The Habitual Offender Status in Indiana

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As many of you are aware, our General Assembly this year passed a comprehensive overhaul of our criminal code.  Some of the changes have been highlighted in previous blogs, and this week’s post takes a look at the habitual offender enhancement in its current form.

What is a habitual offender?

Habitual offender enhancements are used to increase the penalty for a given crime based on an individual’s criminal history.  The habitual offender enhancement must be proven by the State beyond a reasonable doubt if the person is convicted of the offense that gave rise to the enhancement being sought.  In some circumstances a defendant and his or her attorney may stipulate to the prior convictions existing to avoid the need for a separate “mini trial” in which the habitual offender status is proven.

Habitual offender enhancements exist for various circumstances.  All felonies can be subject to an enhancement, including misdemeanors enhanced to felonies, Title 9 offenses (traffic and BMV offenses), and drug offenses.  Drug offenses were formerly subject to the Habitual Substance Offender enhancement, but that enhancement has been repealed and all drug offenses now fall under the more general habitual offender statutes.

There are three categories under the new regime of Habitual offender enhancements: (1) Murder and Level 1-4 felonies, (2) Level 5 felonies, and (3) Level 6 felonies.  The qualifiers and sentences vary among each of these categories, and it is important for you and your attorney to know which enhancement you may face, if any.

  • Murder and Level 1-4 felonies: For an enhancement of a Murder or Level 1-4 felony charge, the accused must have two prior unrelated felony convictions.  However, only one of the two priors may be a Class D or Level 6 felony.  The enhancement in this category can be anywhere from 6 to 20 years on top of the sentence given for the underlying Murder or Level 1-4 felony conviction.
  • Level 5 felonies: For an enhancement of a Level 5 felony, the defendant must once again have two prior unrelated felony convictions.  Again, only one of the two priors may be a Class D or Level 6 felony.  In this category, however, less than 10 years must have elapsed between the defendant’s release from supervision on a sentence from a Class C, Class D, Level 5, or Level 6 felony and the commission of the current offense.  The enhancement on a Level 5 felony subjects the defendant to an additional 2 to 6 years in addition to the sentence imposed for the underlying Level 5 felony conviction.
  • Level 6 felonies: An enhancement for a Level 6 felony requires 3 (instead of 2 as in previous categories) prior unrelated felony convictions.  Like a Level 5 felony, the enhancement for a Level 6 felony requires that less than 10 years elapse between the individual’s release from supervision on a Class C, Class D, Level 5, or Level 6 felony and the commission of the current offense.  For a Level 6 felony enhancement, the additional sentence can range from 2 to 6 years.

Having explained the basics of the habitual offender enhancements, there are a few other issues that are important.  First, habitual offender sentences will attach to the highest level felony charged.  Therefore, if a defendant is charged with a Level 4 felony and a Level 6 felony, the Level 4 felony enhancement will apply (instead of the Level 6 enhancement) assuming the prior convictions exist to support it.

Next, if the underlying conviction is later set aside, the sentence will apply to the next highest felony.  Additionally, only convictions that are constitutionally invalid may be collaterally attacked during the habitual offender phase of proceedings.  And finally, the life without parole enhancement for habitual offenders has been repealed along with the habitual substance offender enhancement discussed above.

As you can see, Indiana’s version of a “three strike law” can result in significantly longer sentences for any felony conviction with the required priors.  It is extremely important for you to consult with an attorney who can explain the potential consequences of the underlying charge as well as the enhancement.  While the avenues of attack in the habitual offender phase may be somewhat limited, it is still important to have an attorney who can fight to mitigate the sentence that a conviction and enhancement together may produce.

If you are facing criminal charges with a habitual offender enhancement, contact the experienced Indianapolis Criminal lawyers at Banks & Brower, LLC.  Our Indianapolis criminal defense lawyers are available 24 hours a day, 365 days a year to answer your questions and protect your rights.  Reach us anytime at 317-870-0019 or at