CHAPTER 1. ENTRY OF JUDGMENT AND SENTENCING
IC 35-38
ARTICLE 38. PROCEEDINGS FOLLOWINGDISMISSAL, VERDICT, OR FINDING
IC 35-38-1
Chapter 1. Entry of Judgment and Sentencing
IC 35-38-1-1
Judgment of conviction; pronouncement of sentence
Sec. 1. (a) Except as provided in section 1.5 of this chapter, aftera verdict, finding, or plea of guilty, if a new trial is not granted, thecourt shall enter a judgment of conviction.
(b) When the court pronounces the sentence, the court shall advisethe person that the person is sentenced for not less than the earliestrelease date and for not more than the maximum possible releasedate.
As added by P.L.311-1983, SEC.3. Amended by P.L.148-1995,SEC.3; P.L.98-2003, SEC.1.
IC 35-38-1-1.3
Statement of reasons for imposing particular sentence
Sec. 1.3. After a court has pronounced a sentence for a felonyconviction, the court shall issue a statement of the court's reasons forselecting the sentence that it imposes.
As added by P.L.178-2007, SEC.2.
IC 35-38-1-1.5
Converting Class D felony to Class A misdemeanor
Sec. 1.5. (a) A court may enter judgment of conviction as a ClassD felony with the express provision that the conviction will beconverted to a conviction as a Class A misdemeanor within three (3)years if the person fulfills certain conditions. A court may enter ajudgment of conviction as a Class D felony with the expressprovision that the conviction will be converted to a conviction as aClass A misdemeanor only if the person pleads guilty to a Class Dfelony that qualifies for consideration as a Class A misdemeanorunder IC 35-50-2-7, and the following conditions are met:
(1) The prosecuting attorney consents.
(2) The person agrees to the conditions set by the court.
(b) For a judgment of conviction to be entered under subsection(a), the court, the prosecuting attorney, and the person must all agreeto the conditions set by the court under subsection (a).
(c) The court is not required to convert a judgment of convictionentered as a Class D felony to a Class A misdemeanor if, after ahearing, the court finds:
(1) the person has violated a condition set by the court undersubsection (a); or
(2) the period that the conditions set by the court undersubsection (a) are in effect expires before the person
successfully completes each condition.
However, the court may not convert a judgment of conviction enteredas a Class D felony to a Class A misdemeanor if the person commitsa new offense before the conditions set by the court under subsection(a) expire.
(d) The court shall enter judgment of conviction as a Class Amisdemeanor if the person fulfills the conditions set by the courtunder subsection (a).
(e) The entry of a judgment of conviction under this section doesnot affect the application of any statute requiring the suspension ofa person's driving privileges.
(f) This section may not be construed to diminish or alter therights of a victim (as defined in IC 35-40-4-8) in a sentencingproceeding under this chapter.
As added by P.L.98-2003, SEC.2.
IC 35-38-1-2
"Victim representative" defined; sentencing; date; hearing forincreased penalty; imprisonment pending sentencing
Sec. 2. (a) As used in this chapter, "victim representative" meansa person designated by a sentencing court who is:
(1) a spouse, parent, child, sibling, or other relative of; or
(2) a person who has had a close personal relationship with;
the victim of a felony who is deceased, incapacitated, or less thaneighteen (18) years of age.
(b) Upon entering a conviction, the court shall set a date forsentencing within thirty (30) days, unless for good cause shown anextension is granted. If a presentence report is not required, the courtmay sentence the defendant at the time the judgment of convictionis entered. However, the court may not pronounce sentence at thattime without:
(1) inquiring as to whether an adjournment is desired by thedefendant; and
(2) informing the victim, if present, of a victim's right to makea statement concerning the crime and the sentence.
When an adjournment is requested, the defendant shall state itspurpose and the court may allow a reasonable time for adjournment.
(c) If:
(1) the state in the manner prescribed by IC 35-34-1-2.5 soughtan increased penalty by alleging that the person was previouslyconvicted of the offense; and
(2) the person was convicted of the subsequent offense in a jurytrial;
the jury shall reconvene for the sentencing hearing. The person shallbe sentenced to receive the increased penalty if the jury (or the court,if the trial is to the court alone) finds that the state has proved beyonda reasonable doubt that the person had a previous conviction for theoffense.
(d) If the felony is nonsuspendible under IC 35-50-2-2, the judgeshall order the defendant, if the defendant has previously been
released on bail or recognizance, to be imprisoned in the county orlocal penal facility pending sentencing.
(e) Upon entering a conviction for a felony, the court shalldesignate a victim representative if the victim is deceased,incapacitated, or less than eighteen (18) years of age.
As added by P.L.311-1983, SEC.3. Amended by P.L.50-1984, SEC.8;P.L.131-1985, SEC.14; P.L.36-1990, SEC.11.
IC 35-38-1-2.5
Crime of deception
Sec. 2.5. (a) As used in this section, "crime of deception" meansany offense in which a person assumes the identity of another person,professes to be another person, uses the identifying information ofanother person, or falsely suggests that the person is acting with theauthority of another person. The term includes an offense underIC 35-43-5.
(b) This section applies to an offender who has been convicted ofa crime of deception.
