IC 35-38 ARTICLE 38. PROCEEDINGS FOLLOWING
DISMISSAL, 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, after
a verdict, finding, or plea of guilty, if a new trial is not granted, the
court shall enter a judgment of conviction.
(b) When the court pronounces the sentence, the court shall advise
the person that the person is sentenced for not less than the earliest
release date and for not more than the maximum possible release
date. 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 felony
conviction, the court shall issue a statement of the court's reasons for
selecting 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 Class
D felony with the express provision that the conviction will be
converted to a conviction as a Class A misdemeanor within three (3)
years if the person fulfills certain conditions. A court may enter a
judgment of conviction as a Class D felony with the express
provision that the conviction will be converted to a conviction as a
Class A misdemeanor only if the person pleads guilty to a Class D
felony that qualifies for consideration as a Class A misdemeanor
under 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 agree
to the conditions set by the court under subsection (a).
(c) The court is not required to convert a judgment of conviction
entered as a Class D felony to a Class A misdemeanor if, after a
hearing, the court finds:
(1) the person has violated a condition set by the court under
subsection (a); or
(2) the period that the conditions set by the court under
subsection (a) are in effect expires before the person
successfully completes each condition.
However, the court may not convert a judgment of conviction entered
as a Class D felony to a Class A misdemeanor if the person commits
a new offense before the conditions set by the court under subsection
(a) expire.
(d) The court shall enter judgment of conviction as a Class A
misdemeanor if the person fulfills the conditions set by the court
under subsection (a).
(e) The entry of a judgment of conviction under this section does
not affect the application of any statute requiring the suspension of
a person's driving privileges.
(f) This section may not be construed to diminish or alter the
rights of a victim (as defined in IC 35-40-4-8) in a sentencing
proceeding under this chapter. As added by P.L.98-2003, SEC.2.
IC 35-38-1-2 "Victim representative" defined; sentencing; date; hearing for
increased penalty; imprisonment pending sentencing
Sec. 2. (a) As used in this chapter, "victim representative" means
a 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 than
eighteen (18) years of age.
(b) Upon entering a conviction, the court shall set a date for
sentencing within thirty (30) days, unless for good cause shown an
extension is granted. If a presentence report is not required, the court
may sentence the defendant at the time the judgment of conviction
is entered. However, the court may not pronounce sentence at that
time without:
(1) inquiring as to whether an adjournment is desired by the
defendant; and
(2) informing the victim, if present, of a victim's right to make
a statement concerning the crime and the sentence.
When an adjournment is requested, the defendant shall state its
purpose 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 sought
an increased penalty by alleging that the person was previously
convicted of the offense; and
(2) the person was convicted of the subsequent offense in a jury
trial;
the jury shall reconvene for the sentencing hearing. The person shall
be 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 beyond
a reasonable doubt that the person had a previous conviction for the
offense.
(d) If the felony is nonsuspendible under IC 35-50-2-2, the judge
shall order the defendant, if the defendant has previously been
released on bail or recognizance, to be imprisoned in the county or
local penal facility pending sentencing.
(e) Upon entering a conviction for a felony, the court shall
designate 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" means
any offense in which a person assumes the identity of another person,
professes to be another person, uses the identifying information of
another person, or falsely suggests that the person is acting with the
authority of another person. The term includes an offense under
IC 35-43-5.
(b) This section applies to an offender who has been convicted of
a crime of deception.
(c) During or after the sentencing of a person convicted of a crime
of deception, the court may, upon motion by the state or upon
application by a victim or a victim's representative, issue an order:
(1) describing the person whose credit history may be affected
by the offender's crime of deception, with sufficient identifying
information to assist another person in correcting the credit
history; and
(2) stating that the person described in subdivision (1) was the
victim of a crime of deception that may have affected the
person's credit history.
(d) The order described in subsection (c) may be used to correct
the 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 must
conduct a hearing to consider the facts and circumstances relevant to
sentencing. The person is entitled to subpoena and call witnesses and
to present information in his own behalf. The court shall make a
record 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 mitigating
circumstances, a statement of the court's reasons for selecting
the sentence that it imposes. As added by P.L.311-1983, SEC.3.
