How to Get a Sentence Modification in Indiana

Sentence Modifications after the 2014 Indiana Criminal Code Overhaul

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In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower look at sentence modifications. A sentence modification is a mechanism by which a person convicted of a crime can seek to have the length or placement of the sentence changed after some portion of his or her sentence has been completed.  For example, a person may seek to have a few years trimmed off of a sentence or to serve the remainder of a sentence in a work release program rather than prison.
Oftentimes both the convicted person and his or her family desire a modification.  The convicted person may have completed substantial programming while incarcerated that has aided in rehabilitating the person or may otherwise demonstrate that both the penal and rehabilitative goals of the sentence have been accomplished.  There may also be hardship upon the convicted person’s family which could be eliminated or lessened with a successful petition for modification.
Unfortunately, the law in Indiana has not made obtaining a modification easy for most persons convicted of crimes.  If more than 365 days have passed since the person was sentenced, approval of the prosecutor was required before the convicted person could even ask a court to consider a modification.  As expected, it was not with great frequency that prosecutors would agree to modifications.
But as part of the significant criminal code overhaul that took effect this year, the requirement that one have the consent of the prosecutor has been removed.  This means that one convicted of a crime can seek a modification of his or her sentence at any time during the sentence without the need for prosecutorial approval.  Accordingly, a court can now grant a sentence modification over the objection of the prosecutor.
Additionally, a plea agreement may no longer contain language waiving the right to seek a modification of sentence.  It was common for plea agreements to contain language waiving the convicted person’s right to seek a modification, and therefore the convicted person was stuck with the sentence imposed.  The Indiana General Assembly has now declared in statute that such waivers are invalid and unenforceable as against public policy.  Seeking to modify a sentence pursuant to a plea agreement is an endeavor that has its own challenges, but individuals whose crimes occurred after July 1, 2014 should no longer be compelled to waive their ability to seek modification.
While these significant hurdles have been removed from the sentence modification scheme, there are still limits on persons seeking modification.  First, a convicted person may seek only 1 modification in a 365 day period.  In addition, a convicted person may seek modification only 2 times during the entirety of the sentence.  These limits mean that it is important for a modification to be sought both thoughtfully and cautiously, and seeking the advice of an attorney is recommended.
While the changes to the procedure for seeking a modification seem straightforward, the issue currently facing convicted persons, attorneys, and judges is whether or not the changes apply to people sentenced before July 1, 2014.  The Indiana General Assembly has attempted to preclude the new sentencing scheme from applying retroactively and has specifically provided that the doctrine of amelioration shall not apply to benefit persons convicted of crimes (In a nutshell, this doctrine provides that if a new and more lenient sentencing scheme goes into effect before one is sentenced, the person is entitled to be sentenced under the more lenient statute).  This express statutory language, while seemingly straightforward, is not necessarily so.  Uncertainty still exists as to whether the legislature’s attempt to preclude retroactive application is effective.
Because the Indiana Court of Appeals and Indiana Supreme Court have not yet had the opportunity to address the issues raised above, practitioners and courts are left to construct their own interpretations of the statute.  There is no consensus among judges, among prosecutors, or even among defense attorneys as to whether or not the prohibition of waivers and elimination of prosecutorial approval apply to persons whose crimes were committed or whose sentences were pronounced before July 1, 2014.
Some uncertainty will exist for offenses occurring prior to July 1, 2014 until these issues are settled by the Indiana Court of Appeals and Indiana Supreme Court.  However, an attorney can evaluate the situation of you or a loved one and advise you as to your likelihood of success based upon the specific facts of your case and his or her understanding of the law regarding modification.
If you or a loved one would like to seek a sentence modification, contact the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower.  We will evaluate your situation for free during your initial consultation.  Our criminal defense attorneys are available 24 hours a day, 7 days a week to answer your questions.  Contact us at 317-870-0019 or at info@banksbrower.com.