Opinion
No. 49A02–1201–CR–3.
2013-03-4
Antonio HIGHBAUGH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
Appeal from the Marion Superior Court; The Honorable Reuben Hill, Judge; Cause No. 49F18–1007–FD–55325. Darren Bedwell, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appeal from the Marion Superior Court; The Honorable Reuben Hill, Judge; Cause No. 49F18–1007–FD–55325.
Darren Bedwell, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
MEMORANDUM DECISION—NOT FOR PUBLICATION
BRADFORD, Judge.
Appellant–Defendant Antonio Highbaugh was convicted of Class A misdemeanor residential entry, and the trial court sentenced him to 365 days of incarceration with 361 days suspended to probation. Pursuant to the Indiana Supreme Court's decision in Jennings v. State, ––– N.E.2d –––– (Ind. Feb. 20, 2013), we reject Highbaugh's contention that the trial court erred in sentencing him and affirm.
FACTS AND PROCEDURAL HISTORY
On December 6, 2011, the trial court found Highbaugh guilty of Class A misdemeanor residential entry, entered judgment on conviction accordingly, and sentenced him to 365 days of incarceration with 361 days suspended to probation. Highbaugh now appeals.
DISCUSSION AND DECISION
Highbaugh's only contention on appeal is that the trial court erred in suspending a portion of his misdemeanor sentence to probation, relying on Court of Appeals decisions holding that the phrase “term of imprisonment” used in Indiana Code section 35–50–3–1 (Indiana's misdemeanor sentencing statute) includes time suspended from a sentence. See Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011), reaff'd on reh'g962 N.E.2d 1260 (Ind.Ct.App.2012), trans. granted and vacated. Highbaugh contends that his combined terms of imprisonment and probation therefore exceed the one-year maximum sentence for a Class A misdemeanor. On February 20, 2013, however, the Indiana Supreme Court handed down its decision in Jennings v. State, ––– N.E.2d –––– (Ind. February 20, 2013), which held that “for purposes of Indiana Code § 35–50–3–1, ‘term of imprisonment’ means the total amount of time a misdemeanant is incarcerated” but does not include suspended portions of the sentence. Id., slip op. at 1, 10. Highbaugh's sentence therefore does not exceed the one-year maximum for a Class A misdemeanor.
We affirm the judgment of the trial court.