Corey Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 20, 2016
• Docket: 49A04-1509-CR-1379
• Status: Published

Opinion

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).

Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016 Page 2 of 4 [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

Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016 Page 3 of 4 (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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016 Page 4 of 4