CHAPTER 2. DEATH SENTENCE AND SENTENCES FOR FELONIES AND HABITUAL OFFENDERS
IC 35-50-2
Chapter 2. Death Sentence and Sentences for Felonies andHabitual Offenders
IC 35-50-2-1
Definitions
Sec. 1. (a) As used in this chapter, "Class D felony conviction"means a conviction of a Class D felony in Indiana and a conviction,in any other jurisdiction at any time, with respect to which theconvicted person might have been imprisoned for more than one (1)year. However, it does not include a conviction with respect to whichthe person has been pardoned, or a conviction of a Class Amisdemeanor under section 7(b) of this chapter.
(b) As used in this chapter, "felony conviction" means aconviction, in any jurisdiction at any time, with respect to which theconvicted person might have been imprisoned for more than one (1)year. However, it does not include a conviction with respect to whichthe person has been pardoned, or a conviction of a Class Amisdemeanor under section 7(b) of this chapter.
(c) As used in this chapter, "minimum sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20) years;
(3) for a Class B felony, six (6) years;
(4) for a Class C felony, two (2) years; and
(5) for a Class D felony, one-half (1/2) year.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.114; P.L.334-1983, SEC.1; P.L.98-1988, SEC.8;P.L.243-2001, SEC.2 and P.L.291-2001, SEC.225.
IC 35-50-2-1.3
Advisory sentences
Sec. 1.3. (a) For purposes of sections 3 through 7 of this chapter,"advisory sentence" means a guideline sentence that the court mayvoluntarily consider as the midpoint between the maximum sentenceand the minimum sentence.
(b) Except as provided in subsection (c), a court is not required touse an advisory sentence.
(c) In imposing:
(1) consecutive sentences for felony convictions that are notcrimes of violence (as defined in IC 35-50-1-2(a)) arising out ofan episode of criminal conduct, in accordance withIC 35-50-1-2;
(2) an additional fixed term to an habitual offender undersection 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender undersection 14 of this chapter;
a court is required to use the appropriate advisory sentence inimposing a consecutive sentence or an additional fixed term.However, the court is not required to use the advisory sentence inimposing the sentence for the underlying offense. (d) This section does not require a court to use an advisorysentence in imposing consecutive sentences for felony convictionsthat do not arise out of an episode of criminal conduct.
As added by P.L.71-2005, SEC.5. Amended by P.L.178-2007, SEC.4.
IC 35-50-2-1.4
"Criminal gang" defined
Sec. 1.4. For purposes of section 15 of this chapter, "criminalgang" means a group with at least three (3) members thatspecifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continuedmembership;
the commission of a felony or an act that would be a felony ifcommitted by an adult or the offense of battery (IC 35-42-2-1).
As added by P.L.109-2006, SEC.2. Amended by P.L.192-2007,SEC.12.
IC 35-50-2-1.5
"Individual with mental retardation" defined
Sec. 1.5. As used in this chapter, "individual with mentalretardation" has the meaning set forth in IC 35-36-9-2.
As added by P.L.158-1994, SEC.4. Amended by P.L.99-2007,SEC.211.
IC 35-50-2-1.8
"Sex offense against a child" defined
Sec. 1.8. As used in this chapter, "sex offense against a child"means an offense under IC 35-42-4 in which the victim is a child lessthan eighteen (18) years of age.
As added by P.L.53-2005, SEC.1.
IC 35-50-2-2
Suspension of sentence; limitations
Sec. 2. (a) The court may suspend any part of a sentence for afelony, except as provided in this section or in section 2.1 of thischapter.
(b) Except as provided in subsection (i), with respect to thefollowing crimes listed in this subsection, the court may suspendonly that part of the sentence that is in excess of the minimumsentence, unless the court has approved placement of the offender ina forensic diversion program under IC 11-12-3.7:
(1) The crime committed was a Class A felony or Class Bfelony and the person has a prior unrelated felony conviction.
(2) The crime committed was a Class C felony and less thanseven (7) years have elapsed between the date the person wasdischarged from probation, imprisonment, or parole, whicheveris later, for a prior unrelated felony conviction and the date the
person committed the Class C felony for which the person isbeing sentenced.
(3) The crime committed was a Class D felony and less thanthree (3) years have elapsed between the date the person wasdischarged from probation, imprisonment, or parole, whicheveris later, for a prior unrelated felony conviction and the date theperson committed the Class D felony for which the person isbeing sentenced. However, the court may suspend the minimumsentence for the crime only if the court orders home detentionunder IC 35-38-1-21 or IC 35-38-2.5-5 instead of the minimumsentence specified for the crime under this chapter.
