Sentence Modification: Process, Requirements & Limitations
Once you are serving and/or were sentenced to a specific period, many people in society ask and wonder if there are any possible ways to reduce this specified time. Under Indiana law there is possible way to reduce this specified sentence time in certain situations. The controlling statute under Indiana law is I.C. §35-38-1-17. In general, I.C. §35-38-17 states and expresses all relevant aspects of sentence modification, the conditions associated to, and which offenders that sentence modification does not apply too. It should be noted that, even though the below examination of I.C. §35-38-1-17 may seem simple, the application and true understatement of it is more complex. The remaining part of the blog will hopefully provide a breakdown of key features for you, the reader, to know whether I.C. §35-38-1-17 applies to your given situation.
Modification is Separate from Appeal
Along with the difficulties with the language of the I.C. §35-38-1-17 the process of sentence modification maintains difficulties as well. Overall, it should be expressed that the modification process is a separate process from the general criminal appeal process. Though they may seem to be similar, the process, deadlines, requirements, and limitations between the two are different. The sentence modification process begins with the filing, of a request to reduce the sentence length, to the trial court that originally issued the sentencing order. At this point the court sets a hearing date to address this issue and it will notify the prosecutor’s office. In response the prosecutor’s office is required to notify any relevant victim(s). When the date of hearing comes to term, the prosecutor will present evidence in support of rejecting any sentence modification or in some cases in support if they believe modification is necessary. Whereas your lawyer will present evidences in support for a proper sentence modification. However, there are two situations in which the above-mentioned process is altered, and the sentencing court may rule on the petition for sentence modification without a hearing. The first is when the prosecutor has filed written agreement to the modification requested and the second is when the offender has waived the right to be present when the court considers the request for sentence modification.
On What Grounds?
The next reasonable question would be what are the valid grounds that one can use for a proper sentence modification. The grounds include: the exists of new information relevant to the underlying criminal case; the sentence imposed was illegal or erroneous in some way; the offender has completed rehabilitative or other self-improvement programs while serving the sentence; and the sentence imposed inflicts substantial hardship on the offender’s family. In addition to valid grounds to request a sentence modification the court will consider the following circumstances when they are relevant. These factors include but are limited to the following: whether the statutory sentencing range has changed since the offender’s sentence was imposed; the offender’s age; whether the offender is terminally ill; and whether the offender suffers from any cognitive impairment.
Additionally, there are three general bases that the Indiana’s court system has entertained as proper and/or valid justification for sentence modification. The first is the ligament showing that the sentencing of the offender was done in error or illegality. In general, to prove this, there needs to be evidence that the sentencing went against accepted statutes, done ambiguously, or went against the sentencing transcript. The second is the showing of successful completion of available self-improvement or educational programs while the offender is incarcerated. Typically, these programs are approved/offered through the Indiana Department of Correction (IDOC), which include but are not limited to educational or employment programs; character improvement (reformative programming); addiction treatment/recovery; support/treatment therapy. Lastly, the court will examine the overall hardship on the family that is associated to any aspect of the sentence modification.
Some Sentences Cannot be Modified
As mentioned above, sentence modification is only available to certain offenders. I.C. §35-38-1-17 provides a list of types of offenses that are not permitted for sentence modification:
- A credit restricted felon under Indiana Code §35-31.5-2-72, meaning someone convicted of certain child molesting offenses or murder
- A violent criminal convicted of any of the crimes listed in Indiana Code §35-38-1-17(d) (with some exceptions), such as the following:
- Attempted murder
- Voluntary manslaughter
- Involuntary manslaughter
- Reckless homicide
- Aggravated battery
- Certain sex-related crimes
- Higher levels of robbery
- Higher levels of burglary
- Unlawful possession of a firearm by a serious violent felon
In addition to offenders who do not qualify for sentence modifications, there also additional limitations for offenders who do qualify. These limitations include that an offender can only petition one time in any 365-day period and an offender can only petition for sentence modification a maximum of two times during any consecutive period of incarceration. Additionally, it should be noted that the ability to petition for a sentence modification may also be barred in the case of a sentence imposed as a result of a plea bargain. Meaning, that if your plea agreement specifies one to serve a specific sentence, that sentence is not subject to alteration under the Indiana sentence modification statute.
Overall, sentence modification is a complex and layered issue. However, with proper legal help it is a useful tool to help reduce the length an offender has to serve in prison.
If you have additional questions regarding your criminal case, contact Banks & Brower’s Indianapolis criminal defense lawyers, we can help defend your rights. Call our Indiana office today (317) 870-0019 .