What Is Shock Probation?

What Is Shock Probation?

With very limited exceptions, a trial court judge that imposes a sentence sending an individual to prison or to jail has no authority over a defendant after the sentence has been imposed. That is, the jurisdiction over the defendant goes to the correctional facility and does not remain with the judge. Dier v. State, 524 N.E.2d 789, 790 (Ind. 1988). See also, State ex rel Abel v. Vigo Circuit Court (1984) Ind., 462 N.E.2d 61.

One notable exception to that long-standing rule has been known as the “shock probation statute[.]” Absent a statutory authority, a trial court does not have the ability to modify or change a sentence. The Indiana Supreme Court has previously held that there is no authority for a trial court to reopen a sentencing almost five years after its imposition and at the instance of the State to change that sentence as the trial court did here. Id.; Pettiford v. State of Indiana (1987), Ind., 504 N.E.2d 324.

One such statute is the sentence modification statute, which gives trial court judges the ability under certain circumstances to modify a sentence after it is imposed. However, those statutes can and often do change. “Indiana's sentence modification statute was substantially amended in 2014 as part of a broad overhaul of the criminal code.” Woodford v. State, 58 N.E.3d 282, 284-85 (Ind. Ct. App. 2016).

In many instances, there is a question about whether a particular statute applies to a particular defendant or groups of defendants. The Indiana Court of Appeals has previously held that a 2014 version of the sentence modification statute did not apply to offenders convicted or sentenced before the statute's effective date. Swallows v. State, 31 N.E.3d 544 (Ind. Ct. App. 2015), trans. denied; Hobbs v. State, 26 N.E.3d 983 (Ind. Ct. App. 2015)). However, in 2015, the Indiana Legislature responded to that judicial authority by clarifying that the sentence modification statute “applies to a person who: (1) commits an offense; or (2) is sentenced before July 1, 2014.” I.C. § 35-38-1-17(a) (Supp. 2015). As such, the 2015 amendment by the General Assembly was intended to cure a defect or issue that existed in a prior statute and was remedial. Woodford, 58 N.E.3d at 285.

Knowing which version of the modification statute applies can be critical when assessing whether an incarcerated individual can even petition for a modification of his or her sentence. Similarly, as the statutes can often change, seeking experienced counsel who understand which statutes apply and which do not is also important.

Assuming that an individual can seek a modification, what do judges look for when deciding whether to grant a modification or deny it? Certainly, courts can look at an individual’s achievements and efforts at rehabilitation after the initial sentence was imposed. If an individual has completed time-cut or non-time cut programs in the facility, that can be an important factor. That can be particularly important if the individual’s sentence is in the not to distant future. However, courts can and often do look at the facts and circumstances surrounding the initial crime when making their decision. Indiana Courts have held that “the heinousness of a person's crime alone can serve as the basis for denying a sentence reduction.” Myers v. State, 718 N.E.2d 783, 789 (Ind.Ct.App.1999); see also Marshall v. State, 563 N.E.2d 1341, 1344 (Ind.Ct.App.1990) (balancing defendant's rehabilitative conduct against the aggravating circumstances in original sentencing order in affirming denial of motion to modify sentence), trans. denied.

If you or a loved one are considering filing a petition for modification, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized history. Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.


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