(4) The felony committed was:
(A) murder (IC 35-42-1-1);
(B) battery (IC 35-42-2-1) with a deadly weapon or batterycausing death;
(C) sexual battery (IC 35-42-4-8) with a deadly weapon;
(D) kidnapping (IC 35-42-3-2);
(E) confinement (IC 35-42-3-3) with a deadly weapon;
(F) rape (IC 35-42-4-1) as a Class A felony;
(G) criminal deviate conduct (IC 35-42-4-2) as a Class Afelony;
(H) except as provided in subsection (i), child molesting (IC35-42-4-3) as a Class A or Class B felony, unless:
(i) the felony committed was child molesting as a Class Bfelony;
(ii) the victim was not less than twelve (12) years old atthe time the offense was committed;
(iii) the person is not more than four (4) years older thanthe victim, or more than five (5) years older than thevictim if the relationship between the person and thevictim was a dating relationship or an ongoing personalrelationship (not including a family relationship);
(iv) the person did not have a position of authority orsubstantial influence over the victim; and
(v) the person has not committed another sex offense (asdefined in IC 11-8-8-5.2) (including a delinquent act thatwould be a sex offense if committed by an adult) againstany other person;
(I) robbery (IC 35-42-5-1) resulting in serious bodily injuryor with a deadly weapon;
(J) arson (IC 35-43-1-1) for hire or resulting in seriousbodily injury;
(K) burglary (IC 35-43-2-1) resulting in serious bodily injuryor with a deadly weapon;
(L) resisting law enforcement (IC 35-44-3-3) with a deadlyweapon;
(M) escape (IC 35-44-3-5) with a deadly weapon;
(N) rioting (IC 35-45-1-2) with a deadly weapon;
(O) dealing in cocaine or a narcotic drug (IC 35-48-4-1) ifthe court finds the person possessed a firearm (as defined in
IC 35-47-1-5) at the time of the offense, or the persondelivered or intended to deliver to a person under eighteen(18) years of age at least three (3) years junior to the personand was on a school bus or within one thousand (1,000) feetof:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(P) dealing in methamphetamine (IC 35-48-4-1.1) if thecourt finds the person possessed a firearm (as defined inIC 35-47-1-5) at the time of the offense, or the persondelivered or intended to deliver the methamphetamine pureor adulterated to a person under eighteen (18) years of ageat least three (3) years junior to the person and was on aschool bus or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(Q) dealing in a schedule I, II, or III controlled substance (IC35-48-4-2) if the court finds the person possessed a firearm(as defined in IC 35-47-1-5) at the time of the offense, or theperson delivered or intended to deliver to a person undereighteen (18) years of age at least three (3) years junior tothe person and was on a school bus or within one thousand(1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(R) an offense under IC 9-30-5 (operating a vehicle whileintoxicated) and the person who committed the offense hasaccumulated at least two (2) prior unrelated convictionsunder IC 9-30-5;
(S) an offense under IC 9-30-5-5(b) (operating a vehiclewhile intoxicated causing death);
(T) aggravated battery (IC 35-42-2-1.5); or
(U) disarming a law enforcement officer (IC 35-44-3-3.5).
(c) Except as provided in subsection (e), whenever the courtsuspends a sentence for a felony, it shall place the person onprobation under IC 35-38-2 for a fixed period to end not later thanthe date that the maximum sentence that may be imposed for thefelony will expire.
(d) The minimum sentence for a person convicted of voluntarymanslaughter may not be suspended unless the court finds at thesentencing hearing that the crime was not committed by means of adeadly weapon.
(e) Whenever the court suspends that part of the sentence of a sexor violent offender (as defined in IC 11-8-8-5) that is suspendible
under subsection (b), the court shall place the sex or violent offenderon probation under IC 35-38-2 for not more than ten (10) years.
(f) An additional term of imprisonment imposed underIC 35-50-2-11 may not be suspended.
(g) A term of imprisonment imposed under IC 35-47-10-6 orIC 35-47-10-7 may not be suspended if the commission of theoffense was knowing or intentional.
(h) A term of imprisonment imposed for an offense underIC 35-48-4-6(b)(1)(B) or IC 35-48-4-6.1(b)(1)(B) may not besuspended.
(i) If a person is:
(1) convicted of child molesting (IC 35-42-4-3) as a Class Afelony against a victim less than twelve (12) years of age; and
(2) at least twenty-one (21) years of age;
the court may suspend only that part of the sentence that is in excessof thirty (30) years.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.115; Acts 1979, P.L.305, SEC.1; Acts 1982, P.L.204,SEC.39; P.L.334-1983, SEC.2; P.L.284-1985, SEC.3; P.L.211-1986,SEC.1; P.L.98-1988, SEC.9; P.L.351-1989(ss), SEC.4;P.L.214-1991, SEC.2; P.L.240-1991(ss2), SEC.98; P.L.11-1994,SEC.17; P.L.203-1996, SEC.8; P.L.96-1996, SEC.7; P.L.220-1997,SEC.1; P.L.188-1999, SEC.8; P.L.17-2001, SEC.30; P.L.222-2001,SEC.6; P.L.238-2001, SEC.21; P.L.116-2002, SEC.25;P.L.224-2003, SEC.126; P.L.85-2004, SEC.11; P.L.213-2005,SEC.7; P.L.151-2006, SEC.28; P.L.140-2006, SEC.36 andP.L.173-2006, SEC.36; P.L.1-2007, SEC.236; P.L.216-2007,SEC.50; P.L.64-2008, SEC.2.