(c) During or after the sentencing of a person convicted of a crimeof deception, the court may, upon motion by the state or uponapplication by a victim or a victim's representative, issue an order:
(1) describing the person whose credit history may be affectedby the offender's crime of deception, with sufficient identifyinginformation to assist another person in correcting the credithistory; and
(2) stating that the person described in subdivision (1) was thevictim of a crime of deception that may have affected theperson's credit history.
(d) The order described in subsection (c) may be used to correctthe credit history of any person described in the order.
As added by P.L.22-2003, SEC.3.
IC 35-38-1-3
Presentence hearing
Sec. 3. Before sentencing a person for a felony, the court mustconduct a hearing to consider the facts and circumstances relevant tosentencing. The person is entitled to subpoena and call witnesses andto present information in his own behalf. The court shall make arecord of the hearing, including:
(1) a transcript of the hearing;
(2) a copy of the presentence report; and
(3) if the court finds aggravating circumstances or mitigatingcircumstances, a statement of the court's reasons for selectingthe sentence that it imposes.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-4
Presence of defendant when sentence pronounced; pronouncementof sentence against defendant corporation
Sec. 4. (a) The defendant must be personally present at the time
sentence is pronounced. If the defendant is not personally presentwhen sentence is to be pronounced, the court may issue a warrant forhis arrest.
(b) Sentence may be pronounced against a defendant corporationin the absence of counsel, if counsel fails to appear on the date ofsentencing after reasonable notice.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-5
Informing defendant of verdict and court's finding; defendant'sstatement; inclusion of cost of incarceration in sentencing order
Sec. 5. (a) When the defendant appears for sentencing, the courtshall inform the defendant of the verdict of the jury or the finding ofthe court. The court shall afford counsel for the defendant anopportunity to speak on behalf of the defendant. The defendant mayalso make a statement personally in the defendant's own behalf and,before pronouncing sentence, the court shall ask the defendantwhether the defendant wishes to make such a statement. Sentenceshall then be pronounced, unless a sufficient cause is alleged orappears to the court for delay in sentencing.
(b) This subsection expires June 30, 2012. A court that sentencesa person to a term of imprisonment shall include the total costs ofincarceration in the sentencing order. The court may not considerClass I credit under IC 35-50-6-3 in the calculation of the total costsof incarceration.
As added by P.L.311-1983, SEC.3. Amended by P.L.85-2004, SEC.6;P.L.105-2010, SEC.10.
IC 35-38-1-6
Judgment and sentence when defendant charged and found guiltyof offense and included offense
Sec. 6. Whenever:
(1) a defendant is charged with an offense and an includedoffense in separate counts; and
(2) the defendant is found guilty of both counts;
judgment and sentence may not be entered against the defendant forthe included offense.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-7
Repealed
(Repealed by P.L.1-1990, SEC.344.)
IC 35-38-1-7.1
Considerations in imposing sentence
Sec. 7.1. (a) In determining what sentence to impose for a crime,the court may consider the following aggravating circumstances:
(1) The harm, injury, loss, or damage suffered by the victim ofan offense was:
(A) significant; and (B) greater than the elements necessary to prove thecommission 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 ofage or at least sixty-five (65) years of age at the time the personcommitted 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 orwithin hearing of an individual who:
(i) was less than eighteen (18) years of age at the time theperson committed the offense; and
(ii) is not the victim of the offense.
(5) The person violated a protective order issued against theperson under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, orIC 34-4-5.1 before their repeal), a workplace violencerestraining order issued against the person under IC 34-26-6, ora no contact order issued against the person.
(6) The person has recently violated the conditions of anyprobation, parole, pardon, community corrections placement, orpretrial release granted to the person.
(7) The victim of the offense was:
(A) a person with a disability (as defined in IC 27-7-6-12),and the defendant knew or should have known that thevictim was a person with a disability; or
(B) mentally or physically infirm.
(8) The person was in a position having care, custody, orcontrol of the victim of the offense.
(9) The injury to or death of the victim of the offense was theresult of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense ora witness if the victim or witness told anyone about the offense.
(11) The person:
(A) committed trafficking with an inmate underIC 35-44-3-9; and
(B) is an employee of the penal facility.
(b) The court may consider the following factors as mitigatingcircumstances or as favoring suspending the sentence and imposingprobation:
(1) The crime neither caused nor threatened serious harm topersons or property, or the person did not contemplate that itwould 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 justifythe crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminalactivity, or the person has led a law-abiding life for a substantialperiod before commission of the crime. (7) The person is likely to respond affirmatively to probation orshort term imprisonment.
(8) The character and attitudes of the person indicate that theperson is unlikely to commit another crime.
(9) The person has made or will make restitution to the victimof the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardshipto the person or the dependents of the person.
(11) The person was convicted of a crime involving the use offorce against a person who had repeatedly inflicted physical orsexual abuse upon the convicted person and evidence showsthat the convicted person suffered from the effects of battery asa result of the past course of conduct of the individual who isthe victim of the crime for which the person was convicted.
(c) The criteria listed in subsections (a) and (b) do not limit thematters that the court may consider in determining the sentence.
(d) A court may impose any sentence that is:
(1) authorized by statute; and
(2) permissible under the Constitution of the State of Indiana;
regardless of the presence or absence of aggravating circumstancesor mitigating circumstances.
