Alternative Misdemeanor Sentencing

Alleviating the Sting of a Felony Conviction

Everyone knows that being convicted of a felony is one of the most difficult things a person can deal with in their life. Besides the fact that you can face hefty jail sentences, fines, and court ordered restrictions, there are other consequential impacts that many never think about — and most of the time they begin after you complete your sentence or court ordered requirements.

After all, the word “felony” carries a very harsh stigma, a dark cloud that follows you for life, and people dread facing it — and rightfully so. Moreover, a felony can limit where you can live, if you can vote, and if you can own a firearm. It probably will impact your relationship with your current employer, but most certainly, it will affect your ability to gain future employment. Enough of the bad news, right?

So what can you do about it? The experienced Indianapolis Criminal Defense Attorneys at Banks & Brower can help. Whether you are on the front end of an investigation, in the middle of plea negotiations, or post-conviction, you might be surprised to learn that you may be entitled to have your felony reduced to a misdemeanor. Yep. That’s right. A misdemeanor. The legal community commonly refers to this legal mechanism as Alternative Misdemeanor Sentencing, or AMS. There are two main sections of the Indiana Code that deal specifically with your ability to do just that. Those two sections are IC 35-50-2-7 & IC 35-38-1-1.5.

IC 35-50-2-7: AMS BY COURT ORDER OR BY PETITION

DURING SENTENCING:
During the sentencing phase of a criminal case, this particular statute allows the court to consider, on its own accord, entering a judgment of a Class A misdemeanor, even if the alleged crime was originally charged as a Level 6 felony. All the court must do, according to the rules, is state the reasons on the record for why they believe a Class A misdemeanor is appropriate in the given circumstance.
However, the court cannot enter the judgement as a Class A misdemeanor if it finds that:
(1) the person being sentenced has already received a misdemeanor treatment for a prior, unrelated Level 6 Felony (or class D felony) conviction, and that sentencing was within 3 years of the new offense (or simply put, that person received AMS already within the past 3 years);
(2) the current allegations involve domestic battery as a Level 6 felony under IC 35-42-2-1.3;
(3) the current allegation is for possession of child pornography under IC 35-42-4-4(c)
POST-SENTENCING – BY PETITION:
There is also a mechanism for relief post-conviction/sentencing. In fact, after receiving a verified petition for alternative minimum sentencing, the court can set a hearing with the prosecutor and counsel for the defense to discuss the appropriateness of AMS.  During that hearing, the court may grant AMS if it finds the following criteria listed in the statute have been met:
(1) The defendant is not a sex/violent offender under IC 11-8-8-5
(2) The defendant was not convicted of a Level 6 felony that resulted in bodily injury to another person.
(3) The defendant has no prior convictions for perjury under IC 35-44-2-1 or official misconduct under IC 35-44-1-2.
(4) At least three (3) years have passed since the defendant: (A) completed their sentence; and (B) satisfied all obligations ordered by the court during sentencing;
(5) The defendant has not been convicted of a felony since: (A) completing their sentence; and (B) satisfied all obligations ordered by court during sentencing
(6) The defendant has no pending criminal charges.
So long as the defendant doesn’t pick up a new case within the 5 years post-conviction, the A misdemeanor stands if granted. However, if they do pick up a new case during that time period, the prosecutor can petition to have the Level 6 felony reinstated.

 IC 35-38-1-1.5 BY AGREEMENT BY THE PARTIES

This section was intended for those cases where parties to a criminal case (the prosecutor, defendant, and defense counsel) have come to an agreement that initially calls for a judgment of a Level 6 felony. And, so long as the defendant completes the terms of the plea agreement and successfully completes all aspects of the court’s orders, the judgement is subsequently reduced to an A misdemeanor. Or, the parties can agree to this during the sentencing phase of a criminal case not resolved by plea.

However, the court has discretion to deny entry of AMS, even if the parties have previously agreed to it, if it finds the following after a hearing on the matter:

(1) the defendant has violated an order or condition of the court
(2) the defendant fails to complete all the terms of the agreement/orders of the court within the allotted time frame laid out by the court.

However, the court cannot grant AMS if the defendant commits a new offense within the court’s allotted timeframe for completing the terms of sentencing

In the end, whether you have been convicted, are thinking about pleading guilty, or are about to be sentenced, it’s important to understand your rights to have your D felony conviction entered as an A misdemeanor. The experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC is a firm formed by two former prosecutors who have a firm and solid understanding of how AMS works, and our firm is here to provide you the tools you need to ease the sting of your current or former arrest.