IC 35-50-2-2.1
Suspension; persons with juvenile record
Sec. 2.1. (a) Except as provided in subsection (b) or section 2 ofthis chapter, the court may not suspend a sentence for a felony for aperson with a juvenile record when:
(1) the juvenile record includes findings that the juvenile acts,if committed by an adult, would constitute:
(A) one (1) Class A or Class B felony;
(B) two (2) Class C or Class D felonies; or
(C) one (1) Class C and one (1) Class D felony; and
(2) less than three (3) years have elapsed between commissionof the juvenile acts that would be felonies if committed by anadult and the commission of the felony for which the person isbeing sentenced.
(b) Notwithstanding subsection (a), the court may suspend anypart of the sentence for a felony, except as provided in section 2 ofthis chapter, if it finds that:
(1) the crime was the result of circumstances unlikely to recur;
(2) the victim of the crime induced or facilitated the offense;
(3) there are substantial grounds tending to excuse or justify thecrime, though failing to establish a defense; or (4) the acts in the juvenile record would not be Class A or ClassB felonies if committed by an adult, and the convicted personis to undergo home detention under IC 35-38-1-21 instead of theminimum sentence specified for the crime under this chapter.
As added by P.L.284-1985, SEC.4. Amended by P.L.331-1987,SEC.1; P.L.98-1988, SEC.10.
IC 35-50-2-3
Murder
Sec. 3. (a) A person who commits murder shall be imprisoned fora fixed term of between forty-five (45) and sixty-five (65) years, withthe advisory sentence being fifty-five (55) years. In addition, theperson may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), a person who was:
(1) at least eighteen (18) years of age at the time the murder wascommitted may be sentenced to:
(A) death; or
(B) life imprisonment without parole; and
(2) at least sixteen (16) years of age but less than eighteen (18)years of age at the time the murder was committed may besentenced to life imprisonment without parole;
under section 9 of this chapter unless a court determines underIC 35-36-9 that the person is an individual with mental retardation.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.116; P.L.332-1987, SEC.1; P.L.250-1993, SEC.1;P.L.164-1994, SEC.2; P.L.158-1994, SEC.5; P.L.2-1995, SEC.128;P.L.148-1995, SEC.4; P.L.117-2002, SEC.1; P.L.71-2005, SEC.6;P.L.99-2007, SEC.212.
IC 35-50-2-4
Class A felony
Sec. 4. A person who commits a Class A felony shall beimprisoned for a fixed term of between twenty (20) and fifty (50)years, with the advisory sentence being thirty (30) years. In addition,the person may be fined not more than ten thousand dollars($10,000).
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.117; P.L.164-1994, SEC.3; P.L.148-1995, SEC.5;P.L.71-2005, SEC.7.
IC 35-50-2-5
Class B felony
Sec. 5. A person who commits a Class B felony shall beimprisoned for a fixed term of between six (6) and twenty (20) years,with the advisory sentence being ten (10) years. In addition, theperson may be fined not more than ten thousand dollars ($10,000).
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.118; P.L.71-2005, SEC.8.
IC 35-50-2-6 Class C felony; commission of nonsupport of child as Class Dfelony
Sec. 6. (a) A person who commits a Class C felony shall beimprisoned for a fixed term of between two (2) and eight (8) years,with the advisory sentence being four (4) years. In addition, theperson may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committednonsupport of a child as a Class C felony under IC 35-46-1-5, uponmotion of the prosecuting attorney, the court may enter judgment ofconviction of a Class D felony under IC 35-46-1-5 and sentence theperson accordingly. The court shall enter in the record detailedreasons for the court's action when the court enters a judgment ofconviction of a Class D felony under this subsection.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.119; P.L.167-1990, SEC.1; P.L.213-1996, SEC.5;P.L.71-2005, SEC.9.
IC 35-50-2-7
Class D felony
Sec. 7. (a) A person who commits a Class D felony shall beimprisoned for a fixed term of between six (6) months and three (3)years, with the advisory sentence being one and one-half (1 1/2)years. In addition, the person may be fined not more than tenthousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed aClass D felony, the court may enter judgment of conviction of aClass A misdemeanor and sentence accordingly. However, the courtshall enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony forwhich judgment was entered as a conviction of a Class Amisdemeanor; and
(B) the prior felony was committed less than three (3) yearsbefore the second felony was committed;
(2) the offense is domestic battery as a Class D felony underIC 35-42-2-1.3; or
(3) the offense is possession of child pornography (IC35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its actionwhenever it exercises the power to enter judgment of conviction ofa Class A misdemeanor granted in this subsection.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.120; Acts 1982, P.L.204, SEC.40; P.L.334-1983,SEC.3; P.L.136-1987, SEC.7; P.L.167-1990, SEC.2; P.L.188-1999,SEC.9; P.L.98-2003, SEC.3; P.L.71-2005, SEC.10.