As added by P.L.1-1990, SEC.345. Amended by P.L.1-1991,SEC.195; P.L.2-1993, SEC.181; P.L.21-1994, SEC.2; P.L.1-1997,SEC.145; P.L.210-1997, SEC.1; P.L.1-1998, SEC.195; P.L.51-1998,SEC.4; P.L.71-1998, SEC.1; P.L.31-1998, SEC.1; P.L.183-1999,SEC.1; P.L.17-2001, SEC.12; P.L.280-2001, SEC.51; P.L.133-2002,SEC.61; P.L.221-2003, SEC.16; P.L.71-2005, SEC.3; P.L.213-2005,SEC.3; P.L.119-2008, SEC.14.
IC 35-38-1-7.5
Sexually violent predators
Sec. 7.5. (a) As used in this section, "sexually violent predator"means a person who suffers from a mental abnormality or personalitydisorder that makes the individual likely to repeatedly commit a sexoffense (as defined in IC 11-8-8-5.2). The term includes a personconvicted in another jurisdiction who is identified as a sexuallyviolent predator under IC 11-8-8-20. The term does not include aperson no longer considered a sexually violent predator undersubsection (g).
(b) A person who:
(1) being at least eighteen (18) years of age, commits an offensedescribed in:
(A) IC 35-42-4-1;
(B) IC 35-42-4-2;
(C) IC 35-42-4-3 as a Class A or Class B felony;
(D) IC 35-42-4-5(a)(1);
(E) IC 35-42-4-5(a)(2);
(F) IC 35-42-4-5(a)(3);
(G) IC 35-42-4-5(b)(1) as a Class A or Class B felony;
(H) IC 35-42-4-5(b)(2); (I) IC 35-42-4-5(b)(3) as a Class A or Class B felony;
(J) an attempt or conspiracy to commit a crime listed inclauses (A) through (I); or
(K) a crime under the laws of another jurisdiction, includinga military court, that is substantially equivalent to any of theoffenses listed in clauses (A) through (J);
(2) commits a sex offense (as defined in IC 11-8-8-5.2) whilehaving a previous unrelated conviction for a sex offense forwhich the person is required to register as a sex or violentoffender under IC 11-8-8;
(3) commits a sex offense (as defined in IC 11-8-8-5.2) whilehaving had a previous unrelated adjudication as a delinquentchild for an act that would be a sex offense if committed by anadult, if, after considering expert testimony, a court finds byclear and convincing evidence that the person is likely tocommit an additional sex offense; or
(4) commits a sex offense (as defined in IC 11-8-8-5.2) whilehaving had a previous unrelated adjudication as a delinquentchild for an act that would be a sex offense if committed by anadult, if the person was required to register as a sex or violentoffender under IC 11-8-8-5(b)(2);
is a sexually violent predator. Except as provided in subsection (g)or (h), a person is a sexually violent predator by operation of law ifan offense committed by the person satisfies the conditions set forthin subdivision (1) or (2) and the person was released fromincarceration, secure detention, or probation for the offense afterJune 30, 1994.
(c) This section applies whenever a court sentences a person or ajuvenile court issues a dispositional decree for a sex offense (asdefined in IC 11-8-8-5.2) for which the person is required to registerwith the local law enforcement authority under IC 11-8-8.
(d) At the sentencing hearing, the court shall indicate on therecord whether the person has been convicted of an offense thatmakes the person a sexually violent predator under subsection (b).
(e) If a person is not a sexually violent predator under subsection(b), the prosecuting attorney may request the court to conduct ahearing to determine whether the person (including a childadjudicated to be a delinquent child) is a sexually violent predatorunder subsection (a). If the court grants the motion, the court shallappoint two (2) psychologists or psychiatrists who have expertise incriminal behavioral disorders to evaluate the person and testify at thehearing. After conducting the hearing and considering the testimonyof the two (2) psychologists or psychiatrists, the court shalldetermine whether the person is a sexually violent predator undersubsection (a). A hearing conducted under this subsection may becombined with the person's sentencing hearing.
(f) If a person is a sexually violent predator:
(1) the person is required to register with the local lawenforcement authority as provided in IC 11-8-8; and
(2) the court shall send notice to the department of correction. (g) This subsection does not apply to a person who has two (2) ormore unrelated convictions for an offense described in IC 11-8-8-4.5for which the person is required to register under IC 11-8-8. A personwho is a sexually violent predator may petition the court to considerwhether the person should no longer be considered a sexually violentpredator. The person may file a petition under this subsection notearlier than ten (10) years after:
(1) the sentencing court or juvenile court makes itsdetermination under subsection (e); or
(2) the person is released from incarceration or securedetention.
A person may file a petition under this subsection not more than one(1) time per year. A court may dismiss a petition filed under thissubsection or conduct a hearing to determine if the person should nolonger be considered a sexually violent predator. If the courtconducts a hearing, the court shall appoint two (2) psychologists orpsychiatrists who have expertise in criminal behavioral disorders toevaluate the person and testify at the hearing. After conducting thehearing and considering the testimony of the two (2) psychologistsor psychiatrists, the court shall determine whether the person shouldno longer be considered a sexually violent predator under subsection(a). If a court finds that the person should no longer be considered asexually violent predator, the court shall send notice to thedepartment of correction that the person is no longer considered asexually violent predator. Notwithstanding any other law, a conditionimposed on a person due to the person's status as a sexually violentpredator, including lifetime parole or GPS monitoring, does notapply to a person no longer considered a sexually violent predator.
