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Indiana Sentence Modification Statute
If you’re currently serving a sentence for a criminal offense in Indiana, you may be eligible to request a sentence modification, but reducing your sentence isn’t a slam-dunk. The Indiana sentence modification statute, Indiana Code § 35-38-1-17, allows for sentence modification in certain situations, but deciphering the statutory language is not easy.
Questions about whether an offender is eligible for sentence modification, when to apply, or even how to apply make the process complicated to manage without help.
The Indiana criminal defense attorneys at Keffer Hirschauer LLP have extensive experience helping with sentence modification efforts. Working with criminal law attorneys who focus on criminal law, and sentence modification in particular, is crucial to increasing your chance of reducing or altering your sentence.
To determine your eligibility to modify your existing sentence, do not hesitate to contact an Indianapolis criminal defense lawyer from Keffer Hirschauer LLP right away.
Understanding the Indiana Sentence Modification Process
Indiana sentence modification is a separate and quite different process from a criminal appeal. Although both may feel like the same fight, the court involved, the available grounds that can affect a criminal sentence, and the procedures involved are quite different. While criminal appeals must be filed by strict deadlines, a sentence modification petition can be filed any time while an offender is serving a sentence. The rules may initially appear less stringent for sentence modifications, but this type of relief has its own strict set of requirements and limitations. And successful arguments require legal skill and experience not possessed by non-lawyers. Understanding how Indiana sentence modification works is the first step to finding the right sentence modification attorney to help.
Eligibility for Indiana Sentence Modification
Like many other statutes, the Indiana sentence modification statute begins by specifying who is and is not eligible for sentence modification. Not everyone is eligible under Indiana law. In particular, the right to request a modification does not apply to:
- 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) (with some exceptions), such as the following:
Anyone not specifically ineligible may request sentence modification, but there are no guarantees that the request will be granted.
The Sentence Modification Process
At first glance, the Indiana sentence modification process seems rather straightforward. Offenders seeking a reduction or change in terms of their sentences begin by filing the request in the trial court that issued the sentencing order. If the court sets the matter for a hearing, it notifies the prosecutor’s office, which in turn must give notice to the offender’s victim, if any. However, the court may rule on the sentencing modification request without a hearing in the following cases:
- The prosecutor has filed written agreement to the modification requested
- The offender has waived the right to be present when the court considers the request for sentence modification
The offender may request a modification of their sentence anytime during the term of his or her sentence. Offenders are not required to have preserved the right to request modification through some action at trial. So, although errors raised on appeal must have been preserved by timely objections at trial, offenders need not have previously argued any of the grounds asserted for a sentence modification.
Grounds for Sentence Modification
An offender may request a sentence modification on any of several grounds:
- There exists new information relevant to the underlying criminal case
- The sentence imposed was illegal or erroneous in some way
- The offender has completed rehabilitative or other self-improvement programs while serving the sentence
- The sentence imposed inflicts substantial hardship on the offender’s family
The court considers several factors in deciding a sentence modification request. Some of the factors include:
- Whether the statutory sentencing range has changed since the offender’s sentence was imposed
- The offender’s age
- Whether the offender is terminally ill
- Whether the offender suffers from any cognitive impairment
Regarding sentencing error or illegality, an offender may be granted a modification of sentence upon showing that the sentence imposed is in some way ambiguous, illegal, or does not match the sentencing transcript. The latter may 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. These cases are the most likely to prevail in a sentence modification request. However, an offender arguing for a sentence modification on the ground that the sentence was illegal could also end up with an even harsher sentence.
Successful completion of self-improvement or educational programs during incarceration is a common basis for a sentence modification request. Offenders sentenced to incarceration for the commission of an offense under state law may show rehabilitative efforts by participation in one or more programs offered by the Indiana Department of Correction (IDOC). The DOC offers programming in the following areas:
- Educational or employment
- Character improvement (reformative programming)
- Addiction treatment/recovery
- Support/treatment therapy
Arguing that the sentence imposed works a hardship on the offender’s family may be the hardest road to sentence modification. The removal of an offender from the family unit is likely to work a hardship on most loved ones. A court is likely to grant modification based on hardship only in very rare and unique cases.