IC 35-38-1-4 Presence of defendant when sentence pronounced; pronouncement
of 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 present
when sentence is to be pronounced, the court may issue a warrant for
his arrest.
(b) Sentence may be pronounced against a defendant corporation
in the absence of counsel, if counsel fails to appear on the date of
sentencing 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's
statement; inclusion of cost of incarceration in sentencing order
Sec. 5. (a) When the defendant appears for sentencing, the court
shall inform the defendant of the verdict of the jury or the finding of
the court. The court shall afford counsel for the defendant an
opportunity to speak on behalf of the defendant. The defendant may
also make a statement personally in the defendant's own behalf and,
before pronouncing sentence, the court shall ask the defendant
whether the defendant wishes to make such a statement. Sentence
shall then be pronounced, unless a sufficient cause is alleged or
appears to the court for delay in sentencing.
(b) This subsection expires June 30, 2012. A court that sentences
a person to a term of imprisonment shall include the total costs of
incarceration in the sentencing order. The court may not consider
Class I credit under IC 35-50-6-3 in the calculation of the total costs
of 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 guilty
of offense and included offense
Sec. 6. Whenever:
(1) a defendant is charged with an offense and an included
offense in separate counts; and
(2) the defendant is found guilty of both counts;
judgment and sentence may not be entered against the defendant for
the 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 of
an offense was:
(A) significant; and
(B) greater than the elements necessary to prove the
commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of
age or at least sixty-five (65) years of age at the time the person
committed the offense.
(4) The person:
(A) committed a crime of violence (IC 35-50-1-2); and
(B) knowingly committed the offense in the presence or
within hearing of an individual who:
(i) was less than eighteen (18) years of age at the time the
person committed the offense; and
(ii) is not the victim of the offense.
(5) The person violated a protective order issued against the
person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or
IC 34-4-5.1 before their repeal), a workplace violence
restraining order issued against the person under IC 34-26-6, or
a no contact order issued against the person.
(6) The person has recently violated the conditions of any
probation, parole, pardon, community corrections placement, or
pretrial release granted to the person.
(7) The victim of the offense was:
(A) a person with a disability (as defined in IC 27-7-6-12),
and the defendant knew or should have known that the
victim was a person with a disability; or
(B) mentally or physically infirm.
(8) The person was in a position having care, custody, or
control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the
result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or
a witness if the victim or witness told anyone about the offense.
(11) The person:
(A) committed trafficking with an inmate under
IC 35-44-3-9; and
(B) is an employee of the penal facility.
(b) The court may consider the following factors as mitigating
circumstances or as favoring suspending the sentence and imposing
probation:
(1) The crime neither caused nor threatened serious harm to
persons or property, or the person did not contemplate that it
would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify
the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal
activity, or the person has led a law-abiding life for a substantial
period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or
short term imprisonment.
(8) The character and attitudes of the person indicate that the
person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim
of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship
to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of
force against a person who had repeatedly inflicted physical or
sexual abuse upon the convicted person and evidence shows
that the convicted person suffered from the effects of battery as
a result of the past course of conduct of the individual who is
the victim of the crime for which the person was convicted.
(c) The criteria listed in subsections (a) and (b) do not limit the
matters 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 circumstances
or 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 personality
disorder that makes the individual likely to repeatedly commit a sex
offense (as defined in IC 11-8-8-5.2). The term includes a person
convicted in another jurisdiction who is identified as a sexually
violent predator under IC 11-8-8-20. The term does not include a
person no longer considered a sexually violent predator under
subsection (g).