(h) A person is not a sexually violent predator by operation of lawunder subsection (b)(1) if all of the following conditions are met:
(1) The victim was not less than twelve (12) years of age at thetime the offense was committed.
(2) The person is not more than four (4) years older than thevictim.
(3) The relationship between the person and the victim was adating relationship or an ongoing personal relationship. Theterm "ongoing personal relationship" does not include a familyrelationship.
(4) The offense committed by the person was not any of thefollowing:
(A) Rape (IC 35-42-4-1).
(B) Criminal deviate conduct (IC 35-42-4-2).
(C) An offense committed by using or threatening the use ofdeadly force or while armed with a deadly weapon.
(D) An offense that results in serious bodily injury.
(E) An offense that is facilitated by furnishing the victim,without the victim's knowledge, with a drug (as defined inIC 16-42-19-2(1)) or a controlled substance (as defined inIC 35-48-1-9) or knowing that the victim was furnished withthe drug or controlled substance without the victim's
knowledge.
(5) The person has not committed another sex offense (asdefined in IC 11-8-8-5.2) (including a delinquent act that wouldbe a sex offense if committed by an adult) against any otherperson.
(6) The person did not have a position of authority orsubstantial influence over the victim.
(7) The court finds that the person should not be considered asexually violent predator.
As added by P.L.56-1998, SEC.17. Amended by P.L.1-1999, SEC.77;P.L.238-2001, SEC.18; P.L.116-2002, SEC.20; P.L.6-2006, SEC.5;P.L.140-2006, SEC.21 and P.L.173-2006, SEC.21; P.L.216-2007,SEC.37.
IC 35-38-1-7.7
Crime of domestic violence; sentence procedures
Sec. 7.7. (a) At the time of sentencing, a court shall determinewhether a person has committed a crime of domestic violence (asdefined in IC 35-41-1-6.3).
(b) A determination under subsection (a) must be based upon:
(1) evidence introduced at trial; or
(2) a factual basis provided as part of a guilty plea.
(c) Upon determining that a defendant has committed a crime ofdomestic violence, a court shall advise the defendant of theconsequences of this finding.
(d) A judge shall record a determination that a defendant hascommitted a crime of domestic violence on a form prepared by thedivision of state court administration.
As added by P.L.195-2003, SEC.4.
IC 35-38-1-8
Presentence report to be considered by court before sentencing;advisement of victim of right to make statement
Sec. 8. (a) Except as provided in subsection (c), a defendantconvicted of a felony may not be sentenced before a writtenpresentence report is prepared by a probation officer and consideredby the sentencing court. Delay of sentence until a presentence reportis prepared does not constitute an indefinite postponement orsuspension of sentence.
(b) A victim present at sentencing in a felony or misdemeanorcase shall be advised by the court of a victim's right to make astatement concerning the crime and the sentence.
(c) A court may sentence a person convicted of a Class D felonywithout considering a written presentence report prepared by aprobation officer. However, if a defendant is committed to thedepartment of correction or a community corrections program underIC 35-38-2.6, the probation officer shall prepare a report that meetsthe requirements of section 9 of this chapter to be sent with theoffender to the department in lieu of the presentence investigationreport required by section 14 of this chapter.As added by P.L.311-1983, SEC.3. Amended by P.L.131-1985,SEC.16; P.L.240-1991(ss2), SEC.90; P.L.104-1997, SEC.6.
IC 35-38-1-8.5
Presentence investigation; notice to victim; victim impactstatement; contents
Sec. 8.5. (a) A probation officer who is conducting a presentenceinvestigation shall send written notification of the following to eachvictim or each victim representative designated by the court undersection 2(e) of this chapter:
(1) The date, time, and place of the sentencing hearing set bythe court.
(2) The right of the victim or victim representative to make anoral or written statement to the court at the sentencing hearing.
(3) The right of the victim or victim representative to submit orrefuse to submit to the probation officer a written or oralstatement of the impact of the crime upon the victim forinclusion by the probation officer in a victim impact statement.
(b) The notification required by subsection (a) must be sent atleast seven (7) days before the date of the sentencing hearing to thelast known address of the victim or the victim representative.
(c) The probation officer shall prepare a victim impact statementfor inclusion in the convicted person's presentence report. The victimimpact statement consists of information about each victim and theconsequences suffered by a victim or a victim's family as a result ofthe crime.
(d) Unless the probation officer certifies to the court under section9 of this chapter that a victim or victim representative could not becontacted or elected not to submit a statement to the probation officerconcerning the crime, the victim impact statement required under thissection must include the following information about each victim:
(1) A summary of the financial, emotional, and physical effectsof the crime on the victim and the victim's family.
(2) Personal information concerning the victim, excludingtelephone numbers, place of employment, and residentialaddress.
(3) Any written statements submitted by a victim or victimrepresentative to the probation officer.
(4) If the victim desires restitution, the basis and amount of arequest for victim restitution.
(e) A victim or victim representative is not required to submit astatement or to cooperate in the preparation of the victim impactstatement required under this section.
As added by P.L.36-1990, SEC.12. Amended by P.L.216-1996,SEC.12.
