One of the first questions we are often asked by clients charged with a crime is “How much potential jail time am I facing?” In Indiana, the Court has discretion to impose any permissible sentence within the Indiana criminal sentencing guidelines. However, there are some factors that affect sentencing. In this article, we are going to discuss the following:

  1. Sentencing Guidelines;
  2. Advisory Sentences;
  3. Aggravating & Mitigating Circumstances;
  4. Habitual Offenders; and
  5. Suspended Sentences.

Let’s start with a look at the sentencing guidelines. In our next article, we will look at Credit Time and how that affects and reduces your sentencing. Then we will look at Indiana’s Alternative Misdemeanor Sentencing (“AMS”) and how that can reduce a felony conviction to a misdemeanor either before or after sentencing.

SENTENCING GUIDELINES

In July of 2014, Indiana enacted changes to the Indiana Criminal Code. The prior sentencing classification system of A-D felonies were replaced with six classes of felony crimes, defined as Level 1 – Level 6. Level 1 felonies are the most severe. There are three classes of misdemeanors, A-C. A misdemeanors are the most severe. The following tables show the range of time for each level felony and misdemeanor class, the advisory sentence, and the potential fine:

INDIANA FELONY SENTENCING GUIDELINES CHART

Level Sentence Range (Min. – Max.) Advisory Sentence Potential Fine
Murder 45 years – Death 55 years $0 – $10,000
Level 1 Felony 20 years – 40 years 30 years $0 – $10,000
Level 2 Felony 10 years – 30 years 17.5 years $0 – $10,000
Level 3 Felony 3 years – 16 years 9 years $0 – $10,000
Level 4 Felony 2 years – 12 years 6 years $0 – $10,000
Level 5 Felony 1 year – 6 years 3 years $0 – $10,000
Level 6 Felony 6 months – 2.5 years 1 year $0 – $10,000

 

INDIANA MISDEMEANORS SENTENCING GUIDELINES CHART

Class Sentence Range Potential Fine
Class A Misdemeanor 0 days – 1 year $0 – $5,000
Class B Misdemeanor 0 days – 180 days $0 – $1,000
Class C Misdemeanor 0 days – 60 days $0 – $500

WHAT IS AN ADVISORY SENTENCE?

As is obvious from the charts above, there is a big range in Indiana’s sentencing guidelines. It also raises questions for many clients. How does a judge determine if a sentence is going to be 3 years or 16 years for a Level 3 felony? Also, what does “advisory sentence” mean?

The Indiana Code defines an “advisory sentence” as a guidelines sentence that the court may voluntarily consider when imposing a sentence. IC 35-50-2-1.3. In other words, except in certain circumstances, the court does not have to follow the advisory sentence. However, in practice, it usually serves as a starting point for sentencing. The judge can then sentence a defendant to more or less time depending on aggravating or mitigating circumstances. Let’s look at some of those circumstances:

AGGRAVATING CIRCUMSTANCES AFFECTING SENTENCING

Indiana Code 35-38-1-7.1 provides the following eleven (11) factors a court may consider as aggravating circumstances, which may lead the court to impose a sentence greater than the advisory sentence:

(1) The harm, injury, loss, or damage suffered by the victim of an offense was (A) significant and (B) greater than the elements necessary to prove the commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
(4) The person: (A) committed a crime of violence (IC 35-50-1-2) and (B) knowingly committed the offense in the presence or within hearing of an individual who (i) was less than eighteen (18) years of age at the time the person committed the offense and (ii) is not the victim of the offense.
(5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.
(6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.
(7) The victim of the offense was a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability, or the victim mentally or physically infirm.
(8) The person was in a position having care, custody, or control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
(11) The person committed trafficking with an inmate under and is an employee of the penal facility.

MITIGATING CIRCUMSTANCES AFFECTING SENTENCING

Indiana Code 35-38-1-7.1 provides the following 11 factors a court may consider as mitigating circumstances, which may lead the court to impose a sentence less than the advisory sentence:

(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or short term imprisonment.
(8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.

HOW ARE THE CRIMINAL SENTENCING GUIDELINES AFFECTED BY A HABITUAL OFFENDER ENHANCEMENT?

