Davidson v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Joel M. Schumm Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Ruth Ann Johnson Gary Damon Secrest

Marion County Public Defender Deputy Attorney General

Indianapolis, Indiana

Wade James Hornbacher

Deputy Attorney General

James Edward Porter II

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

FILED

May 25 2010, 10:48 am

Indiana Supreme Court CLERK

_________________________________ of the supreme court,

court of appeals and

tax court

No. 49S02-1001-CR-41

DESMOND DAVIDSON, Appellant (Defendant below),

v.

STATE OF INDIANA, Appellee (Plaintiff below).

_________________________________

Appeal from the Marion Superior Court, No. 49F15-0808-FD-185990

The Honorable James Osborn, Judge

_________________________________

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

_________________________________

May 25, 2010

Dickson, Justice.

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 En-

forcement, 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 sus-

pended 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. de-

nied (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 with-

out considering whether all or any portion of it was suspended.

2

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 re-

vise 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 charac-

ter 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 va-

riety 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,1 probation,2 home detention,3 place-

ment in a community corrections program,4 executed time in a Department of Correction facili-

ty,5 or serving of sentences on multiple convictions concurrently rather than consecutively.6 And

the General Assembly provides for additional penalties that can be levied against a defendant

such as restitution and fines.7

We decline to narrowly interpret the word "sentence" in Appellate Rule 7 to constrict ap-

pellate courts to consider only the appropriateness of the aggregate length of the sentence with-

out 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

1

Ind. Code §§ 35-38-1-17, 35-50-2-2.

2

I.C. § 35-38-2.

3

I.C. § 35-38-2.5.

4

I.C. § 35-38-2.6.

5

I.C. § 35-38-3.

6

I.C. § 35-50-1-2.

7

I.C. § 35-50-5.

3

length despite the suspension of a substantial portion thereof. A defendant on probation is sub-

ject 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.

4