IC 35-38-1-9
"Recommendation" and "victim" defined; presentenceinvestigation matters; certification by probation officer when nowritten statements submitted Sec. 9. (a) As used in this chapter, "recommendation" and"victim" have the meanings set out in IC 35-35-3-1.
(b) The presentence investigation consists of the gathering ofinformation with respect to:
(1) the circumstances attending the commission of the offense;
(2) the convicted person's history of delinquency or criminality,social history, employment history, family situation, economicstatus, education, and personal habits; and
(3) the impact of the crime upon the victim.
(c) The presentence investigation may include any matter that theprobation officer conducting the investigation believes is relevant tothe question of sentence, and must include:
(1) any matters the court directs to be included;
(2) any written statements submitted to the prosecuting attorneyby a victim under IC 35-35-3;
(3) any written statements submitted to the probation officer bya victim; and
(4) preparation of the victim impact statement required undersection 8.5 of this chapter.
(d) If there are no written statements submitted to the probationofficer, he shall certify to the court:
(1) that he has attempted to contact the victim; and
(2) that if he has contacted the victim he has offered to acceptthe written statements of the victim or to reduce his oralstatements to writing, concerning the sentence, including theacceptance of any recommendation.
(e) A presentence investigation report prepared by a probationofficer must include the information and comply with any otherrequirements established in the rules adopted under IC 11-13-1-8.
As added by P.L.311-1983, SEC.3. Amended by P.L.36-1990,SEC.13; P.L.240-1991(ss2), SEC.91; P.L.216-1996, SEC.13.
IC 35-38-1-9.5
Confidential information; convicted person carrier of humanimmunodeficiency virus (HIV); sex crimes and controlledsubstances
Sec. 9.5. A probation officer shall obtain confidential informationfrom the state department of health under IC 16-41-8-1 to determinewhether a convicted person was a carrier of the humanimmunodeficiency virus (HIV) when the crime was committed if theperson is:
(1) convicted of an offense relating to a criminal sexual act andthe offense created an epidemiologically demonstrated risk oftransmission of the human immunodeficiency virus (HIV); or
(2) convicted of an offense relating to controlled substances andthe offense involved:
(A) the delivery by any person to another person; or
(B) the use by any person on another person;
of a contaminated sharp (as defined in IC 16-41-16-2) or otherparaphernalia that creates an epidemiologically demonstrated
risk of transmission of HIV by involving percutaneous contact.
As added by P.L.123-1988, SEC.25. Amended by P.L.184-1989,SEC.24; P.L.1-1990, SEC.346; P.L.2-1992, SEC.876; P.L.2-1993,SEC.182; P.L.125-2007, SEC.4.
IC 35-38-1-10
Presentence investigation; physical or mental examination
Sec. 10. The court may order that the convicted person:
(1) undergo a thorough physical or mental examination in adesignated facility as part of the presentence investigation; and
(2) remain in the facility for examination for not more thanninety (90) days.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-10.5
Screening test for dangerous diseases; sex crimes and controlledsubstances; confirmatory test; presentence investigation; maritalprivilege; mental health service provider's civil and criminalimmunity
Sec. 10.5. (a) The court:
(1) shall order that a person undergo a screening test for thehuman immunodeficiency virus (HIV) if the person is:
(A) convicted of an offense relating to a criminal sexual actand the offense created an epidemiologically demonstratedrisk of transmission of the human immunodeficiency virus(HIV); or
(B) convicted of an offense relating to controlled substancesand the offense involved:
(i) the delivery by any person to another person; or
(ii) the use by any person on another person;
of a contaminated sharp (as defined in IC 16-41-16-2) orother paraphernalia that creates an epidemiologicallydemonstrated risk of transmission of HIV by involvingpercutaneous contact; and
(2) may order that a person undergo a screening test for adangerous disease (as defined in IC 16-41-8-5) in accordancewith IC 16-41-8-5.
(b) If the screening test required by this section indicates thepresence of antibodies to HIV, the court shall order the person toundergo a confirmatory test.
(c) If the confirmatory test confirms the presence of the HIVantibodies, the court shall report the results to the state departmentof health and require a probation officer to conduct a presentenceinvestigation to:
(1) obtain the medical record of the convicted person from thestate department of health under IC 16-41-8-1(a)(3); and
(2) determine whether the convicted person had received riskcounseling that included information on the behavior thatfacilitates the transmission of HIV.
(d) A person who, in good faith: (1) makes a report required to be made under this section; or
(2) testifies in a judicial proceeding on matters arising from thereport;
is immune from both civil and criminal liability due to the offeringof that report or testimony.
(e) The privileged communication between a husband and wife orbetween a health care provider and the health care provider's patientis not a ground for excluding information required under this section.
(f) A mental health service provider (as defined in IC 34-6-2-80)who discloses information that must be disclosed to comply with thissection is immune from civil and criminal liability under Indianastatutes that protect patient privacy and confidentiality.
As added by P.L.123-1988, SEC.26. Amended by P.L.184-1989,SEC.25; P.L.1-1990, SEC.347; P.L.2-1992, SEC.877; P.L.2-1993,SEC.183; P.L.1-1998, SEC.196; P.L.71-1998, SEC.2; P.L.125-2007,SEC.5; P.L.125-2009, SEC.5.