IC 35-50-2-7.1
Repealed
(Repealed by P.L.164-1993, SEC.14.)
IC 35-50-2-8
Habitual offenders
Sec. 8. (a) Except as otherwise provided in this section, the statemay seek to have a person sentenced as a habitual offender for anyfelony by alleging, on a page separate from the rest of the charginginstrument, that the person has accumulated two (2) prior unrelatedfelony convictions.
(b) The state may not seek to have a person sentenced as ahabitual offender for a felony offense under this section if:
(1) the offense is a misdemeanor that is enhanced to a felony inthe same proceeding as the habitual offender proceeding solelybecause the person had a prior unrelated conviction;
(2) the offense is an offense under IC 9-30-10-16 orIC 9-30-10-17; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 orIC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of thischapter.
(C) The total number of unrelated convictions that theperson has for:
(i) dealing in or selling a legend drug underIC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC35-48-4-4);
does not exceed one (1).
(c) A person has accumulated two (2) prior unrelated felonyconvictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was committedafter sentencing for the first prior unrelated felony conviction;and
(2) the offense for which the state seeks to have the personsentenced as a habitual offender was committed aftersentencing for the second prior unrelated felony conviction.
(d) A conviction does not count for purposes of this section as aprior unrelated felony conviction if:
(1) the conviction has been set aside;
(2) the conviction is one for which the person has beenpardoned; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 orIC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of thischapter.
(C) The total number of unrelated convictions that the
person has for:
(i) dealing in or selling a legend drug underIC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC35-48-4-4);
does not exceed one (1).
(e) The requirements in subsection (b) do not apply to a priorunrelated felony conviction that is used to support a sentence as ahabitual offender. A prior unrelated felony conviction may be usedunder this section to support a sentence as a habitual offender evenif the sentence for the prior unrelated offense was enhanced for anyreason, including an enhancement because the person had beenconvicted of another offense. However, a prior unrelated felonyconviction under IC 9-30-10-16, IC 9-30-10-17, IC 9-12-3-1(repealed), or IC 9-12-3-2 (repealed) may not be used to support asentence as a habitual offender.
(f) If the person was convicted of the felony in a jury trial, the juryshall reconvene for the sentencing hearing. If the trial was to thecourt or the judgment was entered on a guilty plea, the court aloneshall conduct the sentencing hearing under IC 35-38-1-3.
(g) A person is a habitual offender if the jury (if the hearing is byjury) or the court (if the hearing is to the court alone) finds that thestate has proved beyond a reasonable doubt that the person hadaccumulated two (2) prior unrelated felony convictions.
(h) The court shall sentence a person found to be a habitualoffender to an additional fixed term that is not less than the advisorysentence for the underlying offense nor more than three (3) times theadvisory sentence for the underlying offense. However, theadditional sentence may not exceed thirty (30) years.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983, SEC.1;P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993, SEC.13;P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001, SEC.3;P.L.291-2001, SEC.226; P.L.71-2005, SEC.11.
IC 35-50-2-8.5
Life imprisonment without parole upon third felony conviction orsecond sex offense against a child
Sec. 8.5. (a) The state may seek to have a person sentenced to lifeimprisonment without parole for any felony described in section2(b)(4) of this chapter by alleging, on a page separate from the restof the charging instrument, that the person has accumulated two (2)prior unrelated felony convictions described in section 2(b)(4) of thischapter.
(b) The state may seek to have a person sentenced to life
imprisonment without parole for a Class A felony under IC 35-42-4that is a sex offense against a child by alleging, on a page separatefrom the rest of the charging instrument, that the person has a priorunrelated Class A felony conviction under IC 35-42-4 that is a sexoffense against a child.
(c) If the person was convicted of the felony in a jury trial, thejury shall reconvene to hear evidence on the life imprisonmentwithout parole allegation. If the person was convicted of the felonyby trial to the court without a jury or if the judgment was entered toguilty plea, the court alone shall hear evidence on the lifeimprisonment without parole allegation.
(d) A person is subject to life imprisonment without parole if thejury (in a case tried by a jury) or the court (in a case tried by thecourt or on a judgment entered on a guilty plea) finds that the statehas proved beyond a reasonable doubt that the person:
(1) has accumulated two (2) prior unrelated convictions foroffenses described in section 2(b)(4) of this chapter; or
(2) has a prior unrelated Class A felony conviction underIC 35-42-4 that is a sex offense against a child.
