Indiana Modification of Placement vs Sentence Modification
One question that is repeatedly asked by individuals incarcerated in Indiana is, “What is an Indiana modification of placement?” This phrasing does have some legal relevance; however, it is not its own process. Modification of placement is simply just one element of a broader request called an Indiana sentence modification, which covers the several elements making up an entire sentence. Under Indiana Code 35-38-1-17, sentence modification may allow you to reduce and/or alter the placement of your sentence. However, the process of filing a request for sentence modification can be exceedingly difficult to manage on your own. Therefore, choosing to work with an experienced criminal defense lawyer will be crucial to increasing your chance of reducing or altering your sentence.
If you are interested in sentence modification, the Indiana modification lawyers at Keffer Hirschauer LLP can help you better understand your eligibility for sentence modification and answer any questions you may have about filing a request. Want to learn more about your situation? Set up a free consultation with a criminal defense lawyer at Keffer Hirschauer LLP today.
What is an Indiana Modification of Placement?
As noted, an Indiana modification of placement is simply one element of a sentence modification. However, a placement modification is an alteration to the manner in which a criminal sentence is served. Placement modification has nothing to do with the duration of your sentence, and it’s critical to understand that distinction. Failing to do so may further complicate your understanding of the already difficult statutory language used to outline the requirements and limitations of sentence modification.
Example of a Sentence Modification Which Addresses Placement: You may file a sentence modification request to the trial court that issued your sentencing order requesting that you serve the remainder of your sentence in a community corrections program, like work release or home detention. If granted modification, this would alter your placement, though it would technically be referred to as a sentence modification in Indiana.
What is Sentence Modification?
In a general sense, sentence modification is a legal term used to describe the process of reducing or altering your sentence. If you’re currently incarcerated in Indiana for a criminal offense, you may be eligible to reduce your sentence or modify your placement. If your placement is modified, the supervision of your sentence will be transferred from a Department of Corrections facility to one of these entities:
- Community corrections program
- Work release
- Home detention
- The court
Although a sentence modification might sound like a criminal appeal, it is a vastly different process. Sentence modifications involve entirely different courts, legal justifications, and procedures. The timelines are also quite different. In contrast to criminal appeals, there are no strict deadlines when filing a sentence modification request, unless convicted of crimes listed in Indiana Code 35-31.5-2-72 or Indiana Code 35-38-1-17(d). For most criminal offenses, the only constraint is that, while you can file a request at any time during your sentence, you cannot file more than two requests for a single sentence.
How Do You Qualify for a Sentence Modification in Indiana?
Indiana Code 35-38-1-17, the statute which governs sentence modification in Indiana, clearly specifies who is eligible and who is not eligible for sentence modification. Specifically, those who are not eligible to file a request for modification include:
- A credit restricted felon under Indiana Code 35-31.5-2-72, meaning someone convicted of certain child molesting offenses or murder
- A violent criminal convicted of any of the crimes listed in Indiana Code 35-38-1-17(d)
- Attempted murder
- Voluntary manslaughter
- Involuntary manslaughter
- Reckless homicide
- Aggravated battery
- Certain sex-related crimes
- Higher levels of robbery
- Higher levels of burglary
- Unlawful possession of a firearm by a serious violent felon
If you are currently serving a sentence for a criminal offense not listed above or committed a crime listed above between June 30, 2014, and May 15, 2015, you may file a petition for sentence modification. However, just because you file a petition for modification does not mean it will be granted. Therefore, it would be wise to retain the services of a modification lawyer in Indiana. If you would like to speak with a lawyer today, contact Keffer Hirschauer LLP or call us at 317-751-7186 to begin exploring your sentence modification options.
What is the Sentence Modification Process?
The Indiana sentence modification process begins with an offender filing a request in the trial court that issued the sentencing order. This request may be a reduction or change in terms of their sentence, which may include an Indiana modification of placement. The court then may elect to set the matter for a hearing, in which case, it notifies the prosecutor’s office, who then must give notice to the offender’s victim(s), if applicable. In some cases, the court may rule on the sentencing modification request without a hearing. This can happen in the following cases:
- The prosecutor has filed a written agreement to the modification requested
- The offender has waived the right to be present when the court considers the request for sentence modification
What Circumstances Allow for Indiana Sentence Modification?
If you have been convicted of a criminal offense in Indiana, not listed in Indiana Code 35-31.5-2-72 or Indiana Code 35-38-1-17(d) (with some exceptions), you may file a request for sentence modification twice at any time during your term, as long as the filings are 365 days apart, on any of the grounds listed below.