IC 35-38-1-10.6
Crime victims; notice that criminal had antibodies for humanimmunodeficiency virus (HIV); counseling
Sec. 10.6. (a) The state department of health shall notify victimsof an offense relating to a criminal sexual act or an offense relatingto controlled substances if tests conducted under section 10.5 of thischapter or IC 16-41-8-5 confirm that the person tested had antibodiesfor the human immunodeficiency virus (HIV).
(b) The state department of health shall provide counseling topersons notified under this section.
As added by P.L.123-1988, SEC.27. Amended by P.L.1-1990,SEC.348; P.L.2-1992, SEC.878; P.L.71-1998, SEC.3; P.L.125-2007,SEC.6; P.L.125-2009, SEC.6.
IC 35-38-1-10.7
Repealed
(Repealed by P.L.125-2009, SEC.9.)
IC 35-38-1-11
Presentence memorandum by convicted person
Sec. 11. At any time before sentencing, the convicted person mayfile with the court a written memorandum setting forth anyinformation he considers pertinent to the question of sentence. Theconvicted person may attach written statements by others in supportof facts alleged in the memorandum.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-12
Presentence investigation; advising defendant of contents andconclusions; copy of presentence report; opportunity for victim tomake statement; sources of confidential information
Sec. 12. (a) Before imposing sentence, the court shall:
(1) advise the defendant or his counsel and the prosecuting
attorney of the factual contents and conclusions of thepresentence investigation; or
(2) provide the defendant or his counsel and the prosecutingattorney with a copy of the presentence report.
The court also shall offer the victim, if present, an opportunity tomake a statement concerning the crime and the sentence.
(b) The sources of confidential information need not be disclosed.The court shall furnish the factual contents of the presentenceinvestigation or a copy of the presentence report sufficiently inadvance of sentencing so that the defendant will be afforded a fairopportunity to controvert the material included.
As added by P.L.311-1983, SEC.3. Amended by P.L.131-1985,SEC.17.
IC 35-38-1-13
Confidentiality of presentence report or memoranda
Sec. 13. (a) Any:
(1) presentence report or memoranda; and
(2) report of a physical or mental examination;
submitted to the court in connection with sentencing shall be keptconfidential.
(b) The materials specified in subsection (a) may not be madeavailable to any person or public or private agency other than:
(1) the convicted person and his counsel;
(2) the prosecuting attorney;
(3) a probation department;
(4) the community corrections program in which an offender isplaced under IC 35-38-2.6; and
(5) the Indiana criminal justice institute established underIC 5-2-6;
except where specifically required or permitted by statute or uponspecific authorization by the court and the convicted person.
As added by P.L.311-1983, SEC.3. Amended by P.L.135-1993,SEC.5; P.L.292-1995, SEC.1.
IC 35-38-1-14
Imprisonment; transmission of certain information to departmentof correction
Sec. 14. (a) If a convicted person is sentenced to a term ofimprisonment, the court shall send a copy of:
(1) the presentence report;
(2) any presentence memorandum filed by the convicted person;
(3) the report of any physical or mental examination madeincident to the question of sentence;
(4) any record made under IC 35-35-2 or IC 35-35-3;
(5) the abstract of judgment;
(6) the judgment of conviction; and
(7) the sentencing order;
to the department of correction.
(b) Copies of the information sent to the department of correction
under subsection (a) may be sent through any electronic meansapproved by the department of correction.
As added by P.L.311-1983, SEC.3. Amended by P.L.119-2008,SEC.15.
IC 35-38-1-15
Erroneous sentence; nature; correction
Sec. 15. If the convicted person is erroneously sentenced, themistake does not render the sentence void. The sentence shall becorrected after written notice is given to the convicted person. Theconvicted person and his counsel must be present when the correctedsentence is ordered. A motion to correct sentence must be in writingand supported by a memorandum of law specifically pointing out thedefect in the original sentence.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-16
Certified copies of corrected or modified sentence
Sec. 16. Whenever:
(1) a court corrects an erroneous sentence or modifies apreviously imposed sentence; and
(2) the convicted person is incarcerated or is to be incarceratedby the department of correction;
the court shall immediately send certified copies of the corrected ormodified sentence to the department of correction.
As added by P.L.311-1983, SEC.3.
IC 35-38-1-17
Reduction or suspension of sentence
Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person's sentence;
(2) a hearing is held:
(A) at which the convicted person is present; and
(B) of which the prosecuting attorney has been notified; and
(3) the court obtains a report from the department of correctionconcerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court mustincorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsedsince the convicted person began serving the sentence and after ahearing at which the convicted person is present, the court mayreduce or suspend the sentence, subject to the approval of theprosecuting attorney. However, if in a sentencing hearing for aconvicted person conducted after June 30, 2001, the court could haveplaced the convicted person in a community corrections program asan alternative to commitment to the department of correction, thecourt may modify the convicted person's sentence under this sectionwithout the approval of the prosecuting attorney to place theconvicted person in a community corrections program underIC 35-38-2.6. (c) The court must give notice of the order to reduce or suspendthe sentence under this section to the victim (as defined inIC 35-35-3-1) of the crime for which the convicted person is servingthe sentence.
(d) The court may suspend a sentence for a felony under thissection only if suspension is permitted under IC 35-50-2-2.
(e) The court may deny a request to suspend or reduce a sentenceunder this section without making written findings and conclusions.