For offenders serving a sentence under federal law, the federal sentencing statute, U.S. Code § 3582, lists factors that a judge can consider in imposing or modifying a sentence:
- The existence of extraordinary and compelling reasons (such as terminal illness)
- Whether the defendant is at least 70 years old and has served at least 30 years in prison (with some specific requirements)
- Whether the defendant is considered dangerous to other people or communities
Limitations on Indiana Sentence Modification
Although the process is clear-cut in many ways, the modification of a sentence is not just a matter of asking. The Indiana sentence modification statute also sets out limitations on sentence modification.
Prior to 2014, prosecutor consent was required for any Indiana sentence modification requested one year after sentencing. The “one year rule” has since been repealed, and now offenders may request a modification of sentence at any point in their sentences. Still, under Indiana Code § 35-38-1-17(j), an offender eligible for sentence modification may file a petition for sentence modification:
- Only one time in any 365-day period
- A maximum of two times during any consecutive period of incarceration
Sentence modification may also be barred in the case of a sentence imposed as a result of a plea bargain. Where an offender agreed in a plea bargain to serve a specific sentence, that sentence is not subject to alteration under the Indiana sentence modification statute.
The Effect of Sentencing Reform on Modifications
Changes in federal or state sentencing laws can also be a valid basis for a sentence modification. In some cases, an offender sentenced before the 2014 revisions to Indiana sentencing laws may have been given a longer sentence than would be imposed under the current law. In these cases, a modification may be warranted.
Indiana’s sentencing statutes were revised in 2014. The revisions shifted from a tiered sentencing scheme using letters to one using numbers. More significantly, some sentences for offenses changed under the new law. The new sentencing ranges under Indiana’s revised sentencing laws are as follows:
|Felony Level||Sentencing Range|
|Level 1 Felony||20 to 40 years with an advisory sentence of 30 years|
|Level 2 Felony||10 to 30 years with an advisory sentence of 17.5 years|
|Level 3 Felony||3 to 16 years with an advisory sentence of 9 years|
|Level 4 Felony||2 to 12 years with an advisory sentence of 6 years|
|Level 5 Felony||1 to 6 years with an advisory sentence of 3 years|
|Level 6 Felony||6 months to 2.5 years with an advisory sentence of 1 year|
Changes in federal law have also affecting sentencing. Relevant examples of changes in federal sentencing laws include:
- The United States Sentencing Commission’s Amendment 782 became effective on November 1, 2014, which reduced (by two levels) the offense levels for drug violations
- The Formerly Incarcerated Reenter Society Transformed Safely Transition Every Person Act (FIRST STEP) from 2018, detailed in a March 19, 2019, article by The Indiana Lawyer, may make prior sentencing reforms applicable retroactively or reduce drug sentences
What Does it Take to Get an Indiana Sentence Modification?
Working with a sentence modification attorney who knows the best arguments to make in your case is critical to increasing your chance of successfully modifying your sentence. The skilled Indiana criminal defense attorneys at Keffer Hirschauer LLP focus their practice on criminal law so they can ably advise you of the pros and cons of seeking a sentence modification, identify which grounds for modification may apply in your case, and make the strongest case for modification possible.
Offenders must start the process for sentence modification, but they should rely on experienced counsel to help them prepare their federal or Indiana sentence modification request. Whether you’ve recently been sentenced, served several years of a lengthy sentence, violated community correction, or violated of probation, the Indianapolis sentence modification lawyers at Keffer Hirschauer LLP can help you identify whether there are grounds for requesting a sentence modification, prepare all court filings, and represent you in court.
For more information, contact us today by calling (317) 857-0160 or use our online contact form for a free case evaluation.
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