Many times, 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 are a myriad of considerations that go into a possible sanction, such as the defendant’s history/characteristics, the victim(s) wishes, testimony at the sentencing by witnesses, character letters, and the nature of the crime itself, many people don’t realize that there is a statute (codified in IC 35-38-1-7.1) that lays out exactly what a judge must consider. The Court of Appeals has demanded that every judge lay forth exactly how they came to the sentence they imposed, and which statutory mitigators and aggravators they considered when reaching their conclusion. If they don’t, the judge opens the door wider to a possible appeal down the road.
Before we dive into the statutory mitigators and aggravators listed in IC 35-38-1-7.1, it makes sense to revisit the maximum and minimum penalties for each crime and the advisory sentence that each level calls for as a starting point. The reason that is important is because the range of penalties for each crime a defendant is facing is capped within the minimum and maximum penalty they plead to, were found guilty of, and/or as laid out in a plea agreement (taking into account concurrent or consecutive sentencing). Moreover, the legislature in Indiana has set advisory sentences as a starting point for all judges, and from that point, judges will mitigate downwards if the mitigators outweigh the aggravators in the statute, or vice versa. Here are the penalty ranges:
MURDER | 45 YEARS | 55 YEARS | 65 YEARS |
LEVEL 1 | 20 YEARS | 30 YEARS | 40 YEARS |
LEVEL 2 | 10 YEARS | 17.5 YEARS | 30 YEARS |
LEVEL 3 | 3 YEARS | 9 YEARS | 16 YEARS |
LEVEL 4 | 2 YEARS | 6 YEARS | 12 YEARS |
LEVEL 5 | 1 YEAR | 3 YEARS | 6 YEARS |
LEVEL 6 | 180 DAYS | 1 YEAR | 2.5 YEARS |
A MISDEMEANOR | 0 DAYS | – | 365 DAYS |
B MISDEMEANOR | 0 DAYS | – | 180 DAYS |
C MISDEMEANOR | 0 DAYS | – | 60 DAYS |
If the parties have agreed to a set sentence as part of a plea agreement with nothing to argue over, typically a judge will not run through all of the statutory aggravators and/or mitigators. Why? Because there isn’t an argument over what the length of penalty will be. However, there are times when a plea agreement is a significant departure from the advisory sentence and a judge may want an explanation using the factors in IC 35-38-1-7.1 to justify accepting or rejecting the agreement. In that circumstance, the parties may still mention the relative factors that went into the resolution before the court.
In all other circumstances (open arguments within a non-set-term-plea or after a trial verdict of guilty), a judge will painstakingly go through the factors in IC 35-38-1-7.1 in making a final judgement at sentencing. The aggravators mentioned below are things that would persuade a judge to issue a sentence harsher than the advisory sentence. The mitigators mentioned below are those factors that might persuade a judge to give a penalty lower than the advisory range. If all things are equal in the judge’s mind, they may land on the advisory sentence provided by the legislature.
It is important to note that a judge may give more weight or consideration to differing factors under both the aggravators and mitigators listed below. That’s to say that each factor is not necessarily given the same weight or persuasion by the judge. So, a judge can find 4 aggravators and 4 mitigators, but issue a harsher than advisory sentence because he gave greater weight to the 4 mitigators. This may feel like a moving target, but great deference is given to judges in crafting sentences so long as they state their reasoning under this statute.
Nevertheless, below are the statutory aggravators and mitigators listed in IC 35-38-1-7.1.
Aggravators:
(1) The harm, injury, loss, or damage suffered by the victim of an offense was
(A) significant, and
(B) greater than the elements necessary to prove the commission of the offense
(2) The person has a history of criminal or delinquent behavior
(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense
(4) The person
(A) committed a crime of violence (IC 35-50-1-2), and
(B) knowingly committed the offense in the presence or within hearing of an individual who
(i) was less than eighteen (18) years of age at the time the person committed the offense, and
(ii) is not the victim of the offense
(5) The person violated a protective order issued against the person under IC 34-26-5, a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person
(6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person
(7) The victim of the offense was
(A) a person with a disability and the defendant knew or should have known that the victim was a person with a disability, or
(B) mentally or physically infirm
(8) The person was in a position having care, custody, or control of the victim of the offense
(9) The injury to or death of the victim of the offense was the result of shaken baby syndrome
(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense
(11) The person
(A) committed trafficking with an inmate under IC 35-44.1-3-5, and
(B) is an employee of the penal facility
(12) The person committed the offense with bias due to the victim’s or the group’s real or perceived characteristic, trait, belief, practice, association, or other attribute the court chooses to consider, including but not limited to an attribute described in IC 10-13-3-1
Mitigators:
(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so
(2) The crime was the result of circumstances unlikely to recur
(3) The victim of the crime induced or facilitated the offense
(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense
(5) The person acted under strong provocation
(6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime
(7) The person is likely to respond affirmatively to probation or short-term imprisonment
(8) The character and attitudes of the person indicate that the person is unlikely to commit another crime
(9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained
(10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person
(11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery because of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
(12) The person was convicted of a crime relating to a controlled substance and the person’s arrest or prosecution was facilitated in part because the person
(A) requested emergency medical assistance, or
(B) acted in concert with another person who requested emergency medical assistance
for an individual who reasonably appeared to need medical assistance due to the use of alcohol or a controlled substance
(13) The person has posttraumatic stress disorder, traumatic brain injury, or a post-concussive brain injury
Again, these factors mentioned above must be evaluated by the judge if there is an argument over the length of sentence to be imposed. While they do not carry equal weight, each and every factor is crucially important for counsel to raise at sentencing, because if they fail to do so, it could impact the sentence received. If you or a loved one are facing a criminal offense in Indiana, give the experienced litigators at Banks & Brower a call today at 317.870.0019 or email at info@banksbrower.com. We are available 24/7/365.