(b) A person who:
(1) being at least eighteen (18) years of age, commits an offense
described 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 in
clauses (A) through (I); or
(K) a crime under the laws of another jurisdiction, including
a military court, that is substantially equivalent to any of the
offenses listed in clauses (A) through (J);
(2) commits a sex offense (as defined in IC 11-8-8-5.2) while
having a previous unrelated conviction for a sex offense for
which the person is required to register as a sex or violent
offender under IC 11-8-8;
(3) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if, after considering expert testimony, a court finds by
clear and convincing evidence that the person is likely to
commit an additional sex offense; or
(4) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if the person was required to register as a sex or violent
offender 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 if
an offense committed by the person satisfies the conditions set forth
in subdivision (1) or (2) and the person was released from
incarceration, secure detention, or probation for the offense after
June 30, 1994.
(c) This section applies whenever a court sentences a person or a
juvenile court issues a dispositional decree for a sex offense (as
defined in IC 11-8-8-5.2) for which the person is required to register
with the local law enforcement authority under IC 11-8-8.
(d) At the sentencing hearing, the court shall indicate on the
record whether the person has been convicted of an offense that
makes 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 a
hearing to determine whether the person (including a child
adjudicated to be a delinquent child) is a sexually violent predator
under subsection (a). If the court grants the motion, the court shall
appoint two (2) psychologists or psychiatrists who have expertise in
criminal behavioral disorders to evaluate the person and testify at the
hearing. After conducting the hearing and considering the testimony
of the two (2) psychologists or psychiatrists, the court shall
determine whether the person is a sexually violent predator under
subsection (a). A hearing conducted under this subsection may be
combined 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 law
enforcement 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) or
more unrelated convictions for an offense described in IC 11-8-8-4.5
for which the person is required to register under IC 11-8-8. A person
who is a sexually violent predator may petition the court to consider
whether the person should no longer be considered a sexually violent
predator. The person may file a petition under this subsection not
earlier than ten (10) years after:
(1) the sentencing court or juvenile court makes its
determination under subsection (e); or
(2) the person is released from incarceration or secure
detention.
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 this
subsection or conduct a hearing to determine if the person should no
longer be considered a sexually violent predator. If the court
conducts a hearing, the court shall appoint two (2) psychologists or
psychiatrists who have expertise in criminal behavioral disorders to
evaluate the person and testify at the hearing. After conducting the
hearing and considering the testimony of the two (2) psychologists
or psychiatrists, the court shall determine whether the person should
no longer be considered a sexually violent predator under subsection
(a). If a court finds that the person should no longer be considered a
sexually violent predator, the court shall send notice to the
department of correction that the person is no longer considered a
sexually violent predator. Notwithstanding any other law, a condition
imposed on a person due to the person's status as a sexually violent
predator, including lifetime parole or GPS monitoring, does not
apply to a person no longer considered a sexually violent predator.
(h) A person is not a sexually violent predator by operation of law
under subsection (b)(1) if all of the following conditions are met:
(1) The victim was not less than twelve (12) years of age at the
time the offense was committed.
(2) The person is not more than four (4) years older than the
victim.
(3) The relationship between the person and the victim was a
dating relationship or an ongoing personal relationship. The
term "ongoing personal relationship" does not include a family
relationship.
(4) The offense committed by the person was not any of the
following:
(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 of
deadly 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 in
IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with
the drug or controlled substance without the victim's
knowledge.
(5) The person has not committed another sex offense (as
defined in IC 11-8-8-5.2) (including a delinquent act that would
be a sex offense if committed by an adult) against any other
person.
(6) The person did not have a position of authority or
substantial influence over the victim.
(7) The court finds that the person should not be considered a
sexually 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 determine
whether a person has committed a crime of domestic violence (as
defined 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 of
domestic violence, a court shall advise the defendant of the
consequences of this finding.
(d) A judge shall record a determination that a defendant has
committed a crime of domestic violence on a form prepared by the
division 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 defendant
convicted of a felony may not be sentenced before a written
presentence report is prepared by a probation officer and considered
by the sentencing court. Delay of sentence until a presentence report
is prepared does not constitute an indefinite postponement or
suspension of sentence.
(b) A victim present at sentencing in a felony or misdemeanor
case shall be advised by the court of a victim's right to make a
statement concerning the crime and the sentence.
