A sentence for a criminal offense can be either executed or suspended. When a sentence is suspended, some or part of the sentence is typically served on probation, but the defendant is otherwise free to travel within the state. Crimes that are eligible to be suspended at sentencing are often referred to as “suspendible” offenses. If a defendant is convicted of a crime that is not eligible to be suspended at sentencing, the crime is often referred to as “non-suspendible.” If the defendant is convicted of a non-suspendible offense, they must serve an executed sentence.
There are four different placements for serving an executed sentence, or a sentence in which the defendant is confined and not free to leave without permission. The least restrictive placement for an executed sentence is home detention, commonly known as house arrest. The next least restrictive placement for an executed sentence involves the defendant living at a work release facility. The remaining two locations in which to serve an executed sentence are at the county jail or at a state prison.
The statute that governs home detention sentences is IC 35-38-2.5. Per this statute, the court can either 1) Enter a home detention order as a condition of probation under IC 35-38-2.5-5, or 2) Order home detention as a direct commitment to Community Corrections under IC 35-38-2.6.
Home Detention as a Condition of Probation under IC 35-38-2.5-5
Anyone charged with any suspendible felony or any misdemeanor is eligible to be sentenced to home detention as a condition of probation. However, the period of home detention ordered as a condition of probation cannot exceed the minimum term of imprisonment for that specific felony or the maximum term of imprisonment for that specific misdemeanor. For example, if someone is sentenced to home detention for burglary, a level 4 felony, the maximum amount of home detention that that individual could receive as a condition of probation is 2 years, which is the minimum sentence for a level 4 felony. If a person is sentenced to home detention for reckless driving, a class b misdemeanor, the home detention portion of the sentence could not exceed 180 days, which is the maximum term of imprisonment for a class b misdemeanor.
Home Detention as a Direct Commitment to Community Corrections under IC 35-38-2.6
IC 35-38-2.6 specifically applies to non-suspendible felonies. This statute also specifically states that certain felonies are not eligible for direct placement into community corrections under IC 35-38-2.6-1. The specific crimes listed are:
- Sex crimes under IC 35-42-4 or IC 35-46-1-3
- Battery with a deadly weapon or battery resulting in serious bodily injury
- Criminal confinement with a deadly weapon
- Robbery with a deadly weapon or robbery resulting in serious bodily injury
- Arson for hire resulting in serious bodily injury
- Burglary resulting in serious bodily injury
- Resisting law enforcement with a deadly weapon
- Escape with a deadly weapon
- Rioting with a deadly weapon
- Aggravated battery
- Disarming a law enforcement officer
- Operating a motor vehicle while intoxicated causing serious bodily injury or death.
If an individual is convicted of any of the above crimes, the individual is not eligible to be sentenced directly to community corrections under IC 35-38-2.6. As mentioned above, this statute only applies to certain non-suspendible felonies. Which felonies are non-suspendible?
All misdemeanors, and all level 4, level 5, and level 6 felonies are suspendible. This means that no matter a person’s criminal history, or the type of offense of the misdemeanor, the level 4, level 5, or level 6 felony, the court may suspend all of the individual’s sentence and place the individual on probation. Therefore, no person convicted of a misdemeanor, a level 4, a level 5, or a level 6 felony should be directly committed to community corrections via IC 35-38-2.6. The only persons that should be sentenced to community corrections under IC 35-38-2.6 are those convicted of a level 2 or a level 3 felony that is non-suspendible. What makes a level 2 or a level 3 felony non-suspendible? If the individual has a prior, unrelated felony conviction other than a conviction for a felony involving marijuana, hashish, hash oil, or salvia divinorum, they are non-suspendible if convicted of a level 2 or level 3 felony. Clearly, it is a very limited population that IC 35-38-2.6 applies to. When someone is sentenced to home detention under IC 35-38-2.6, there is an additional requirement that the court issue an order listing several conditions that the defendant must abide by. This is important as it relates to Russel v State.
In Russel, the defendant had previously been convicted of a misdemeanor offense and was sentenced as a direct commitment to home detention. See the problem? Because all misdemeanors are suspendible offenses, the defendant should have been ordered to home detention as a condition of probation. That is the only legal mechanism available for the court to sentence a defendant to home detention when the defendant is convicted of a crime that is suspendible. The issue arose in Russell when the defendant was charged with escape after violating home detention. The escape statute requires a violation of a home detention order, which only applies to those sentenced to home detention as a direct commitment per IC 35-38-3.6. Because the defendant in Russell was not eligible to be sentenced as a direct commitment to home detention under IC 35-38-2.6, and should have been sentenced to home detention as a condition of probation under IC 25-38-2.5-5, the court ordered a dismissal of the escape charge.
Clearly, the sentencing statutes in Indiana are extremely technical and can become very complicated. Contact the experienced attorneys at Banks & Brower anytime at 317-870-0019 or at firstname.lastname@example.org if you or anyone you know is facing a criminal offense.