MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 20 2016, 8:37 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Corey Brown,                                             April 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1509-CR-1379
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G08-1507-CM-25404



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016        Page 1 of 4
[1]   Corey Brown asserts the trial court imposed an illegal sentence following his

      conviction of Class B misdemeanor battery by bodily waste, 1 and the State

      agrees. 2 We reverse and remand with instructions.


                                      Facts and Procedural History
[2]   On July 19, 2015, Brown spat in the face of another customer at a gas station.

      He was arrested, and the State charged him with Class B misdemeanor battery

      by bodily waste. The trial court found him guilty and imposed the following

      sentence: 180 days in the Marion County Jail, with 32 days served, 32 days of

      good time credit earned, 116 days suspended, and 365 days of supervised

      probation.


                                         Discussion and Decision
[3]   “[S]entencing decisions rest within the sound discretion of the trial court.”

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), decision clarified on reh’g, 875

      N.E.2d 218 (Ind. 2007). Thus, we review on appeal only for an abuse of that

      broad discretion. Id. One of the ways a trial court may abuse its discretion is

      by imposing a sentence that is “improper as a matter of law.” Id. at 491.




      1
          Ind. Code § 35-42-2-1(b)(2) (2014).
      2
        The State concedes Brown’s sentence exceeds the statutorily-permitted maximum, but nevertheless asserts
      the court “acted within its discretion in sentencing” Brown. (Br. of Appellee at 6.) As a matter of law and of
      logic, this is not possible, because “a trial court’s misunderstanding of the law constitutes an abuse of
      discretion.” Russell v. State, 34 N.E.3d 1223, 1228 (Ind. 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016              Page 2 of 4
[4]   Our legislature determined the sentence for a Class B misdemeanor shall be a

      “fixed term of not more than one hundred eighty (180) days.” Ind. Code § 35-

      50-3-3. In addition, our legislature made it possible for trial courts to suspend

      sentences for misdemeanors, Ind. Code § 35-50-3-1(a), and provided that when

      so suspending, the court could impose a term of probation:


              [W]henever the court suspends in whole or in part a sentence for
              a Class A, Class B, or Class C misdemeanor, it may place the
              person on probation under I.C. 35-38-2 for a fixed period of not
              more than one (1) year, notwithstanding the maximum term of
              imprisonment for the misdemeanor set forth in sections 2
              through 4 of this chapter. However, the combined term of
              imprisonment and probation for a misdemeanor may not exceed
              one (1) year.


      Ind. Code § 35-50-3-1(b) (2015).


[5]   Our Indiana Supreme Court explained the proper application of that statute in

      Jennings v. State, 982 N.E.2d 1003 (Ind. 2013). Following his conviction of a

      Class B misdemeanor, Jennings received a sentence of 180 days, with 30 days

      executed, 150 days suspended, and 360 days on probation. Id. at 1004. Our

      Supreme Court held “a combined term of probation and imprisonment may not

      exceed one year, notwithstanding the maximum term of imprisonment for the

      misdemeanor. We further hold that ‘term of imprisonment,’ for purposes of

      misdemeanor sentencing, does not include suspended time.” Id. at 1005.

      Based thereon, our Supreme Court remanded for the trial court to impose a

      probation period “not to exceed 335 days—the difference between one year



      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016   Page 3 of 4
      (365 days) and the 30 days Jennings was ordered to serve in prison.” Id. at

      1009.


[6]   Brown received a sentence of 64 days served plus 365 days on probation.

      Because the combined term of Brown’s sentence is more than 365 days, the

      sentence violated Indiana Code § 35-50-3-1(b). See Jennings, 982 N.E.2d at

      1009. We reverse his sentence and remand for imposition of probation not

      greater than 301 days—the difference between 365 days and the 64 days for

      which Brown has credit based on his incarceration. See id.


[7]   Reversed and remanded.


      Baker, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1379 | April 20, 2016   Page 4 of 4