(c) A court may sentence a person convicted of a Class D felony
without considering a written presentence report prepared by a
probation officer. However, if a defendant is committed to the
department of correction or a community corrections program under
IC 35-38-2.6, the probation officer shall prepare a report that meets
the requirements of section 9 of this chapter to be sent with the
offender to the department in lieu of the presentence investigation
report 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 impact
statement; contents
Sec. 8.5. (a) A probation officer who is conducting a presentence
investigation shall send written notification of the following to each
victim or each victim representative designated by the court under
section 2(e) of this chapter:
(1) The date, time, and place of the sentencing hearing set by
the court.
(2) The right of the victim or victim representative to make an
oral or written statement to the court at the sentencing hearing.
(3) The right of the victim or victim representative to submit or
refuse to submit to the probation officer a written or oral
statement of the impact of the crime upon the victim for
inclusion by the probation officer in a victim impact statement.
(b) The notification required by subsection (a) must be sent at
least seven (7) days before the date of the sentencing hearing to the
last known address of the victim or the victim representative.
(c) The probation officer shall prepare a victim impact statement
for inclusion in the convicted person's presentence report. The victim
impact statement consists of information about each victim and the
consequences suffered by a victim or a victim's family as a result of
the crime.
(d) Unless the probation officer certifies to the court under section
9 of this chapter that a victim or victim representative could not be
contacted or elected not to submit a statement to the probation officer
concerning the crime, the victim impact statement required under this
section must include the following information about each victim:
(1) A summary of the financial, emotional, and physical effects
of the crime on the victim and the victim's family.
(2) Personal information concerning the victim, excluding
telephone numbers, place of employment, and residential
address.
(3) Any written statements submitted by a victim or victim
representative to the probation officer.
(4) If the victim desires restitution, the basis and amount of a
request for victim restitution.
(e) A victim or victim representative is not required to submit a
statement or to cooperate in the preparation of the victim impact
statement 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; presentence
investigation matters; certification by probation officer when no
written 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 of
information 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, economic
status, education, and personal habits; and
(3) the impact of the crime upon the victim.
(c) The presentence investigation may include any matter that the
probation officer conducting the investigation believes is relevant to
the question of sentence, and must include:
(1) any matters the court directs to be included;
(2) any written statements submitted to the prosecuting attorney
by a victim under IC 35-35-3;
(3) any written statements submitted to the probation officer by
a victim; and
(4) preparation of the victim impact statement required under
section 8.5 of this chapter.
(d) If there are no written statements submitted to the probation
officer, 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 accept
the written statements of the victim or to reduce his oral
statements to writing, concerning the sentence, including the
acceptance of any recommendation.
(e) A presentence investigation report prepared by a probation
officer must include the information and comply with any other
requirements 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 human
immunodeficiency virus (HIV); sex crimes and controlled
substances
Sec. 9.5. A probation officer shall obtain confidential information
from the state department of health under IC 16-41-8-1 to determine
whether a convicted person was a carrier of the human
immunodeficiency virus (HIV) when the crime was committed if the
person is:
(1) convicted of an offense relating to a criminal sexual act and
the offense created an epidemiologically demonstrated risk of
transmission of the human immunodeficiency virus (HIV); or
(2) convicted of an offense relating to controlled substances and
the 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 other
paraphernalia 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 a
designated facility as part of the presentence investigation; and
(2) remain in the facility for examination for not more than
ninety (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 controlled
substances; confirmatory test; presentence investigation; marital
privilege; mental health service provider's civil and criminal
immunity
Sec. 10.5. (a) The court:
(1) shall order that a person undergo a screening test for the
human immunodeficiency virus (HIV) if the person is:
(A) convicted of an offense relating to a criminal sexual act
and the offense created an epidemiologically demonstrated
risk of transmission of the human immunodeficiency virus
(HIV); or
(B) convicted of an offense relating to controlled substances
and 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) or
other paraphernalia that creates an epidemiologically
demonstrated risk of transmission of HIV by involving
percutaneous contact; and
(2) may order that a person undergo a screening test for a
dangerous disease (as defined in IC 16-41-8-5) in accordance
with IC 16-41-8-5.
