The process of sentencing involves many considerations, such as the existence of guidelines, aggravating and mitigating circumstances, advisory sentences, any issues of habituality. And felony convictions come with serious consequences, but there are some situations in which sentencing for a felony can be recharacterized. In Indiana, the sentencing process for a lower-level felony also raises the issue of the applicability of Indiana’s alternative misdemeanor sentencing.

With more than one Indiana Code provision addressing the process, however, even a quick Internet search for “misdemeanor sentence” can lead a person to utter confusion as to what alternative misdemeanor sentencing (AMS) is or how to go about the possibility of seeking an alternative sentence. Common questions arise:

• What is the difference between Indiana sentence modification and Indiana alternative misdemeanor sentencing?
• Is a modification the same thing as an alternative?
• How will you know what Indiana Code provision applies to your situation?
• Why are there two Indiana Code provisions that address Indiana AMS petitions?

Using an Indiana misdemeanor attorney from Keffer Hirschauer LLP removes the burden of figuring things out on your own. With their experience in Indiana alternative misdemeanor sentencing, Keffer Hirschauer LLP attorneys can pursue an Indiana AMS petition on your behalf and reduce the uncertainty you might have in conducting your own search of the steps to take in reducing a felony sentence. Eliminate the guesswork and have a real Indiana misdemeanor attorney develop a strategy that works to get you closer to your Indiana alternative misdemeanor sentencing goal.

Understanding Indiana Alternative Misdemeanor Sentencing

It may sound like the law surrounding Indiana alternative misdemeanor sentencing provides a way to find alternatives to being sentenced for committing a misdemeanor. As a knowledgeable Indiana misdemeanor attorney will tell you, however, this is not the case.

Instead, alternative misdemeanor sentencing is a process through which you can seek to convert a Level 6 felony (considered a lower-level felony) to a Class A misdemeanor. In short, you seek a conviction for a less serious classification and the benefits associated with that lesser classification.

Two preliminary explanations help illustrate the benefit of alternative misdemeanor sentencing:

• A Level 6 felony is a crime that has a sentencing range of 6 months to 2.5 years with an advisory sentence of 1 year (these timeframes are for crimes committed after June 30, 2014—felonies before then were labeled according to Class)
• A Class A misdemeanor in Indiana is a crime that is punishable with up to $5,000 in fines and up to 1 year in jail

Alternative misdemeanor sentencing can help you avoid the risk of a 2.5-year sentence and having a felony conviction on your record to a maximum sentence of one year in jail and avoiding the consequences of having a felony conviction on your record. However, the statutory scheme is complicated, making guidance from an experienced Indiana misdemeanor attorney critical to your success.

Statutory Provisions That Allow for Indiana Alternative Misdemeanor Sentencing

The sentence a court can impose is dictated by statute as is the court’s authority to enter an alternative misdemeanor sentence. The authority for alternative sentencing comes from two statutes:

• Indiana Code § 35-50-2-7 on Level 6/Class D felony sentencing
• Indiana Code § 35-38-1-1.5 on converting a Level 6 felony to Class A misdemeanor

These statutes operate quite differently. The first allows the court to enter a judgment of conviction for a misdemeanor on a Level 6/Class D felony, while the second refers to converting a felony conviction to a misdemeanor conviction.

Courts in the Indiana court system do not necessarily take the time to explain which one to use. Every defendant’s situation is different, too. With all of these moving parts, it is particularly important to enlist the help of an Indiana misdemeanor attorney when analyzing which classification and which statute applies to your situation.

Indiana Code § 35-50-2-7: AMS by Court Order or by Petition

Indiana Code § 35-50-2-7 allows a court to enter a judgment of conviction for a Level 6/Class D felony as a Class A misdemeanor and to impose a misdemeanor sentence accordingly. This type of alternative misdemeanor sentencing can occur before the court imposes a sentence or after sentencing (by petition). On its own initiative, the court may choose to impose alternative misdemeanor sentencing before imposing a sentence. If the court does not do so, the statute sets out the procedure for requesting a misdemeanor sentence after the court has entered a judgment of conviction and imposed sentence or a Level 6/Class D felony.

A defendant seeking an alternative misdemeanor sentence after a felony sentence has been imposed must file a verified petition that includes all of the following information:

• The offense for which the defendant is seeking alternative misdemeanor sentencing
• The date of the conviction
• The date the defendant completed the sentence
• Additional conditions imposed as part of the sentence
• The date the defendant satisfied those conditions
• A verified statement that there the defendant has no criminal charges pending

Critically, the prosecuting attorney must be notified of the request. The court must then set a hearing and give the prosecutor notice of the same.