Grounds for Sentence Modification
- New, relevant information exists relating to your underlying criminal case
- The sentence imposed upon you was illegal or erroneous in some manner
- You have completed rehabilitative or other self-improvement programs while serving your sentence
- Your sentence inflicts substantial hardship on your family
Illegal or Erroneous Sentence
In requests based on the grounds of sentencing error or illegality, you can be granted a modification of sentence if your attorney can show that the sentence imposed upon you is in some way ambiguous or illegal. You can also be granted a sentence modification if the sentence does not match the sentencing transcript. This can occur if the abstract of judgment does not match the transcript or written order from the sentencing hearing or if the sentence imposed does not comply with the statute. While these cases are most likely to succeed, they are particularly rare as sentencing errors are usually addressed shortly after sentencing by diligent trial counsel.
Rehabilitative or Self-Improvement Programs
Demonstrating participation in and/or completion of one or more of the rehabilitative programs offered by the Indiana Department of Correction (IDOC) is also a common basis for sentence modification requests. The IDOC offers programming in the following areas:
- Educational or employment
- Character improvement (reformative programming)
- Addiction treatment/recovery
- Support/treatment therapy
Court Considerations in Sentence Modifications
When hearing a request for sentence modification, courts have their own set of considerations that they take into account when evaluating whether to grant the request. In Indiana, the court will consider your age, health, and cognitive impairment (Are you terminally ill? Showing signs of dementia?). The court will also consider whether the statutory sentencing range has changed since your sentence was first imposed. This is especially relevant since the state of Indiana revised its criminal code, IC 35, in 2014. This revision changed the sentence for some offenses, and therefore, it is a common consideration in sentence modifications. If you were convicted of a crime prior to the 2014 change, and are still serving your sentence, you should speak with an Indiana sentence modification lawyer to better understand if your sentence may have been altered by Indiana’s new sentencing laws.
Limitations on Indiana Sentence Modification
Although the sentence modification process is straightforward, modifying your sentence is not just a matter of asking. Indiana sentencing modification statutes have some limitations on how frequently you can file a request and how many requests you may file.
Before the 2014 revisions to criminal code, the prosecutor’s consent was required for any Indiana sentence modification requested one year after sentencing. That rule has since been repealed. Today, if you are a non-violent offender, you may request a modification to your sentence at any point in your incarceration. There are some additional limits that apply though. This includes filing one petition per 365-day period and a maximum of two petitions during the entirety of your incarceration.
If you are convicted of a violent crime listed in Indiana Code 35-31.5-2-72 or Indiana Code 35-38-1-17(d) (with some exceptions), then you are still subject to the 365-day rule. You must wait until the end of that period before filing for a sentence modification. Additionally, if you are a violent offender who is eligible to file, your modification would require the prosecutor’s approval.
Correspondence with Judges and Motion for Modification
It is important for you to know that courts can deem correspondence with judges as pleadings to your court file. Therefore, asking questions about modification or phrasing questions in a certain manner could lead to that correspondence being considered a motion for modification. In some cases, individuals have been caught by surprise when they’re told that they must wait until their next 365-day period to file a request for modification. In more serious cases, individuals who corresponded with a court were pained to find out that they were no longer eligible to petition the court for a modification request, as they had used their two available petitions while partaking in correspondence with a court.
Plea Bargains and Limitations for Sentence Modifications
When it comes to a fixed plea bargain, there are some limitations for sentence modification. If your plea bargain stated that you must serve a specific sentence, that sentence does not qualify for alteration without prosecutor approval. This means you will have to serve the entirety of the fixed sentence, as laid out in your plea agreement. If the language in your plea bargain is not fixed, meaning it contains words like “up to,” or leaves aspects of the sentence up to the court, then you may qualify for a sentence modification. However, the wording in plea bargains can be difficult to interpret and it would be in your best interest to work with an attorney who can help you figure out whether you are eligible to file a petition for sentence modification in Indiana.
Considering Filing an Indiana Sentence Modification Request?
Whether you are preparing to file an Indiana sentence modification request, making the strongest case possible will require a high-level of legal experience and skill. The Indiana criminal defense attorneys at Keffer Hirschauer LLP are experts in criminal law and sentence modification. They can help you weigh out the pros and cons of seeking sentence modification, identify the grounds for which it may apply to your case, and in the end, can increase your chance of a successful sentence modification.
Ready to begin working on your sentence modification? Set up a free consultation with Keffer Hirschauer LLP today, or give us a call at 317-751-7186.