Indiana Sentence Modification

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:
  • Murder
  • Attempted murder
  • Voluntary manslaughter
  • Involuntary manslaughter
  • Reckless homicide
  • Aggravated battery
  • Kidnapping
  • Certain sex-related crimes
  • Higher levels of robbery
  • Higher levels of burglary
  • Unlawful possession of a firearm by a serious violent felon

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.