Indiana Code 35-50-2-8 describes the requirements and sentencing enhancements for “habitual offenders”. Under this code, the State may seek to have a person sentenced as a habitual offender for a felony by alleging that the person accumulated the required number of prior unrelated felony convictions in a certain time period. The sentencing enhancements range from two (2) years to (20) years. The enhancements are non-suspendable. (See below for a discussion of suspendable sentences)

Level 1 – Level 4 Felonies

A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the state proves beyond a reasonable doubt that:

  • the offender has been convicted of two (2) prior unrelated felonies; AND
  • at least one (1) of the prior unrelated felonies is not a Level 6 or a Class D felony.

The court will sentence a person found to be a habitual offender to an additional fixed term that is between six (6) and (20) years, for a person convicted of murder or a Level 1 through Level 4 felony.

Level 5 Felony

A person convicted of a Level 5 felony is a habitual offender if the state proves beyond a reasonable doubt that:

    • the person has been convicted of two (2) prior unrelated felonies; AND
    • at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D Felony; and
    • if the person is alleged to have committed a prior unrelated
      • Level 5 felony;
      • Level 6 felony;
      • Class C felony; or
      • Class D felony;
  • Not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.

The court will sentence a person found to be a habitual offender to an additional fixed term that is between two (2) and six (6) years, for a person convicted of a Level 5 felony.

Level 6 Felony

A person convicted of a Level 6 felony is a habitual offender if the state proves beyond a reasonable doubt that:

  • the person has been convicted of three (3) prior unrelated felonies; AND
  • if the person is alleged to have committed a prior unrelated
    • Level 5 felony;
    • Level 6 felony;
    • Class C felony; or
    • Class D felony;
  • Not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.

The court will sentence a person found to be a habitual offender to an additional fixed term that is between two (2) and six (6) years, for a person convicted of a Level 6 felony.

CAN I HAVE MY SENTENCE SUSPENDED?

Even if a judge sentences you pursuant to the criminal sentencing guidelines, a judge can suspend all or part of the sentence of a convicted person. This means the sentence, or a portion of the sentence, is not served in jail, but served on probation. There is no credit time for probation, so a person order to probation for a year, will serve a full year on probation. Misdemeanors are always suspendable; however, the Indiana Code 35-50-2-2.2 places some limitations on suspended sentences for felony convictions:

(a)  Except as provided in subsection (b), (c), or (d), the court may suspend any part of a sentence for a felony.

(b)  If a person is convicted of a Level 2 felony or a Level 3 felony, except a Level 2 felony or a Level 3 felony concerning a controlled substance under IC 35-48-4, and has any prior unrelated felony conviction, the court may suspend only that part of a sentence that is in excess of the minimum sentence for the:

  • (1)  Level 2 felony; or
  • (2)  Level 3 felony.

(c)  If:

  • (1)  a person has a prior unrelated felony conviction in any jurisdiction for dealing in a controlled substance that is not marijuana, hashish, hash oil, salvia divinorum, or a synthetic drug, including an attempt or conspiracy to commit the offense; and
  • (2)  the person is convicted of a Level 2 felony under:
    • (A)  IC 35-48-4-1 and the offense involves the:
      • (i)  manufacture;
      • (ii)  delivery; or
      • (iii)  financing of the manufacture or delivery;
        of heroin; or
    • (B)  IC 35-48-4-1.1;
  • the court may suspend only that part of a sentence that is in excess of the minimum sentence for the Level 2 felony.

There are additional restrictions on suspension of sentences of persons with juvenile records in IC 35-50-2-2.1 that we will address in the future.

Remember, just because a conviction is technically suspendable, does not mean that a judge “must” suspend any of, or even part of, your sentence. The language of the statute uses the word “may”, meaning the discretion is left with the judge. The judge will likely consider the aggravating and mitigating factors in determining if any portion of a sentence should be suspended.

Schedule a Free Consultation with an Indiana Criminal Defense Attorney

As you can see, Indiana’s criminal sentencing guidelines are just the start.  There are a lot of variables that can affect your potential criminal sentence. Avnet Law understands the issues and can advise you regarding your criminal law legal issues. Call 1-877-77-AVNET to Schedule a Free Consultation with an Indiana Criminal Defense Attorney Today or contact us below with any additional questions you may have about the Indiana Criminal Sentencing Guidelines.

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