ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Steven Knecht                                               Gregory Zoeller
Lafayette, Indiana                                          Attorney General of Indiana

                                                            Nicole M. Schuster
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana
______________________________________________________________________________


                                                                                 FILED
                                In the                                        Feb 24 2011, 1:02 pm


                        Indiana Supreme Court                                         CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                            _________________________________                              tax court




                                    No. 08S02-1102-CR-108


JASON D. MILLER,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                      Appellee (Plaintiff below).
                            _________________________________

                             Appeal from the Carroll Circuit Court,
                                    No. 08C01-0803-FA-1
                             The Honorable Donald E. Currie, Judge
                            _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 08A02-1002-CR-129
                           _________________________________

                                       February 24, 2011

Per Curiam.

        Jason Miller was convicted of one count of child molesting as a class A felony and one
count of child molesting as a class C felony. With respect to the class A felony, the trial court
initially imposed a sentence of thirty years with ten years suspended to probation. The trial court
amended Miller’s sentence to thirty years executed with no portion suspended after the State
asserted that Indiana Code section 35-50-2-2(i) required a minimum sentence of thirty years and
permitted suspension only of the part of a sentence longer than thirty years. The Court of
Appeals affirmed the sentence in Miller v. State, No. 08A02-1002-CR-129, slip op. (Ind. Ct.
App. Oct. 8, 2010). We grant transfer to address the application of Indiana Code section 35-50-
2-2(i) to the sentence for the class A felony conviction.


          Generally, a trial court may impose any sentence between twenty and fifty years for a
class A felony, and may suspend any part of the sentence imposed. See I.C. §§ 35-50-2-2(a) &
35-50-2-4. When the class A felony is child molesting, however, “the court may suspend only
that part of the sentence that is in excess of the minimum sentence,” i.e., the portion in excess of
twenty years. See I.C. § 35-50-2-2(b)(4). Furthermore, as relevant here, if the convicted person
was over the age of twenty-one and the victim was younger than twelve, “the court may suspend
only that part of the sentence that is in excess of thirty years.”    I.C. § 35-50-2-2(i) (“section
2(i)”).


          The State asserts that section 2(i) requires a trial court to impose a minimum sentence of
thirty years. As the State acknowledges, the issue was decided against it in Hampton v. State,
921 N.E.2d 27, 30-31 (Ind. Ct. App. 2010), trans. denied, 929 N.E.2d 795 (table) (Ind. Jun. 17,
2010). There, the Court of Appeals concluded that section 2(i) “dictates only the discretion trial
courts have in designating which portions of a defendant's sentence may be suspended and does
not expressly set sentencing minimums,” 921 N.E.2d at 31, and that trial courts have discretion
“whether to sentence defendants to the advisory sentence, and require those so sentenced to serve
thirty years of executed time, or to sentence defendants to a sentence below the advisory level
under certain circumstances.” Id. at n.5. We conclude Hampton correctly decided the issue.


          Here, the trial court’s original sentence for the Class A conviction was thirty years (the
advisory sentence) with ten years suspended.          As explained above, this sentence was not
authorized because section 2(i) specifies that only that portion of a sentence in excess of thirty
years may be suspended. The trial court amended the sentence to thirty years with no time
suspended. This sentence was authorized, but the transcript suggests the trial court did so
because it thought the State was correct in asserting that section 2(i) required a minimum
sentence of thirty years. (Tr., Mot. to Correct Error Hrg., at 4-5.) As indicated, however, a



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sentence of less than thirty years could have been imposed because section 2(i) does not set a
minimum sentence.


       Accordingly, we grant transfer and remand the case to the trial court for resentencing
consistent with this opinion. The remainder of the Court of Appeals memorandum decision
(reversing the trial court’s determination of Miller’s credit time classification, finding no
violation of double jeopardy principles, and finding sufficient evidence supported the
convictions) is summarily affirmed. See Appellate Rule 58(A)(2).


Shepard, C.J., and Dickson, Sullivan, Rucker, and David, JJ., concur.




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