(e) The court may sentence a person found to be subject to lifeimprisonment without parole under this section to life imprisonmentwithout parole.
As added by P.L.158-1994, SEC.6. Amended by P.L.53-2005, SEC.2.
IC 35-50-2-9
Death penalty sentencing procedure
Sec. 9. (a) The state may seek either a death sentence or asentence of life imprisonment without parole for murder by alleging,on a page separate from the rest of the charging instrument, theexistence of at least one (1) of the aggravating circumstances listedin subsection (b). In the sentencing hearing after a person isconvicted of murder, the state must prove beyond a reasonable doubtthe existence of at least one (1) of the aggravating circumstancesalleged. However, the state may not proceed against a defendantunder this section if a court determines at a pretrial hearing underIC 35-36-9 that the defendant is an individual with mentalretardation.
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killingthe victim while committing or attempting to commit any of thefollowing:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3). (J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawfuldetonation of an explosive with intent to injure person ordamage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring anotherperson to kill.
(6) The victim of the murder was a corrections employee,probation officer, parole officer, community corrections worker,home detention officer, fireman, judge, or law enforcementofficer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performedwhile acting in the course of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time,regardless of whether the defendant has been convicted of thatother murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for thecommission of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant burned, mutilated, or tortured the victimwhile the victim was alive.
(12) The victim of the murder was less than twelve (12) yearsof age.
(13) The victim was a victim of any of the following offensesfor which the defendant was convicted:
(A) Battery as a Class D felony or as a Class C felony underIC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The victim of the murder was listed by the state or knownby the defendant to be a witness against the defendant and thedefendant committed the murder with the intent to prevent theperson from testifying.
(15) The defendant committed the murder by intentionallydischarging a firearm (as defined in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murderresulted in the intentional killing of a fetus that has attainedviability (as defined in IC 16-18-2-365).
(c) The mitigating circumstances that may be considered under
this section are as follows:
(1) The defendant has no significant history of prior criminalconduct.
(2) The defendant was under the influence of extreme mental oremotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to thedefendant's conduct.
(4) The defendant was an accomplice in a murder committed byanother person, and the defendant's participation was relativelyminor.
(5) The defendant acted under the substantial domination ofanother person.
(6) The defendant's capacity to appreciate the criminality of thedefendant's conduct or to conform that conduct to therequirements of law was substantially impaired as a result ofmental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age atthe time the murder was committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder in a jury trial, thejury shall reconvene for the sentencing hearing. If the trial was to thecourt, or the judgment was entered on a guilty plea, the court aloneshall conduct the sentencing hearing. The jury or the court mayconsider all the evidence introduced at the trial stage of theproceedings, together with new evidence presented at the sentencinghearing. The court shall instruct the jury concerning the statutorypenalties for murder and any other offenses for which the defendantwas convicted, the potential for consecutive or concurrentsentencing, and the availability of good time credit and clemency.The court shall instruct the jury that, in order for the jury torecommend to the court that the death penalty or life imprisonmentwithout parole should be imposed, the jury must find at least one (1)aggravating circumstance beyond a reasonable doubt as described insubsection (l) and shall provide a special verdict form for eachaggravating circumstance alleged. The defendant may present anyadditional evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, except asprovided by IC 35-36-9, if the hearing is by jury, the jury shallrecommend to the court whether the death penalty or lifeimprisonment without parole, or neither, should be imposed. Thejury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the juryreaches a sentencing recommendation, the court shall sentence thedefendant accordingly. After a court pronounces sentence, arepresentative of the victim's family and friends may present astatement regarding the impact of the crime on family and friends.
The impact statement may be submitted in writing or given orally bythe representative. The statement shall be given in the presence of thedefendant.
(f) If a jury is unable to agree on a sentence recommendation afterreasonable deliberations, the court shall discharge the jury andproceed as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided byIC 35-36-9, the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
(h) If a court sentences a defendant to death, the court shall orderthe defendant's execution to be carried out not later than one (1) yearand one (1) day after the date the defendant was convicted. Thesupreme court has exclusive jurisdiction to stay the execution of adeath sentence. If the supreme court stays the execution of a deathsentence, the supreme court shall order a new date for the defendant'sexecution.
(i) If a person sentenced to death by a court files a petition forpost-conviction relief, the court, not later than ninety (90) days afterthe date the petition is filed, shall set a date to hold a hearing toconsider the petition. If a court does not, within the ninety (90) dayperiod, set the date to hold the hearing to consider the petition, thecourt's failure to set the hearing date is not a basis for additionalpost-conviction relief. The attorney general shall answer the petitionfor post-conviction relief on behalf of the state. At the request of theattorney general, a prosecuting attorney shall assist the attorneygeneral. The court shall enter written findings of fact and conclusionsof law concerning the petition not later than ninety (90) days after thedate the hearing concludes. However, if the court determines that thepetition is without merit, the court may dismiss the petition withinninety (90) days without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supremecourt. The review, which shall be heard under rules adopted by thesupreme court, shall be given priority over all other cases. Thesupreme court's review must take into consideration all claims thatthe:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose asentence; and
(3) sentence:
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by thesentencing court for the defendant's execution under subsection (h),the supreme court shall stay the execution of the death sentence andset a new date to carry out the defendant's execution.
