A TTORNEY S FOR A PPELLANT A TTORNEY S FOR A PPELLEE

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 Indianapo lis, Indiana Wade James Hornbacher Deputy Attorney General

James Edward Porter II Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme C ourt

_________________________________ No. 49S02

- 1001

- CR

- 41

D ESMOND D AVIDSON , Appellant ( Defendant b e low),

v.

S TATE OF I NDIANA , Appellee ( Pla intiff b e low )

.

_________________________________ Appeal from the Marion Superior C ourt, No. 49F15

- 0808

- FD

- 185990

The Honorable J ames Osborn , Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 4 9A02

- 0 904

- CR

- 287

_________________________________

May 2 5 , 2010
Dickson, Justice.

Contrasting opinions of t he Court of Appeals have disagreed about the manner and extent of consideration to be given to the suspended portion of a sen tence upon appellate review. To

r e solve this conflict, we granted transfer and hold that appellate review under Indiana Appellate2

Rule 7 m ay inc l u d e consideration of the totality of the penal consequences foun d in a trial court's

se n tence.

The defendant was convicted of Auto Theft, a class D felony, and Resisting Law E nforcement, a class A misdemeanor. For these convictions, he received a n aggregate sentence of
545 day s , the advisor y sentence for a class D felony
, with 180 days executed and 365 days su spended to probation. The defendant appealed, presenting only a claim for appellate review and
revision of the sentence under Indiana Appel late 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

r e view his partially

- suspended advisory sentence the same as if it were a fully

- executed advisory
sentence." Id . at 9 58

. The majority opinion, authored by Judge Najam, favored consider a tion of the fact that a portion of the sentence was suspended, ag reeing with Judge Bradford's majority opinion for a unanimous panel in Jenkins v. State , 909 N.E.2d 1080, 1084

– 8 6 (Ind. Ct. App. 2009) , t rans. denied
, which adopted Judge Kirsch's dissenting view in Eaton v. State , 825 N.E.2d 1287, 1291 (Ind. Ct. App. 2005 ) , t rans. not sought

. Accord Beck v. State , 790 N.E.2d 520, 522

– 2 3 (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 d e fendant '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

– 9 1 (declining to consider the fact that part of the s entence was suspended); Pagan v.
State , 809 N.E.2d 915, 926 n.9 (Ind. Ct. App. 200 4 ) , t rans. denied (including both the executed and the suspended portion s of the sentence when determining whether the defendant received a maximum sentence) ; and Cox v. Stat e , 792 N.E.2d 898 , 904 n.6 (Ind. Ct. App. 200 3 ) , t rans. d enied (finding the maximum sentence was imposed despite the fact that part of the sentence was

su s pended)

. In the present case, the defendant's sole claim on transfer is that , upon review under Appe llate Rule 7(B), the reviewing court should evaluate only the full, aggregate sentence wit hout considering whether all or any portion of it was suspended.3

The Indiana Constitution expressly provides an appellate power to " review and revise the
sentence i mposed." Ind. Const. art. 7, § 4. Pursuant to this provision, Indiana Appe l late Rule 7 authorizes a criminal defendant to appeal a sentence and states that the reviewing court "may r evise a sentence authorized by statute if, after due consideration of th e trial court's dec i sion, the Court finds that the sentence is inappropriate in light of the nature of the offense and the chara cter of the offender." App. R. 7(B). The defendant urges that in exercising this power , o n ly his aggregate sentence of 545 day s should be evaluated, without consi d eration of the fact that the sentencing judge ordered 365 days suspended to probation and only 180 d ays to be e x ecuted.

In determining the penal consequences for a convicted defendant, trial courts have a v ariety of o ptions 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 plac ement in a community corrections program , 4 executed time in a Department of Correction facil ity , 5 or serving of sentences on multiple convictions concurrently rather than consecutively. 6 And the General Assembly provide s for additional penalties that can be levied against a defe n dant
such as restitution and fines. 7

We decli ne to narrowly interpret the word "sentence" in Appellate Rule 7 to constrict a ppellate courts to consider only the appropriateness of the aggregate length of the sentence wit hout considering also whether a portion of the sentence is ordered suspended or o therwise 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

- 5.4

length despite the suspension of a substantial portion thereof. A defendant on probation is su bject 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 cons ider all aspects of the penal consequences imposed by the trial judge in senten c ing 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 129 0

– 9 1 ; 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.