Did you and or a loved one receive a sentence you’re unhappy with or feel is unjust? A sentence modification may be an option!
Key Takeaways
- Indiana’s criminal laws controlling sentence modification are regulated under Indiana Code 35-38-1-17.
- A sentence modification allows the trial court to reduce or modify a previously imposed sentence.
- Prosecutorial discretion plays a key role in the modification process and is required for those convicted of violent crimes.
- There are constraints on the frequency and total amount of times a sentence modification can be requested.
- Just because a person is eligible for a sentence modification, does not mean it is a good strategic decision at that time.
- Anyone seeking a sentence modification should consult a licensed attorney first.
What is a Sentence Modification?
A sentence modification is governed by Indiana Code 35-38-1-17, which allows the same trial court (and in most cases the same judge) to reduce, suspend, or in some way change a criminal sentence after it has been imposed. This modification can be requested at any time in the sentence, unlike Indiana’s appeals process which follows strict filing deadlines. Although a sentence modification can be done at any time, it is important to consult with a licensed attorney to determine when the best strategic timing to apply.
Modification Process
If you and your attorney determine now is a good time to apply for a sentence modification, the process is straightforward:
- Your attorney should reach out to the prosecutor to determine their position on the modification.
- Your attorney will then request a Progress Report from the supervising agency (typically Indiana Department of Corrections, Community Corrections, or Probation).
- A Petition asking for a sentence modification will be filed in the trial court that sentenced the Accused.
- The trial court will review the Petition and either deny, grant, or set the matter for a hearing.
- The Prosecutor and any victims in the case have the right to be present.
- The trial court can grant the Petition without a hearing if the prosecutor files a written agreement to the modification AND the Accused waives their right to be present when the court considers the request for sentence modification.
Who is eligible for a Sentence Modification?
Under Indiana’s revised sentence modification statute, which takes effect July 1, 2026, any person convicted of a violent crime under Indiana Code 35-31.5-2-79 is ineligible for modification without the consent of the prosecution. A crime of violence generally means murder, crimes of sexual violence, or a crime that harmed an alleged victim, however, the exact definition is length and convoluted. Again, it is important to consult with an attorney to determine eligibility.
Prosecutorial Discretion and the 365-Day Rule
Prosecutorial discretion (the position of the prosecutor) plays a key role in the sentence modification process.
The prosecutor MUST agree to modification for any person convicted of a violation crime. If the Accused was not convicted of a violent crime, they may file for a sentence modification:
- Only once in any 365 day period; and
- A maximum of two (2) times during any consecutive period of incarceration;
Without the consent of the prosecuting attorney.
When is a good time to ask for a sentence modification?
Due to the limitations surrounding the frequency of asking for a sentence modification, you should consult with an attorney before filing a petition. Some grounds for modification are, but not limited to:
- The sentence issued was illegal or erroneous;
- New information has come to light regarding the original criminal case;
- The offender has completed rehabilitative services or programs while incarcerated or on supervision;
- Hardship on the Accused’s family or their own health;
Other things to consider include:
- The amount of time the Accused was originally sentenced to; and
- The amount of time the Accused has completed on their sentence;
Contact Banks & Brower: Experienced Indiana Defense for Case
Sentence Modification is a complicated, but important part of Indiana’s criminal justice system. Having an experienced attorney that understands the process often makes all the difference. At Banks & Brower, we have seasoned criminal defense attorneys with years of experience in sentence modifications. Call us at 317-870-0019 today to schedule a confidential consultation and begin building your case.