(b) If the screening test required by this section indicates the
presence of antibodies to HIV, the court shall order the person to
undergo a confirmatory test.
(c) If the confirmatory test confirms the presence of the HIV
antibodies, the court shall report the results to the state department
of health and require a probation officer to conduct a presentence
investigation to:
(1) obtain the medical record of the convicted person from the
state department of health under IC 16-41-8-1(a)(3); and
(2) determine whether the convicted person had received risk
counseling that included information on the behavior that
facilitates 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 the
report;
is immune from both civil and criminal liability due to the offering
of that report or testimony.
(e) The privileged communication between a husband and wife or
between a health care provider and the health care provider's patient
is 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 this
section is immune from civil and criminal liability under Indiana
statutes 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 human
immunodeficiency virus (HIV); counseling
Sec. 10.6. (a) The state department of health shall notify victims
of an offense relating to a criminal sexual act or an offense relating
to controlled substances if tests conducted under section 10.5 of this
chapter or IC 16-41-8-5 confirm that the person tested had antibodies
for the human immunodeficiency virus (HIV).
(b) The state department of health shall provide counseling to
persons 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 may
file with the court a written memorandum setting forth any
information he considers pertinent to the question of sentence. The
convicted person may attach written statements by others in support
of 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 and
conclusions; copy of presentence report; opportunity for victim to
make 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 the
presentence investigation; or
(2) provide the defendant or his counsel and the prosecuting
attorney with a copy of the presentence report.
The court also shall offer the victim, if present, an opportunity to
make 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 presentence
investigation or a copy of the presentence report sufficiently in
advance of sentencing so that the defendant will be afforded a fair
opportunity 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 kept
confidential.
(b) The materials specified in subsection (a) may not be made
available 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 is
placed under IC 35-38-2.6; and
(5) the Indiana criminal justice institute established under
IC 5-2-6;
except where specifically required or permitted by statute or upon
specific 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 department
of correction
Sec. 14. (a) If a convicted person is sentenced to a term of
imprisonment, 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 made
incident 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 means
approved 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, the
mistake does not render the sentence void. The sentence shall be
corrected after written notice is given to the convicted person. The
convicted person and his counsel must be present when the corrected
sentence is ordered. A motion to correct sentence must be in writing
and supported by a memorandum of law specifically pointing out the
defect 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 a
previously imposed sentence; and
(2) the convicted person is incarcerated or is to be incarcerated
by the department of correction;
the court shall immediately send certified copies of the corrected or
modified 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 correction
concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must
incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed
since the convicted person began serving the sentence and after a
hearing at which the convicted person is present, the court may
reduce or suspend the sentence, subject to the approval of the
prosecuting attorney. However, if in a sentencing hearing for a
convicted person conducted after June 30, 2001, the court could have
placed the convicted person in a community corrections program as
an alternative to commitment to the department of correction, the
court may modify the convicted person's sentence under this section
without the approval of the prosecuting attorney to place the
convicted person in a community corrections program under
IC 35-38-2.6.
(c) The court must give notice of the order to reduce or suspend
the sentence under this section to the victim (as defined in
IC 35-35-3-1) of the crime for which the convicted person is serving
the sentence.
(d) The court may suspend a sentence for a felony under this
section only if suspension is permitted under IC 35-50-2-2.
(e) The court may deny a request to suspend or reduce a sentence
under this section without making written findings and conclusions.
(f) Notwithstanding subsections (a) and (b), the court is not
required to conduct a hearing before reducing or suspending a
sentence if:
(1) the prosecuting attorney has filed with the court an
agreement of the reduction or suspension of the sentence; and
(2) the convicted person has filed with the court a waiver of the
right to be present when the order to reduce or suspend the
sentence 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 the
court imposes a fine, it shall conduct a hearing to determine whether
the convicted person is indigent. If the person is not indigent, the
court shall order:
(1) that the person pay the entire amount at the time sentence is
pronounced;
(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 the
county 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 this
subdivision, the person's total confinement for the crime that
resulted in the conviction must not exceed the maximum term
of imprisonment prescribed for the crime under IC 35-50-2 or
IC 35-50-3.