The court may approve the request for alternative misdemeanor sentencing only if it makes findings the defendant’s criminal record does not include any of the following:

• A determination the defendant is a sex or violent offender under Indiana Code § 11-8-8-5
• A conviction for a felony involving bodily injury to another person
• A conviction for perjury under Indiana Code § 35-44.1-2-1 or official misconduct under Indiana Code § 35-44.1-2-2 (or the predecessors of those statutes)
• A conviction for domestic battery in the 15-year period prior to the commission of the current offense

The court must also find that the defendant meetings the following requirements:

• The defendant has not been convicted of a felony since completing the sentence
• At least three years have passed since the defendant:
  • Completed the sentence for the Level 6/Class D felony, and
  • Satisfied any other conditions imposed as part of the Level 6/Class D felony sentence
• There are no criminal charges are pending against the person

When Indiana Code § 35-50-2-7 Will Not Work

There are some limitations to using Indiana Code § 35-50-2-7. Specifically, Indiana Code § 35-50-2-7 requires the court to enter a judgment of conviction on a Level 6/Class D felony (meaning no reduction to a misdemeanor) if the court finds that either of the following applies:

• The defendant has already used alternative misdemeanor sentencing within the prior three years
• The offense at issue in the current petition is one of the following:
  • Domestic battery under Indiana Code § 35-42-2-1.3
  • Possession of child pornography under Indiana Code § 35-42-4-4(d)

The type of offense is not the only limitation. A court may also find its authority limited when compelled to deny an unverified or premature petition, too, as found in State v. Rovenstine.

There are times that a court has discretion and times a court does not. Keffer Hirschauer LLP litigators know that and will save you time and effort by looking at the circumstances of your individual case to determine if the court is going to be compelled to rule one way or another.

Indiana Code § 35-38-1-1.5: AMS by Agreement

Indiana Code § 35-38-1-1.5 is the other statutory provision that allows a court to enter a judgment of conviction of a Class A misdemeanor and a corresponding sentence for a Level 6 felony offense. This avenue of converting a conviction from a felony to a misdemeanor applies when the prosecutor agrees to the conversion to a misdemeanor.

To be eligible for alternative misdemeanor sentencing under this provision, the defendant must:

• Plead guilty to a Level 6 felony of the type that qualifies for consideration under the statute, and
• Agree to the conditions of the court

Further, the court, the prosecuting attorney, and the defendant all must consent to alternative misdemeanor sentencing.

In this situation, the court enters a judgment of conviction for the Level 6 felony but may later convert that conviction to a misdemeanor if the defendant has met all of the conditions imposed by the court at the time of the AMS agreement.

When Indiana Code § 35-38-1-1.5 Will Not Work

Alternative misdemeanor sentencing under Indiana Code § 35-38-1-1.5 is not a sure thing just because the court, the prosecuting attorney, and defendant agree, however.

First, timing matters. Except as provided elsewhere within the statute, Indiana Code § 35-38-1-1.5 limits a trial court’s authority to reduce a Level 6 felony conviction to a Class A misdemeanor to the moment of conviction and prior to sentencing. In other words, waiting until the sentence was underway or completed would be too late.

Next, the court has discretion. Even if the court previously established conditions for alternative misdemeanor sentencing, it may not convert a Level 6 felony to a Class A misdemeanor if, after a hearing, the court finds any of the following:

• The defendant has violated a condition set by the court
• The period that the court set for its conditions to be satisfied expires before the defendant completed the conditions

Further, the court may not convert the sentence to a misdemeanor if the defendant committed a new offense before the successful satisfaction of the conditions of the sentence or the term for completion of the conditions expired. And, even if the court finds that the defendant satisfied all statutory conditions for alternative misdemeanor sentencing under this statute, the court may deny the petition for other reasons.

Your Indiana misdemeanor attorney can help you make sure you are on track to meet the conditions of the court in order to obtain the conversion of your sentence and can help make sure your petition meets all of the requirements to give you the best result.

Additional Considerations for Indiana Alternative Misdemeanor Sentencing

Even experienced Indiana AMS petition attorneys have to constantly review the state of the law and know the intricacies of what statutes to use and what the limitations of those statutes are.

The use of Indiana alternative misdemeanor sentencing requires additional considerations when, for instance, a person’s driving privileges are in issue or the rights of a victim are raised. An Indiana AMS petition attorney knows how to account for all circumstances and how they impact a person’s petition for alternative misdemeanor sentencing. Your attorney can also help you maneuver through the various petition requirements such as verification. Each step in the process of pursuing an Indiana AMS petition requires careful adherence to the requirements of the statutes.

Additionally, timing can play a significant role in a request for alternative sentencing. Depending on your situation, Indiana alternative misdemeanor sentencing may be ordered at various stages:

• On the day of sentencing
• After completion of the sentencing

The timing of the filing of the petition is therefore important, too. A petition filed under Indiana Code § 35-38-1-1.5 is premature, by the clear mandate of the statute, if it is brought fewer than three years from the date a person completes a sentence, for example.

Start the Process of Securing Indiana Alternative Misdemeanor Sentencing

With extensive experience in securing Indiana alternative misdemeanor sentencing, Keffer Hirschauer LLP can help you with filing an Indiana AMS petition and your efforts in reducing a felony sentence.

The process of seeking alternatives to misdemeanor sentencing is complicated but does not have to be difficult when you have the help of an Indiana misdemeanor attorney.

Start your journey by reaching out to Keffer Hirschauer LLP today by calling (317) 857-0160 or by completing our online contact form.