Karina Wilson v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, May 10 2013, 8:23 am
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F, ZOELLER
Deputy County Public Defender Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KARINA WILSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1207-CR-602
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly Brown, Judge
The Honorable Teresa Hall, Commissioner
Cause No. 49G16-1010-FD-80758
May 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Karina Wilson appeals her sentence for Class A misdemeanor battery. We affirm.
Issue
The sole issue is whether the trial court erred in imposing a sentence of 357 days
suspended, to be served on probation.
Facts
On May 17, 2012, a jury found Wilson guilty of Class A misdemeanor battery.
The trial court subsequently sentenced Wilson to a term of 365 days, with eight days
executed but credit for having already served those eight days. As for the remaining 357
days, the trial court stated, “I’m suspending 357 days, and I am placing her on probation
for 357 days.” Tr. p. 347. Wilson now appeals her sentence.
Analysis
Wilson argues that her sentence of 357 days, suspended to probation, is the
functional equivalent of a 714-day sentence, in excess of the one-year combined term of
imprisonment and probation limit for misdemeanors. See Ind. Code 35-50-3-1. In
support of this argument, Wilson has relied upon decisions of this court in Peterink v.
State, 971 N.E.2d 735 (Ind. Ct. App. 2012), Jennings v. State, 956 N.E.2d 203 (Ind. Ct.
App. 2011), and Collins v. State, 835 N.E.2d 1010 (Ind. Ct. App. 2005).
However, after Wilson submitted her brief in this case, our supreme court issued
its decisions in Jennings v. State, 982 N.E.2d 1003 (Ind. 2013), and Peterink v. State, 982
2
N.E.2d 1009 (Ind. 2013). In those cases, the court clarified that “term of imprisonment”
for purposes of misdemeanor sentencing limits under Indiana Code Section 35-50-3-1
means the total amount of time a misdemeanant is actually incarcerated and does not
include suspended time. Jennings, 982 N.E.2d at 1009. Additionally, a misdemeanor
sentencing term that includes a portion suspended to probation does not equal twice the
suspended time. See id. Thus, for example, a misdemeanor sentencing term of one year
suspended with one year’s probation equals a one-year sentence for purposes of Section
35-50-3-1. See Peterink, 982 N.E.2d at 1010. As such, Wilson’s sentence of eight days
previously executed and 357 days suspended to be served on probation equals a one-year
sentence and does not violate Section 35-50-3-1. Both the trial court’s sentencing
statement and the abstract of judgment are unambiguous. Wilson was properly
sentenced.
Conclusion
Wilson’s sentence does not violate the one-year limit for misdemeanors. We
affirm.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
3