(f) Notwithstanding subsections (a) and (b), the court is notrequired to conduct a hearing before reducing or suspending asentence if:
(1) the prosecuting attorney has filed with the court anagreement of the reduction or suspension of the sentence; and
(2) the convicted person has filed with the court a waiver of theright to be present when the order to reduce or suspend thesentence is considered.
As added by P.L.311-1983, SEC.3. Amended by P.L.317-1985,SEC.1; P.L.204-1986, SEC.1; P.L.240-1991(ss2), SEC.92;P.L.291-2001, SEC.224; P.L.2-2005, SEC.123; P.L.1-2010,SEC.141.
IC 35-38-1-18
Fines and costs; suspension of fines; commitment instead of fine;default
Sec. 18. (a) Except as provided in subsection (b), whenever thecourt imposes a fine, it shall conduct a hearing to determine whetherthe convicted person is indigent. If the person is not indigent, thecourt shall order:
(1) that the person pay the entire amount at the time sentence ispronounced;
(2) that the person pay the entire amount at some later date;
(3) that the person pay specified parts at designated intervals;or
(4) at the request of the person, commitment of the person to thecounty jail for a period of time set by the court in lieu of a fine.If the court orders a person committed to jail under thissubdivision, the person's total confinement for the crime thatresulted in the conviction must not exceed the maximum termof imprisonment prescribed for the crime under IC 35-50-2 orIC 35-50-3.
(b) A court may impose a fine and suspend payment of all or partof the fine until the convicted person has completed all or part of thesentence. If the court suspends payment of the fine, the court shallconduct a hearing at the time the fine is due to determine whether theconvicted person is indigent. If the convicted person is not indigent,the court shall order the convicted person to pay the fine:
(1) at the time the fine is due; or
(2) in a manner set forth in subsection (a)(2) through (a)(4).
(c) If a court suspends payment of a fine under subsection (b), thecourt retains jurisdiction over the convicted person until the
convicted person has paid the entire amount of the fine.
(d) Upon any default in the payment of the fine:
(1) an attorney representing the county may bring an action ona debt for the unpaid amount;
(2) the court may direct that the person, if the person is notindigent, be committed to the county jail and credited towardpayment at the rate of twenty dollars ($20) for each twenty-four(24) hour period the person is confined, until the amount paidplus the amount credited equals the entire amount due; or
(3) the court may institute contempt proceedings or order theconvicted person's wages, salary, and other income garnished inaccordance with IC 24-4.5-5-105 to enforce the court's order forpayment of the fine.
As added by P.L.311-1983, SEC.3. Amended by P.L.204-1986,SEC.2; P.L.305-1987, SEC.35; P.L.137-1989, SEC.11;P.L.156-2007, SEC.4.
IC 35-38-1-19
Repealed
(Repealed by P.L.50-1984, SEC.5.)
IC 35-38-1-20
Repealed
(Repealed by P.L.305-1987, SEC.38.)
IC 35-38-1-21
Home detention; petition and hearing
Sec. 21. (a) A court that receives a petition from the departmentof correction under IC 35-38-3-5 may, after notice to the prosecutingattorney of the judicial circuit in which the defendant's caseoriginated, hold a hearing for the purpose of determining whether theoffender named in the petition may be placed in home detentionunder IC 35-38-2.5 instead of commitment to the department ofcorrection for the remainder of the offender's minimum sentence.
(b) Notwithstanding IC 35-35-3-3(e), and after a hearing heldunder this section, a sentencing court may order the offender namedin the petition filed under IC 35-38-3-5 to be placed in homedetention under IC 35-38-2.5 instead of commitment to thedepartment of correction for the remainder of the offender'sminimum sentence.
As added by P.L.98-1988, SEC.4.
IC 35-38-1-22
Juveniles; service of misdemeanor sentences in juvenile detentionfacilities
Sec. 22. A court that imposes a sentence for conviction of amisdemeanor upon a person who is less than eighteen (18) years ofage may enter an order requiring that the convicted person serve thesentence in a juvenile detention facility established under IC 31-31-8(or IC 31-6-9-5 before its repeal). However, before an order may be
entered under this section, the court must secure the written approvalof the judge of the juvenile court allowing the detention of the personin the juvenile detention facility.
As added by P.L.173-1988, SEC.2. Amended by P.L.271-1989,SEC.2; P.L.73-1992, SEC.11; P.L.1-1997, SEC.146.
IC 35-38-1-23
Repealed
(Repealed by P.L.183-1999, SEC.4.)
IC 35-38-1-24
Community transition program; Class C or Class D felony
Sec. 24. (a) This section applies to a person if the most seriousoffense for which the person is committed is a Class C or Class Dfelony.
(b) Not later than forty-five (45) days after receiving a noticeunder IC 11-10-11.5-2, the sentencing court may order thedepartment of correction to retain control over a person until theperson completes the person's fixed term of imprisonment, less thecredit time the person has earned with respect to the term, if the courtmakes specific findings that support a determination:
(1) that placement of the person in a community transitionprogram:
(A) places the person in danger of serious bodily injury ordeath; or
(B) represents a substantial threat to the safety of others; or
(2) of other good cause.
If the court issues an order under this section, the department ofcorrection may not assign a person to a community transitionprogram.
