First impression in ‘non-suspension’ rule case

The Indiana Court of Appeals determined in a case of first impression that the state's 'non-suspension rule' in Indiana Code depends on the status of the prior criminal conviction at the time of sentencing for a subsequent conviction. Because a woman's prior unrelated Class D felony conviction wasn't reduced to a Class A misdemeanor at the time she was sentenced for a later drug conviction, her 20-year sentence stands.

In Julie A. Gardiner v. State of Indiana, No. 08A02-0810-CR-874, Julie Gardner appealed her sentence for dealing in methamphetamine within 1,000 feet of a public park as a Class A felony. She argued the trial court erred when it determined Indiana Code Section 35-50-2-2(b)(1), the non-suspension rule, prohibited the court from suspending any portion of her statutory minimum 20-year sentence because she had a prior Class D felony conviction in Hamilton County that was later reduced to a Class A misdemeanor following a plea agreement and her successful completion of one year on probation.

No Indiana court had addressed the issue of whether a reduction of a prior conviction from a felony to a misdemeanor pursuant to a plea agreement affects the application of the non-suspension rule. Based on Hutcherson v. State, 411 N.E.2d 962 (Ind. 1982), only a reversal or vacation of a prior conviction could allow for Gardiner's dealing in methamphetamine sentence to be reduced under the non-suspension rule. If the Hamilton County trial court had immediately reduced her prior felony to the misdemeanor, then the trial court would have had the discretion to order a suspended sentence now, Judge Margret Robb wrote for the majority. However, since that court postponed the reduction, Gardiner still had the Class D felony conviction on her record when she was convicted and sentenced for Class A felony dealing in methamphetamine, and the trial court couldn't reduce her sentence beyond the statutory minimum.

The split court was sympathetic to the argument that the non-suspension rule under these circumstances doesn't take into account Gardiner's good behavior after she was sentenced and Judge Robb wrote the judges were frustrated by a sentencing scheme "that so illogically limits the judge's discretion." The majority invited the legislature to consider amending the statutes to provide more judicial discretion.

The majority noted this holding only applies when a defendant is initially convicted or pleads guilty and is sentenced to a Class D felony and the conviction is later modified; it does not apply when a defendant is found guilty of a Class D felony but the trial court enters a conviction for a Class A misdemeanor pursuant to I.C. 35-50-2-7(b).

Judge Elaine Brown dissented, writing she wouldn't give the non-suspension rule such a strict interpretation as to tie the trial court's hands in suspending a minimum sentence when circumstances warrant a modification.