What Will a Judge Consider When Imposing a Sentence in a Criminal Case?

When we are representing defendants against criminal allegations, our clients often ask what a judge might consider when imposing a sentence after a guilty verdict at trial or as part of a guilty plea, where the parties are free to argue the sanction to be received.

While there is a wide range of considerations—such as the defendant’s personal history, the victim’s wishes, witness testimony, character letters, and the nature of the crime—many people don’t realize that Indiana has a statute that lays out these rules. Under Indiana Code § 35-38-1-7.1, a judge must consider aggravating and mitigating factors before finalizing a sentence.

The Court of Appeals has also made it clear that every judge must explain how they arrived at a sentence and identify which statutory factors they relied on. Without that explanation, the decision could be vulnerable to appeal.

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Sentencing Ranges: Minimum, Advisory, and Maximum Penalties in Indiana

Before diving into aggravators and mitigators, it’s important to understand sentencing ranges. Indiana statutes assign every felony level a minimum, maximum, and advisory sentence.

This framework is the starting point:

• The minimum and maximum caps what a judge may impose.
• The advisory sentence serves as a baseline. Judges increase or decrease from that point depending on the weight of aggravators versus mitigators.

For example, a Level 5 felony is one to six years, with three years as the advisory sentence. A judge may impose more or less time depending on the statutory factors.

Indiana Sentencing Table

Indiana’s felony sentencing framework is codified in Indiana Code § 35-50-2. Each felony level has specific ranges that guide judicial discretion.

• Level 1 Felony: 20–40 years, advisory 30
• Level 2 Felony: 10–30 years, advisory 17.5
• Level 3 Felony: 3–16 years, advisory 9
• Level 4 Felony: 2–12 years, advisory 6
• Level 5 Felony: 1–6 years, advisory 3
• Level 6 Felony: 6 months–2.5 years, advisory 1 year.

Misdemeanors also carry set ranges. For instance, a Class A misdemeanor can result in up to one year in jail and a fine of up to $5,000.

Understanding these numbers matters, because judges must work within these boundaries when weighing aggravators and mitigators.

When Do Judges Consider Aggravators and Mitigators?

Judges evaluate aggravators and mitigators in most sentencing hearings, but not always.

• If a plea agreement includes a fixed sentence, the judge usually accepts it without reciting each statutory factor.
• If a plea departs significantly from the advisory sentence, judges may still reference aggravators or mitigators to explain why they accept or reject it.
• In open-ended pleas or after a trial conviction, the judge must carefully weigh statutory factors before announcing the sentence.

This requirement ensures fairness and creates a record for appeal, should one be necessary.

How Judges Use the Factors in IC 35-38-1-7.1

Judges have broad discretion in how much weight to give each factor. Aggravators push a sentence upward, mitigators can lower it, and the advisory sentence is likely if both balance out.

For example, a judge may find equal numbers of aggravators and mitigators but still impose a harsher sentence if they believe the aggravators carry greater weight. Appellate courts generally uphold this discretion so long as the reasoning is documented under IC 35-38-1-7.1.

Statutory Aggravators Under IC 35-38-1-7.1

Examples of aggravating factors include:

• Significant harm to the victim beyond the offense elements.
• A prior history of criminal or delinquent acts.
• Crimes committed in front of minors.
• Violations of protective or no-contact orders.
• Targeting victims who are elderly, disabled, or otherwise vulnerable.
• Offenses motivated by bias or prejudice.

These aggravators can justify moving well above the advisory sentence within the statutory range.

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Statutory Mitigators Under IC 35-38-1-7.1

Examples of mitigating factors include:

• The crime caused little or no actual harm.
• The offense was unlikely to recur.
• The victim facilitated the crime.
• The defendant acted under strong provocation.
• A lack of prior criminal history.
• A strong likelihood of responding well to probation.
• Restitution paid to the victim.
• Undue hardship that imprisonment would impose on dependents.
• Documented conditions such as PTSD or traumatic brain injury.

Mitigators often serve as the basis for defense arguments urging a lower-than-advisory sentence.

Why These Factors Matter in Every Sentencing Hearing

Sentencing is not a mechanical process. Judges must evaluate statutory factors, consider arguments from both sides, and justify their decision on the record.

For defendants, this means raising every possible mitigator is critical. Missing a statutory factor could mean the difference between probation and years in prison. For victims, understanding these factors explains how their input might influence a sentence.

Ultimately, judicial transparency under IC 35-38-1-7.1 ensures fairness and protects the integrity of the system.

Learn more:

• How to Get a Sentence Modification in Indiana
• A Look at the Burdens of Proof in Indiana
• Sentence Modification: Process, Requirements & Limitations

Speak With a Criminal Defense Lawyer at Banks & Brower Today

Are judges lenient on first-time offenders? The truth is that sentencing decisions depend on more than a clean record—they hinge on how statutory factors are argued in court. At Banks & Brower, we know how to present those arguments effectively. Reach out to us 24/7 at (317) 870-0019 or visit our website to schedule your free consultation today.