(b) A court may impose a fine and suspend payment of all or part
of the fine until the convicted person has completed all or part of the
sentence. If the court suspends payment of the fine, the court shall
conduct a hearing at the time the fine is due to determine whether the
convicted 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), the
court 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 on
a debt for the unpaid amount;
(2) the court may direct that the person, if the person is not
indigent, be committed to the county jail and credited toward
payment at the rate of twenty dollars ($20) for each twenty-four
(24) hour period the person is confined, until the amount paid
plus the amount credited equals the entire amount due; or
(3) the court may institute contempt proceedings or order the
convicted person's wages, salary, and other income garnished in
accordance with IC 24-4.5-5-105 to enforce the court's order for
payment 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 department
of correction under IC 35-38-3-5 may, after notice to the prosecuting
attorney of the judicial circuit in which the defendant's case
originated, hold a hearing for the purpose of determining whether the
offender named in the petition may be placed in home detention
under IC 35-38-2.5 instead of commitment to the department of
correction for the remainder of the offender's minimum sentence.
(b) Notwithstanding IC 35-35-3-3(e), and after a hearing held
under this section, a sentencing court may order the offender named
in the petition filed under IC 35-38-3-5 to be placed in home
detention under IC 35-38-2.5 instead of commitment to the
department of correction for the remainder of the offender's
minimum sentence. As added by P.L.98-1988, SEC.4.
IC 35-38-1-22 Juveniles; service of misdemeanor sentences in juvenile detention
facilities
Sec. 22. A court that imposes a sentence for conviction of a
misdemeanor upon a person who is less than eighteen (18) years of
age may enter an order requiring that the convicted person serve the
sentence 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 approval
of the judge of the juvenile court allowing the detention of the person
in 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 serious
offense for which the person is committed is a Class C or Class D
felony.
(b) Not later than forty-five (45) days after receiving a notice
under IC 11-10-11.5-2, the sentencing court may order the
department of correction to retain control over a person until the
person completes the person's fixed term of imprisonment, less the
credit time the person has earned with respect to the term, if the court
makes specific findings that support a determination:
(1) that placement of the person in a community transition
program:
(A) places the person in danger of serious bodily injury or
death; 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 of
correction may not assign a person to a community transition
program.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 serious
offense for which the person is committed is murder, a Class A
felony, or a Class B felony.
(b) A sentencing court may sentence a person or modify the
sentence of a person to assign the person to a community transition
program for any period that begins after the person's community
transition program commencement date (as defined in IC 11-8-1-5.6)
and ends when the person completes the person's fixed term of
imprisonment, less the credit time the person has earned with respect
to the term, if the court makes specific findings of fact that support
a determination that it is in the best interests of justice to make the
assignment. The order may include any other condition that the court
could impose if the court had placed the person on probation under
IC 35-38-2 or in a community corrections program under
IC 35-38-2.6.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 a
sentence
Sec. 27. (a) If a court imposes a sentence that does not involve a
commitment to the department of correction, the court shall require
a person:
(1) convicted of an offense described in IC 10-13-6-10; and
(2) who has not previously provided a DNA sample in
accordance 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 time
of sentencing, the court shall order the person to provide a DNA
sample immediately after sentencing.
(c) If a person described in subsection (a) is not confined at the
time of sentencing, the agency supervising the person after
sentencing shall establish the date, time, and location for the person
to provide a DNA sample. However, the supervising agency must
require 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 not
permit a person required to provide a DNA sample to challenge the
requirement that the person provide a DNA sample at a later date.