(k) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file awritten petition with the supreme court seeking to present newevidence challenging the person's guilt or the appropriateness of thedeath sentence if the person serves notice on the attorney general.The supreme court shall determine, with or without a hearing,whether the person has presented previously undiscovered evidencethat undermines confidence in the conviction or the death sentence.If necessary, the supreme court may remand the case to the trial courtfor an evidentiary hearing to consider the new evidence and its effecton the person's conviction and death sentence. The supreme courtmay not make a determination in the person's favor nor make adecision to remand the case to the trial court for an evidentiaryhearing without first providing the attorney general with anopportunity to be heard on the matter.
(l) Before a sentence may be imposed under this section, the jury,in a proceeding under subsection (e), or the court, in a proceedingunder subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at leastone (1) of the aggravating circumstances listed in subsection (b)exists; and
(2) any mitigating circumstances that exist are outweighed bythe aggravating circumstance or circumstances.
As added by Acts 1977, P.L.340, SEC.122. Amended byP.L.336-1983, SEC.1; P.L.212-1986, SEC.1; P.L.332-1987, SEC.2;P.L.320-1987, SEC.2; P.L.296-1989, SEC.2; P.L.138-1989, SEC.6;P.L.1-1990, SEC.354; P.L.230-1993, SEC.5; P.L.250-1993, SEC.2;P.L.158-1994, SEC.7; P.L.306-1995, SEC.1; P.L.228-1996, SEC.1;P.L.216-1996, SEC.25; P.L.261-1997, SEC.7; P.L.80-2002, SEC.1;P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1;P.L.1-2006, SEC.550; P.L.99-2007, SEC.213.
IC 35-50-2-10
Habitual substance offenders
Sec. 10. (a) As used in this section:
(1) "Drug" means a drug or a controlled substance (as definedin IC 35-48-1).
(2) "Substance offense" means a Class A misdemeanor or afelony in which the possession, use, abuse, delivery,transportation, or manufacture of alcohol or drugs is a materialelement of the crime. The term includes an offense underIC 9-30-5 and an offense under IC 9-11-2 (before its repeal).
(b) The state may seek to have a person sentenced as a habitualsubstance offender for any substance offense by alleging, on a pageseparate from the rest of the charging instrument, that the person hasaccumulated two (2) prior unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for asubstance offense committed after sentencing for a prior unrelatedsubstance offense conviction, the person has accumulated two (2)prior unrelated substance offense convictions. However, a convictiondoes not count for purposes of this subsection if: (1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the substance offense in a jurytrial, the jury shall reconvene for the sentencing hearing. If the trialwas to the court, or the judgment was entered on a guilty plea, thecourt alone shall conduct the sentencing hearing, under IC 35-38-1-3.
(e) A person is a habitual substance offender if the jury (if thehearing is by jury) or the court (if the hearing is to the court alone)finds that the state has proved beyond a reasonable doubt that theperson had accumulated two (2) prior unrelated substance offenseconvictions.
(f) The court shall sentence a person found to be a habitualsubstance offender to an additional fixed term of at least three (3)years but not more than eight (8) years imprisonment, to be added tothe term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.If the court finds that:
(1) three (3) years or more have elapsed since the date theperson was discharged from probation, imprisonment, or parole(whichever is later) for the last prior unrelated substanceoffense conviction and the date the person committed thesubstance offense for which the person is being sentenced as ahabitual substance offender; or
(2) all of the substance offenses for which the person has beenconvicted are substance offenses under IC 16-42-19 orIC 35-48-4, the person has not been convicted of a substanceoffense listed in section 2(b)(4) of this chapter, and the totalnumber of convictions that the person has for:
(A) dealing in or selling a legend drug underIC 16-42-19-27;
(B) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(C) dealing in a schedule I, II, or III controlled substance (IC35-48-4-2);
(D) dealing in a schedule IV controlled substance (IC35-48-4-3); and
(E) dealing in a schedule V controlled substance (IC35-48-4-4);
does not exceed one (1);
then the court may reduce the additional fixed term. However, thecourt may not reduce the additional fixed term to less than one (1)year.
(g) If a reduction of the additional year fixed term is authorizedunder subsection (f), the court may also consider the aggravating orcircumstances in IC 35-38-1-7.1(a) and the mitigating circumstancesin IC 35-38-1-7.1(b) to:
(1) decide the issue of granting a reduction; or
(2) determine the number of years, if any, to be subtractedunder subsection (f).
