Sentencing in a criminal case occurs after a plea agreement is presented to the Court or a finding/verdict of guilty for a crime by a judge or jury occurs. The Judge has the duty of sentencing a person, which includes determining whether multiple convictions should be served concurrently or consecutively. The Court has the discretion to accept or reject a plea agreement. The Court may consider the following statutory aggravating and mitigating factors. The existence of a victim and criminal history are normally important factors.
- Aggravating Factors
- (1) The harm, injury, loss, or damage suffered by the victim of an offense was:
- (A) significant; and
- (B) greater than the elements necessary to prove the commission of the offense.
- (2) The person has a history of criminal or delinquent behavior.
- (3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
- (4) The person:
- (A) committed a crime of violence (IC 35-50-1-2); and
- (B) knowingly committed the offense in the presence or within hearing of an individual who:
- (i) was less than eighteen (18) years of age at the time the person committed the offense; and
- (ii) is not the victim of the offense.
- (5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.
- (6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.
- (7) The victim of the offense was:
- (A) a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability; or
- (B) mentally or physically infirm.
- (8) The person was in a position having care, custody, or control of the victim of the offense.
- (9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
- (10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
- (11) The person:
- (A) committed trafficking with an inmate under IC 35-44.1-3-5; and
- (B) is an employee of the penal facility.
- (12) The person committed the offense with bias due to the victim’s or the group’s real or perceived characteristic, trait, belief, practice, association, or other attribute the court chooses to consider, including but not limited to an attribute described in IC 10-13-3-1.
- Mitigating Factors
- (1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
- (2) The crime was the result of circumstances unlikely to recur.
- (3) The victim of the crime induced or facilitated the offense.
- (4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
- (5) The person acted under strong provocation.
- (6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
- (7) The person is likely to respond affirmatively to probation or short term imprisonment.
- (8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
- (9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
- (10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
- (11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
- (12) The person was convicted of a crime relating to a controlled substance and the person’s arrest or prosecution was facilitated in part because the person:
- (A) requested emergency medical assistance; or
- (B) acted in concert with another person who requested emergency medical assistance;
- for an individual who reasonably appeared to be in need of medical assistance due to the use of alcohol or a controlled substance.
- (13) The person has posttraumatic stress disorder, traumatic brain injury, or a post-concussive brain injury.
A very good question is what sentences are possible? The most significant part of a sentence is the loss of liberty, and there are different levels of severity for the loss of liberty. From least severe to most severe, there is probation, home detention, work release, incarceration in jail or prison, and the death penalty (only for murder). Other possible components of a sentence include, but are not limited to, fines, restitution, court costs, treatment, and no contact orders. The following is the sentencing range for crimes committed on and after July 1st, 2014. The number inside parenthesis is after good time credit is applied.
- Murder
- Minimum: 45 (33.75) years, Advisory: 55 (41.25) years, Maximum: 65 (48.75) years, Maximum Fine: $10,000.
- Life imprisonment without parole or death penalty are possibilities.
- Level 1 Felony
- Minimum: 20 (15) years, Advisory: 30 (22.5) years, Maximum: 40 (30) years, Maximum Fine: $10,000.
- Maximum for certain child molesting offenses: 50 (37.5) years.
- Level 2 Felony
- Minimum: 10 (7.5) years, Advisory: 17.5 (13.13) years, Maximum: 30 (22.5) years, Maximum Fine: $10,000.
- Level 3 Felony
- Minimum: 3 (2.25) years, Advisory: 9 (6.75) years, Maximum: 16 (12) years, Maximum Fine: $10,000
- Level 4 Felony
- Minimum: 2 (1.5) years, Advisory: 6 (4.5) years, Maximum: 12 (9) years, Maximum Fine: $10,000.
- Level 5 Felony
- Minimum: 1 (.75) years, Advisory: 3 (2.25) years, Maximum: 6 (4.5) years, Maximum Fine: $10,000.
- Level 6 Felony
- Minimum: 6 (3) months, Advisory: 1 (0.5) year, Maximum: 2.5 (1.25) years, Maximum Fine: $10,000.
- Alternative Misdemeanor Sentencing (AMS), which reduces a Level 6 Felony to a Class A Misdemeanor, is possible.
- Class A Misdemeanor
- Maximum: 1 (0.5) year, Maximum Fine: $5,000.
- Class B Misdemeanor
- Maximum: 180 (90) days, Maximum Fine: $1,000.
- Class C Misdemeanor
- Maximum: 60 (30) days, Maximum Fine: $500.
The State can pursue enhancements of a sentence under certain circumstances, which including the following:
- Habitual Offender
- Murder and Levels 1-4 Felonies: 6-20 years
- Level 5-6 Felonies: 2-6 years
- Use of firearm during commission of offense involving a person
- 5-20 years
- Use or possession of firearm during commission of drug dealing offense (not marijuana)
- 5-20 years
- Repeat sex offender
- Additional advisory sentence term, 10 year maximum
- Criminal organization enhancement:
- Additional term equal to the sentence imposed or longest sentence imposed for multiple convictions
- Termination of human pregnancy
- 6-20 years
- Felony terrorist offense
- Additional term equal to the sentence imposed or longest sentence imposed for multiple convictions
A person serving a criminal sentence of some form of incarceration or sitting in jail prior to trial generally receives good time credit, which reduces the amount of time in a sentence. Non-credit restricted felons imprisoned during a sentence or pre-trial/sentencing for a Level 6 Felony or below are initially assigned to Class A. Non-credit restricted felons imprisoned during a sentence or pre-trial/sentencing for a Level 5 Felony or higher are initially assigned to Class B. Credit restricted felons imprisoned during a sentence or pre-trial/sentencing are initially assigned to Class C. Non-credit and credit restricted felons may be reassigned to either Class C or Class D if they violate: (1) A rule of the department of correction, (2) a rule of the penal facility in which the person is imprisoned, or (3) a rule or condition of a community transition program. A person placed on pretrial home detention awaiting trial is assigned to Class P, and said persons may not be reassigned to another credit time class while on pretrial home detention awaiting trial. These classes receive good time credit for offenses that occur after June 30th, 2014 in accordance with the following schedule:
- A person assigned to Class A earns one (1) day of good time credit for each day the person is imprisoned for a crime or confined awaiting trial or sentencing.
- A person assigned to Class B earns one (1) day of good time credit for every three (3) days the person is imprisoned for a crime or confined awaiting trial or sentencing.
- A person assigned to Class C earns one (1) day of good time credit for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.
- A person assigned to Class D earns no good time credit.
- A person assigned to Class P earns one (1) day of good time credit for every four (4) days the person serves on pretrial home detention awaiting trial.
A person can also receive educational credit, which reduces a sentence like good time credit, while incarcerated for completing school, including GED, high school, associate’s degree, and bachelor’s degree, and rehabilitation classes, such as a career and technical or vocational education program, substance abuse program, literacy and basic life skills program, reformative program, and individualized case management plan.
A person convicted of a crime generally has the ability to pursue sentence modification or review of their sentence by an appellate court. If you have any questions or issues regarding a criminal sentence, contact me today.