Sentencing Enhancements in Indiana Criminal Cases
Most people are aware that any given criminal offense carries with it a range of possible penalties, including jail or prison time. For example, a Level 3 felony conviction carries the possibility of 3 to 16 years in prison. What may come as a surprise, especially to one charged with a serious felony offense, is that the prosecutor can file a sentencing enhancement which can significantly increase the amount of time to which one is sentenced. In our blog here the Indianapolis Criminal Defense Attorneys at Banks & Brower look at sentencing enhancements.
While a sentencing enhancement is not an actual criminal charge, it is “charged” on a separate piece of paper along with the accompanying criminal charges filed by the prosecutor. If imposed, a sentencing enhancement is also not a separate sentence, as it only increases the sentence for the charge to which it attaches. Indiana has codified quite a few enhancements which can attach in differing circumstances, and below are some of the enhancements along with the possible impact on someone facing the enhancement. (For a discussion of the general Habitual Offender Enhancement, see our previous blog on that topic)
Criminal Gang Enhancement
If the State can show beyond a reasonable doubt that a person convicted of a felony “knowingly or intentionally was a member of a criminal gang while committing the offense; and committed the felony offense at the direction of or in affiliation with a criminal gang, or with the intent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasing the person’s own standing or position with a criminal gang,” the person may be subjected to the criminal gang enhancement.
So by how many years will the sentence be enhanced? It depends on the underlying felony conviction and sentence. The court must impose an additional fixed term of imprisonment equal to the longest sentence imposed for the underlying felonies (or equal to the sentence for the underlying felony if there is only 1 underlying felony). This means that a person subject to the criminal gang enhancement who is sentenced to 9 years on a Level 3 felony will have his or her sentence increased to 18 years because of the enhancement! And, the enhancement’s additional years may not be suspended. Thus, the criminal gang enhancement is quite significant.
Firearm Enhancements
A person who commits an offense against a person which results in death or serious bodily injury, kidnapping, or criminal confinement (as a Level 2 or 3 felony) and who knowingly or intentionally used a firearm in the commission of the offense is subject to the firearm enhancement. If the State proves the enhancement beyond a reasonable doubt, the person may be sentenced to an additional fixed term of imprisonment from 5 to 20 years.
If a person commits a misdemeanor or felony (other than those in the preceding paragraph) and in doing so knowingly or intentionally points or discharges a firearm at a police officer (or someone the person should have known was a police officer), the person may be sentenced to an additional fixed term of imprisonment from 5 to 20 years.
If a person is found to have committed a dealing offense, an additional term of imprisonment may apply for certain simultaneous firearms offenses. If the State can show that the person knowingly or intentionally used a firearm or possessed a handgun without a license, possessed a sawed-off shotgun in violation of federal law, or possesses a machine gun during the dealing offense, the court may impose an additional fixed term of imprisonment. Generally, the enhancement can be up to 5 years, but it can go up to 10 years if the firearm was a sawed-off shotgun or 20 years if the gun was equipped with a silencer or muffler.
Habitual Vehicular Substance Offender
A person with 2 or more prior unrelated vehicular substance offenses may face an enhancement because of those priors. If only 2 priors are alleged, at least 1 of the priors must have occurred within 10 years before the date of the current offense. If the person has 3 or more priors or 2 priors with at least one of them occurring within the 10 years before the new offense, the person may be sentenced to an additional term ranging from 1 to 8 years if the State proves the person is subject to the enhancement.
Repeat Sexual Offender Enhancement
If a person charged with a felony sex offense has at least 1 prior unrelated conviction for a sex offense, the person may be sentenced to an additional fixed term equal to the advisory sentence for the underlying offense. However, the additional sentence may not exceed 10 years.
Murder Causing Termination of Pregnancy Enhancement
A person may be subject to this enhancement if, while committing or attempting to commit murder, the person causes the termination of a human pregnancy. This enhancement can range from 6 to 20 years and runs consecutively to the underlying sentence. Additionally, it does not matter whether or not the person committing or attempting to commit the murder knew or should have known of the pregnancy! It is also not a defense that the person did not intend to cause termination of the pregnancy.
Each of these enhancements can result in a much longer sentence than the underlying offense itself could. Because of the potentially high number of years involved, anyone facing criminal charges who may be subject to an enhancement should talk to an attorney. The experienced Indianapolis criminal defense attorneys at Banks & Brower, LLC can evaluate your case and advise you as to the possible sentence you may face with or without a sentence enhancement. Get in touch with one of our attorneys 24/7 at info@banksbrower.com or (317) 870-0019.