Indiana law has long classified certain sentences as “non-suspendible.” What does non-suspendible mean, you may be wondering. A suspended sentence is one which is formally imposed but not required to actually be served. An executed sentence is one in which a person is committed to the Department of Correction. And in some circumstances, the Indiana legislature has determined that a court is without power to suspend some portion of sentence.
Generally speaking, Indiana law allows a judge to suspend any part of a sentence for a felony. However, there are some important exceptions to this rule which might apply to your case. First, and perhaps most significantly, if a person is convicted of a Level 2 felony, the court may only suspend that part of the sentence which is in excess of the minimum sentence. A Level 2 felony carries a penalty range of 10 to 30 years, meaning that person will have at least 10 years of the sentence executed.
Likewise, if a person is convicted of a Level 3 felony and has a prior juvenile adjudication for an act that would be a felony if committed by an adult (excluding an adjudication for an act involving marijuana, hashish, hash oil, or salvia divinorum), and less than 3 years have elapsed between the commission of the act and commission of the Level 3 felony, the judge may suspend only that portion of the sentence in excess of the minimum for the Level 3 felony. A Level 3 felony can be punished by 3 to 16 years, so the person will be ordered to serve at least 3 years executed.
Finally, if a person is convicted of murder or a Level 1 felony, the court can only suspend that part of the sentence exceeding the minimum. The minimum for murder is 45 years, and the minimum for a Level 1 felony is 20 years. Thus, a person convicted of murder, or a Level 1 felony is facing a sentence requiring substantial executed time.
But if these sentences are minimum non-suspendible, does that mean the executed time has to be served in the Department of Correction? Not necessarily. Another provision of Indiana law allows for each of the minimum non-suspendible categories above to be placed in a community corrections program as an alternative to serving time in the Department of Correction. This means that the person may be able to serve some or all of the non-suspendible sentence in home detention or work release instead of prison.
One type of sentence which is non-suspendible and is not eligible for community corrections, however, is one resulting from a habitual offender enhancement. The habitual offender statute explicitly designates the habitual offender statute as non-suspendible, and the Indiana legislature has not created law which would allow it to be served in community corrections as it did for the sentences detailed above. Thus, for a habitual offender enhancement, a judge’s only option is to order that it be served in the Department of Corrections.
There are also certain offenses for which Indiana law does not permit community corrections sentences. These include:
- Sex crimes under I.C. 35-42-4 or 35-46-1-3 (incest)
- Level 1 or Class A felonies
- Murder
- Battery with a deadly weapon or causing death
- Kidnapping
- Criminal confinement with a deadly weapon
- Robbery resulting in serious bodily injury or with a deadly weapon
- Arson for hire resulting in serious bodily injury
- Burglary resulting in serious bodily injury
- Resisting law enforcement with a deadly weapon
- Aggravated battery
- Disarming a law enforcement officer
- A sentence for a crime subject to the criminal organization enhancement
As is clear, determining whether or not a certain sentence can be suspended can be complicated. And the higher the level of the offense, the more significant the stakes. For these reasons, it is important to talk to an experienced criminal defense attorney about sentencing options that may be available for your case. The attorneys at Banks & Brower are available to assist you in navigating this and other issues presented by your case. Contact us 24/7/365 at (317) 870-0019 or info@banksbrower.com.