As added by P.L.335-1983, SEC.2. Amended by P.L.327-1985,SEC.5; P.L.98-1988, SEC.11; P.L.1-1990, SEC.355; P.L.96-1996,SEC.8; P.L.97-1996, SEC.5; P.L.2-1997, SEC.77; P.L.291-2001,
SEC.227; P.L.71-2005, SEC.12; P.L.213-2005, SEC.5; P.L.1-2006,SEC.551.
IC 35-50-2-11
Firearm used in commission of offense; separate charge; additionalsentence
Sec. 11. (a) As used in this section, "firearm" has the meaning setforth in IC 35-47-1-5.
(b) As used in this section, "offense" means:
(1) a felony under IC 35-42 that resulted in death or seriousbodily injury;
(2) kidnapping; or
(3) criminal confinement as a Class B felony.
(c) The state may seek, on a page separate from the rest of acharging instrument, to have a person who allegedly committed anoffense sentenced to an additional fixed term of imprisonment if thestate can show beyond a reasonable doubt that the person knowinglyor intentionally used a firearm in the commission of the offense.
(d) If the person was convicted of the offense in a jury trial, thejury shall reconvene to hear evidence in the enhancement hearing. Ifthe trial was to the court, or the judgment was entered on a guiltyplea, the court alone shall hear evidence in the enhancement hearing.
(e) If the jury (if the hearing is by jury) or the court (if the hearingis to the court alone) finds that the state has proved beyond areasonable doubt that the person knowingly or intentionally used afirearm in the commission of the offense, the court may sentence theperson to an additional fixed term of imprisonment of five (5) years.
As added by P.L.140-1994, SEC.15. Amended by P.L.203-1996,SEC.9; P.L.71-2005, SEC.13.
IC 35-50-2-12
Characteristics of incarcerated offenders; publication of findings
Sec. 12. The Indiana criminal justice institute shall reviewcharacteristics of offenders committed to the department ofcorrection over such period of time it deems appropriate and of theoffenses committed by those offenders in order to ascertain normsused by the trial courts in sentencing. The Indiana criminal justiceinstitute shall from time to time publish its findings in the IndianaRegister and provide its findings to the legislative services agencyand the judicial conference of Indiana.
As added by P.L.164-1994, SEC.4.
IC 35-50-2-13
Use of firearms in controlled substance offenses under IC 35-48-4-1through IC 35-48-4-4
Sec. 13. (a) The state may seek, on a page separate from the restof a charging instrument, to have a person who allegedly committedan offense of dealing in a controlled substance under IC 35-48-4-1through IC 35-48-4-4 sentenced to an additional fixed term ofimprisonment if the state can show beyond a reasonable doubt that
the person knowingly or intentionally:
(1) used a firearm; or
(2) possessed a:
(A) handgun in violation of IC 35-47-2-1;
(B) sawed-off shotgun in violation of IC 35-47-5-4.1; or
(C) machine gun in violation of IC 35-47-5-8;
while committing the offense.
(b) If the person was convicted of the offense in a jury trial, thejury shall reconvene to hear evidence in the enhancement hearing. Ifthe trial was to the court, or the judgment was entered on a guiltyplea, the court alone shall hear evidence in the enhancement hearing.
(c) If the jury (if the hearing is by jury) or the court (if the hearingis to the court alone) finds that the state has proved beyond areasonable doubt that the person knowingly or intentionallycommitted an offense as described in subsection (a), the court maysentence the person to an additional fixed term of imprisonment ofnot more than five (5) years, except as follows:
(1) If the firearm is a sawed-off shotgun, the court may sentencethe person to an additional fixed term of imprisonment of notmore than ten (10) years.
(2) If the firearm is a machine gun or is equipped with a firearmsilencer or firearm muffler, the court may sentence the personto an additional fixed term of imprisonment of not more thantwenty (20) years. The additional sentence under thissubdivision is in addition to any additional sentence imposedunder section 11 of this chapter for use of a firearm in thecommission of an offense.
As added by P.L.148-1995, SEC.6. Amended by P.L.71-2005,SEC.14.
IC 35-50-2-14
Repeat sexual offender
Sec. 14. (a) As used in this section, "sex offense" means a felonyconviction:
(1) under IC 35-42-4-1 through IC 35-42-4-9 or underIC 35-46-1-3;
(2) for an attempt or conspiracy to commit an offense describedin subdivision (1); or
(3) for an offense under the laws of another jurisdiction,including a military court, that is substantially similar to anoffense described in subdivision (1).
(b) The state may seek to have a person sentenced as a repeatsexual offender for a sex offense described in subsection (a)(1) or(a)(2) by alleging, on a page separate from the rest of the charginginstrument, that the person has accumulated one (1) prior unrelatedfelony conviction for a sex offense described in subsection (a).