(c) The court may make a determination under this sectionwithout a hearing. The court shall consider any written statementpresented to the court by a victim of the offender's crime or by anoffender under IC 11-10-11.5-4.5. The court in its discretion mayconsider statements submitted by a victim after the time allowed forthe submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determinationunder this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination underthis section, the court shall send a copy of the order to the:
(1) prosecuting attorney where the person's case originated; and
(2) department of correction.
As added by P.L.273-1999, SEC.210. Amended by P.L.90-2000,SEC.17.
IC 35-38-1-25
Community transition program; murder or Class A or B felony
Sec. 25. (a) This section applies to a person if the most seriousoffense for which the person is committed is murder, a Class Afelony, or a Class B felony. (b) A sentencing court may sentence a person or modify thesentence of a person to assign the person to a community transitionprogram for any period that begins after the person's communitytransition program commencement date (as defined in IC 11-8-1-5.6)and ends when the person completes the person's fixed term ofimprisonment, less the credit time the person has earned with respectto the term, if the court makes specific findings of fact that supporta determination that it is in the best interests of justice to make theassignment. The order may include any other condition that the courtcould impose if the court had placed the person on probation underIC 35-38-2 or in a community corrections program underIC 35-38-2.6.
(c) The court may make a determination under this sectionwithout a hearing. The court shall consider any written statementpresented to the court by a victim of the offender's crime or by anoffender under IC 11-10-11.5-4.5. The court in its discretion mayconsider statements submitted by a victim after the time allowed forthe submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determinationunder this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination underthis section, the court shall send a copy of the order to the:
(1) prosecuting attorney where the person's case originated; and
(2) department of correction.
As added by P.L.273-1999, SEC.211. Amended by P.L.90-2000,SEC.18; P.L.85-2004, SEC.39.
IC 35-38-1-26
Repealed
(Repealed by P.L.90-2000, SEC.25.)
IC 35-38-1-27
Persons required to provide a DNA sample as a condition of asentence
Sec. 27. (a) If a court imposes a sentence that does not involve acommitment to the department of correction, the court shall requirea person:
(1) convicted of an offense described in IC 10-13-6-10; and
(2) who has not previously provided a DNA sample inaccordance with IC 10-13-6;
to provide a DNA sample as a condition of the sentence.
(b) If a person described in subsection (a) is confined at the timeof sentencing, the court shall order the person to provide a DNAsample immediately after sentencing.
(c) If a person described in subsection (a) is not confined at thetime of sentencing, the agency supervising the person aftersentencing shall establish the date, time, and location for the personto provide a DNA sample. However, the supervising agency mustrequire that the DNA sample be provided not more than seven (7)days after sentencing. A supervising agency's failure to obtain a
DNA sample not more than seven (7) days after sentencing does notpermit a person required to provide a DNA sample to challenge therequirement that the person provide a DNA sample at a later date.
(d) A person's failure to provide a DNA sample is grounds forrevocation of the person's probation, community correctionsplacement, or other conditional release.
As added by P.L.140-2006, SEC.22 and P.L.173-2006, SEC.22.
IC 35-38-1-28
Fingerprinting required after sentencing; exception; transmissionof fingerprints to prosecuting attorney and department ofcorrection; immunity
Sec. 28. (a) Except as provided in subsection (c), immediatelyafter sentencing a defendant for an offense, the court shall order thedefendant to be fingerprinted by an individual qualified to takefingerprints. The fingerprints may be recorded in any reliablemanner, including by the use of a digital fingerprinting device.
(b) The court shall order a law enforcement officer to provide thefingerprints to the prosecuting attorney and the state policedepartment, in hard copy or in an electronic format approved by thesecurity and privacy council established by IC 10-13-3-34.
(c) The court is not required to order the defendant to befingerprinted if the defendant was previously arrested and processedat the county jail.
(d) A clerk, court, law enforcement officer, or prosecutingattorney is immune from civil liability for an error or omission in thetransmission of fingerprints, case history data, or sentencing data,unless the error or omission constitutes willful or wanton misconductor gross negligence.
As added by P.L.216-2007, SEC.38.
IC 35-38-1-29
Lifetime parole for sexually violent predators not committed to thedepartment of correction
Sec. 29. (a) This section applies only to a sexually violentpredator, including a person who is a sexually violent predator byoperation of law for committing an offense under IC 35-38-1-7.5(b).
(b) If a court imposes a sentence on a person described insubsection (a) that does not involve a commitment to the departmentof correction, the court shall order the parole board to place theperson on lifetime parole and supervise the person in the samemanner that the parole board supervises a sexually violent predatorwho has been released from imprisonment and placed on lifetimeparole under IC 35-50-6-1(e).
(c) If a person described in subsection (b) is also required to besupervised by a court, a probation department, a communitycorrections program, a community transition program, or anothersimilar program upon the person's release from imprisonment, theparole board may:
(1) supervise the person while the person is being supervised by
the other supervising agency; or
(2) permit the other supervising agency to exercise all or part ofthe parole board's supervisory responsibility during the periodin which the other supervising agency is required to supervisethe person;
in accordance with IC 35-50-6-1(g).
As added by P.L.216-2007, SEC.39.
IC 35-38-1-30
Sentence; refrain from contact
Sec. 30. A sentencing court may require that, as a condition of aperson's executed sentence, the person shall refrain from any director indirect contact with an individual.
As added by P.L.104-2008, SEC.21.