Consecutive vs. Concurrent Criminal Sentencing

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I.C. 35-50-1-2

When Defendants are sentenced in criminal cases often there are multiple counts as part of the same case and/or multiple cases being wrapped up all at once. Whether it be by plea agreement or post-conviction at trial, the issue of consecutive (one after the other) or concurrent (running together) sentencing is often raised and becomes important.

According to IC 35-50-1-2, generally speaking, unless the parties are in agreement to the contrary as part of a plea or agreed sentencing, the following hardline rules apply:

  1. If you are out on bond on one offense and you are arrested on another offense, those separate offenses and subsequent sentences must be served mandatorily consecutive
  2. If a gun was used in the commission of the offense, the crimes must be consecutive
  3. If you are convicted of a “crime of violence,” the sentences must be consecutive
    • Those include: Murder, attempted murder, voluntary manslaughter, involuntary manslaughter, reckless homicide, battery (L2-5), domestic battery (L2-5), aggravated battery, kidnapping, rape, criminal deviate conduct, child molesting, sexual misconduct as a L1 or L2, robbery as a L2 or L3, burglary as a L1 – L4, OVWI causing death or catastrophic injury, OVWI causing SBI, child exploitation at L4 or L5, resisting law enforcement as a felony, firearm possession by serious violent felon, and/or strangulation as a L5.
  4. If you are charged with multiple charges as part of the same course of conduct or case (“a connected series of offenses that are closely related in time, place, and circumstances”), the sentences cannot be run consecutively

While not always the case, typically Defendants and their counsel push hard and hope for concurrent sentencing, while prosecutors strive for lengthier, stacked sentences. While plea agreements often spell out how multiple convictions will be handled (concurrent or consecutive), the issue becomes a much larger deal when a defendant is convicted after trial or pleads open and the court decides their fate on separate crimes.

The benefit of concurrent sentences are obvious: the punishments for multiple offenses are being served at the exact same time rather than separately, and if the defendant violates the terms of his sentence, he serves the sanctions for the multiple offenses all at the same time as well. For lack of a better analogy, it’s like buy one get one free. Multiple instances of bad conduct are treated the same from a punishment perspective rather than stand alone.

Clearly, consecutive sentencing is the anthesis of this. Each crime stands alone. A violation of one is a sanction for all consecutive sentences, each running after another. So, for example, if you violate probation on day one of Count I and you are serving 4 separate sentences consecutively, you are also violating Count IV as well. Some think that isn’t fair because Count IV hasn’t even started yet, but, alas, that’s the law. The same goes for separate cases running consecutively. That’s why lawyers fight over concurrent vs. consecutive sentencing. 

As stated above, the governing statute that addresses this issue is IC 35-50-1-2. It lays out that after a judge has determined that the sentences will be consecutive, and after considering the aggravating and mitigating circumstances, the judge is constrained to certain guidelines for what is stackable, what isn’t, and how much things can be stacked. Stackable sentences are limited as follows:

If the most serious crime for which the defendant is sentenced is a:

  1. L6, the most that can be added on top of the L6 maximum sentence is 4 years
  2. L5, the most that can be added on top of the L5 maximum sentence is 7 years
  3. L4, the most that can be added on top of the L4 maximum sentence is 15 years
  4. L3, the most that can be added on top of the L3 maximum sentence is 20 years
  5. L2, the most that can be added on top of the L2 maximum sentence is 32 years
  6. L1, the most that can be added on top of the L1 maximum sentence is 42 years

In conclusion, this can all be very confusing to the lay person. That’s why it’s essential that an experienced Indianapolis criminal defense attorney is hired in cases involving concurrent or consecutive sentencings. Should you or a loved one be facing a criminal offense in Indiana, give us a call at 317.870.0019 or by email at 24/7/365.