(c) After a person has been convicted and sentenced for a felonydescribed in subsection (a)(1) or (a)(2) after having been sentencedfor a prior unrelated sex offense described in subsection (a), theperson has accumulated one (1) prior unrelated felony sex offense
conviction. However, a conviction does not count for purposes ofthis subsection, if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the sex offense in a jury trial,the jury shall reconvene to hear evidence in the enhancementhearing. If the trial was to the court, or the judgment was entered ona guilty plea, the court alone shall hear evidence in the enhancementhearing.
(e) A person is a repeat sexual offender if the jury (if the hearingis by jury) or the court (if the hearing is to the court alone) finds thatthe state has proved beyond a reasonable doubt that the person hadaccumulated one (1) prior unrelated felony sex offense conviction.
(f) The court may sentence a person found to be a repeat sexualoffender to an additional fixed term that is the advisory sentence forthe underlying offense. However, the additional sentence may notexceed ten (10) years.
As added by P.L.214-1999, SEC.4. Amended by P.L.71-2005,SEC.15; P.L.6-2006, SEC.9, P.L.140-2006, SEC.37, andP.L.173-2006, SEC.37; P.L.125-2009, SEC.8.
IC 35-50-2-15
Criminal gang enhancement
Sec. 15. (a) This section does not apply to an individual who isconvicted of a felony offense under IC 35-45-9-3.
(b) The state may seek, on a page separate from the rest of acharging instrument, to have a person who allegedly committed afelony offense sentenced to an additional fixed term of imprisonmentif the state can show beyond a reasonable doubt that the personknowingly or intentionally:
(1) was a member of a criminal gang while committing theoffense; and
(2) committed the felony offense at the direction of or inaffiliation with a criminal gang.
(c) If the person is convicted of the felony offense in a jury trial,the jury shall reconvene to hear evidence in the enhancementhearing. If the trial was to the court, or the judgment was entered ona guilty plea, the court alone shall hear evidence in the enhancementhearing.
(d) If the jury (if the hearing is by jury) or the court (if the hearingis to the court alone) finds that the state has proved beyond areasonable doubt that the person knowingly or intentionally was amember of a criminal gang while committing the felony offense andcommitted the felony offense at the direction of or in affiliation witha criminal gang as described in subsection (b), the court shall:
(1) sentence the person to an additional fixed term ofimprisonment equal to the sentence imposed for the underlyingfelony, if the person is sentenced for only one (1) felony; or
(2) sentence the person to an additional fixed term ofimprisonment equal to the longest sentence imposed for the
underlying felonies, if the person is being sentenced for morethan one (1) felony.
(e) A sentence imposed under this section shall run consecutivelyto the underlying sentence.
(f) A term of imprisonment imposed under this section may not besuspended.
(g) For purposes of subsection (c), evidence that a person was amember of a criminal gang or committed a felony at the direction ofor in affiliation with a criminal gang may include expert testimonypursuant to the Indiana Rules of Evidence that may be admitted toprove that particular conduct, status, and customs are indicative ofcriminal gang activity. The expert testimony may include thefollowing:
(1) Characteristics of persons who are members of criminalgangs.
(2) Descriptions of rivalries between criminal gangs.
(3) Common practices and operations of criminal gangs.
(4) Behavior of criminal gangs.
(5) Terminology used by members of criminal gangs.
(6) Codes of conduct, including criminal conduct, of particularcriminal gangs.
(7) Types of crimes that are likely to be committed by aparticular criminal gang.
As added by P.L.109-2006, SEC.3.
IC 35-50-2-16
Termination of a human pregnancy; enhancement
Sec. 16. (a) The state may seek, on a page separate from the restof the charging instrument, to have a person who allegedlycommitted or attempted to commit murder under IC 35-42-1-1(1) orIC 35-42-1-1(2) sentenced to an additional fixed term ofimprisonment if the state can show beyond a reasonable doubt thatthe person, while committing or attempting to commit murder underIC 35-42-1-1(1) or IC 35-42-1-1(2), caused the termination of ahuman pregnancy.
(b) If the person is convicted of the murder or attempted murderin a jury trial, the jury shall reconvene to hear evidence in theenhancement hearing. If the trial was to the court, or the judgmentwas entered on a guilty plea, the court alone shall hear evidence inthe enhancement hearing.
(c) If the jury (if the hearing is by jury) or the court (if the hearingis to the court alone) finds that the state has proved beyond areasonable doubt that the person, while committing or attempting tocommit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2), caused thetermination of a human pregnancy, the court shall sentence theperson to an additional fixed term of imprisonment of not less thansix (6) or more than twenty (20) years.
(d) A sentence imposed under this section runs consecutively tothe underlying sentence.
(e) For purposes of this section, prosecution of the murder or
attempted murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) and theenhancement of the penalty for that crime does not require proofthat:
(1) the person committing or attempting to commit the murderhad knowledg