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ATTORNEYS FOR APPELLANT
Joel M. Schumm Indianapolis, Indiana Ruth Ann Johnson Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Attorney General of Indiana Gary Damon Secrest Deputy Attorney General Wade James Hornbacher Deputy Attorney General James Edward Porter II Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

May 25 2010, 10:48 am

Indiana Supreme Court
_________________________________ No. 49S02-1001-CR-41 DESMOND DAVIDSON, v. STATE OF INDIANA,

CLERK

Appellant (Defendant below),

Appellee (Plaintiff below). _________________________________

Appeal from the Marion Superior Court, No. 49F15-0808-FD-185990 The Honorable James Osborn, Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 49A02-0904-CR-287 _________________________________ May 25, 2010 Dickson, Justice.

Contrasting opinions of the Court of Appeals have disagreed about the manner and extent of consideration to be given to the suspended portion of a sentence upon appellate review. To resolve this conflict, we granted transfer and hold that appellate review under Indiana Appellate

Rule 7 may include consideration of the totality of the penal consequences found in a trial court's sentence.

The defendant was convicted of Auto Theft, a class D felony, and Resisting Law Enforcement, a class A misdemeanor. For these convictions, he received an aggregate sentence of 545 days, the advisory sentence for a class D felony, with 180 days executed and 365 days suspended to probation. The defendant appealed, presenting only a claim for appellate review and revision of the sentence under Indiana Appellate 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 review his partially-suspended advisory sentence the same as if it were a fully-executed advisory sentence." Id. at 958. The majority opinion, authored by Judge Najam, favored consideration of the fact that a portion of the sentence was suspended, agreeing with Judge Bradford's majority opinion for a unanimous panel in Jenkins v. State, 909 N.E.2d 1080, 1084

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Indiana Law