissenting view in Eaton v. State, 825 N.E.2d 1287, 1291 (Ind.Ct.App. 2005), trans. not sought. Accord Beck v. State, 790 N.E.2d 520, 522-23 (Ind.Ct.App. 2003), trans. not sought. Judge Barnes wrote a separate concurring-in-result opinion in the present case, urging that the reviewing court should consider only the defendant's full 545-day sentence "without regard for the fact that a majority of that sentence was suspended to probation." Davidson, 916 N.E.2d at 962. This view was also favored in Eaton, 825 N.E.2d at 1290-91 (declining to consider the fact that part of the sentence was suspended); Pagan v. State, 809 N.E.2d 915, 926 n. 9 (Ind.Ct.App. 2004), trans. denied (including both the executed and the suspended portions of the sentence when determining whether the defendant received a maximum sentence); and Cox v. State, 792 N.E.2d 898, 904 n. 6 (Ind.Ct.App. 2003), trans. denied (finding the maximum sentence was imposed despite the fact that part of the sentence was suspended). In the present case, the defendant's sole claim on transfer is that, upon review under Appellate Rule 7(B), the reviewing court should evaluate only the full, aggregate sentence without considering whether all or any portion of it was suspended.

The Indiana Constitution expressly provides an appellate power to "review and revise the sentence imposed." Ind. Const. art. 7, § 4. Pursuant to this provision, Indiana Appellate Rule 7 authorizes a criminal defendant to appeal a sentence and states that the reviewing court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." App. R. 7(B). The defendant urges that; in exercising this power, only his aggregate sentence of 545 days should be evaluated, without consideration of the fact that the sentencing judge ordered 365 days suspended to probation and only 180 days to be executed.

In determining the penal consequences for a convicted defendant, trial courts have a variety of options beyond that of determining the length of a sentence. In imposing a sentence, trial judges may order, for example, suspension of the sentence, probation, home detention, placement in a community corrections program, executed time in a Department of Correction facility, or serving of sentences on multiple convictions concurrently rather than consecutively. And the General Assembly provides for additional penalties that can be levied against a defendant such as restitution and fines.

Ind. Code §§ 35-38-1-17,35-50-2-2.

I.C. § 35-38-2.

I.C. § 35-38-2.5.

I.C. § 35-38-2.6.

I.C. § 35-38-3.

I.C. § 35-50-1-2.

I.C. § 35-50-5.

We decline to narrowly interpret the word "sentence" in Appellate Rule 7 to constrict appellate courts to consider only the appropriateness of the aggregate length of the sentence without considering also whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge. This does not preclude a reviewing court from determining a sentence to be inappropriate due to its overall sentence length despite the suspension of a substantial portion thereof. A defendant on probation is subject to the revocation of probation and may be required to serve up to the full original sentence.

Conclusion

Upon the review of sentence appropriateness under Appellate Rule 7, appellate courts may consider all aspects of the penal consequences imposed by the trial judge in sentencing the defendant. The Court of Appeals in this case was correct. We disapprove of the contrary views expressed in Eaton, 825 N.E.2d at 1290-91; Pagan, 809 N.E.2d at 926; and Cox, 792 N.E.2d at 904. The judgment of the trial court is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.


Summaries of

Davidson v. State

Supreme Court of Indiana
May 25, 2010
926 N.E.2d 1023 (Ind. 2010)

holding that appellate courts should consider the “aggregate length of the sentence” because of the variety of penal tools available to the trial court

Summary of this case from Sharp v. State

holding appellate review under Indiana Appellate Rule 7 may consider both the number of years of a sentence and the manner in which the sentence is to be served

Summary of this case from Mehringer v. State

holding that we "may consider all aspects of the penal consequences imposed by the trial judge in sentencing the defendant," including the fact a portion of the sentence is suspended to probation or otherwise crafted using a variety of sentencing tools available to the trial court

Summary of this case from Shoffner v. State

holding that, under Indiana Appellate Rule 7(B), “appellate courts may consider all aspects of the penal consequences imposed by the trial judge”

Summary of this case from Mabie v. State

concluding that when reviewing a sentence for inappropriateness, we may consider "all aspects of the penal consequences imposed by the trial judge" including whether a portion of the sentence is ordered suspended

Summary of this case from Vanderford v. State

recognizing that choosing whether sentences will run concurrently or consecutively is among the trial court's many options when determining the length of a sentence

Summary of this case from Pierce v. State

noting that in reviewing sentences pursuant to Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the aggregate length of the sentence, but also “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge”

Summary of this case from Nicholson v. State

noting that in reviewing sentences pursuant to Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the aggregate length of the sentence, but also “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge”

Summary of this case from Hamilton v. State

noting that in reviewing sentences pursuant to Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the aggregate length of the sentence, but also “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge”

Summary of this case from Banks v. State

noting that in reviewing sentences pursuant to Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the aggregate length of the sentence, but also “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge”

Summary of this case from Reynolds v. State

noting that in reviewing sentences pursuant to Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the aggregate length of the sentence, but also “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge”

Summary of this case from Arellano v. State

In Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010), our supreme court held that Appellate Rule 7(B) should not be so narrowly construed so that the appellate court may consider only the aggregate length of the sentence without considering whether a portion of that sentence was suspended "or otherwise crafted using any of the variety of sentencing tools available to the trial judge."

Summary of this case from Perdew v. State

declining to "narrowly interpret the word 'sentence' in Appellate Rule 7 to constrict appellate courts to consider only the appropriateness of the aggregate length of the sentence without considering also whether a portion of the sentence is ordered suspended"

Summary of this case from Tibbetts v. State

noting the variety of options when determining the penal consequences for a convicted defendant

Summary of this case from Dawson v. State
Case details for

Davidson v. State

Case Details

Full title:Desmond DAVIDSON, Appellant (Defendant below), v. STATE of Indiana…

Court:Supreme Court of Indiana

Date published: May 25, 2010

Citations

926 N.E.2d 1023 (Ind. 2010)

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