(d) A person's failure to provide a DNA sample is grounds for
revocation of the person's probation, community corrections
placement, 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; transmission
of fingerprints to prosecuting attorney and department of
correction; immunity
Sec. 28. (a) Except as provided in subsection (c), immediately
after sentencing a defendant for an offense, the court shall order the
defendant to be fingerprinted by an individual qualified to take
fingerprints. The fingerprints may be recorded in any reliable
manner, including by the use of a digital fingerprinting device.
(b) The court shall order a law enforcement officer to provide the
fingerprints to the prosecuting attorney and the state police
department, in hard copy or in an electronic format approved by the
security and privacy council established by IC 10-13-3-34.
(c) The court is not required to order the defendant to be
fingerprinted if the defendant was previously arrested and processed
at the county jail.
(d) A clerk, court, law enforcement officer, or prosecuting
attorney is immune from civil liability for an error or omission in the
transmission of fingerprints, case history data, or sentencing data,
unless the error or omission constitutes willful or wanton misconduct
or 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 the
department of correction
Sec. 29. (a) This section applies only to a sexually violent
predator, including a person who is a sexually violent predator by
operation 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 in
subsection (a) that does not involve a commitment to the department
of correction, the court shall order the parole board to place the
person on lifetime parole and supervise the person in the same
manner that the parole board supervises a sexually violent predator
who has been released from imprisonment and placed on lifetime
parole under IC 35-50-6-1(e).
(c) If a person described in subsection (b) is also required to be
supervised by a court, a probation department, a community
corrections program, a community transition program, or another
similar program upon the person's release from imprisonment, the
parole 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 of
the parole board's supervisory responsibility during the period
in which the other supervising agency is required to supervise
the 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 a
person's executed sentence, the person shall refrain from any direct
or indirect contact with an individual. As added by P.L.104-2008, SEC.21.
IC 35-38 ARTICLE 38. PROCEEDINGS FOLLOWING
DISMISSAL, 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, after
a verdict, finding, or plea of guilty, if a new trial is not granted, the
court shall enter a judgment of conviction.
(b) When the court pronounces the sentence, the court shall advise
the person that the person is sentenced for not less than the earliest
release date and for not more than the maximum possible release
date. 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 felony
conviction, the court shall issue a statement of the court's reasons for
selecting 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 Class
D felony with the express provision that the conviction will be
converted to a conviction as a Class A misdemeanor within three (3)
years if the person fulfills certain conditions. A court may enter a
judgment of conviction as a Class D felony with the express
provision that the conviction will be converted to a conviction as a
Class A misdemeanor only if the person pleads guilty to a Class D
felony that qualifies for consideration as a Class A misdemeanor
under 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 agree
to the conditions set by the court under subsection (a).
(c) The court is not required to convert a judgment of conviction
entered as a Class D felony to a Class A misdemeanor if, after a
hearing, the court finds:
(1) the person has violated a condition set by the court under
subsection (a); or
(2) the period that the conditions set by the court under
subsection (a) are in effect expires before the person
successfully completes each condition.
However, the court may not convert a judgment of conviction entered
as a Class D felony to a Class A misdemeanor if the person commits
a new offense before the conditions set by the court under subsection
(a) expire.
(d) The court shall enter judgment of conviction as a Class A
misdemeanor if the person fulfills the conditions set by the court
under subsection (a).
(e) The entry of a judgment of conviction under this section does
not affect the application of any statute requiring the suspension of
a person's driving privileges.
(f) This section may not be construed to diminish or alter the
rights of a victim (as defined in IC 35-40-4-8) in a sentencing
proceeding under this chapter. As added by P.L.98-2003, SEC.2.
IC 35-38-1-2 "Victim representative" defined; sentencing; date; hearing for
increased penalty; imprisonment pending sentencing
Sec. 2. (a) As used in this chapter, "victim representative" means
a 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 than
eighteen (18) years of age.
(b) Upon entering a conviction, the court shall set a date for
sentencing within thirty (30) days, unless for good cause shown an
extension is granted. If a presentence report is not required, the court
may sentence the defendant at the time the judgment of conviction
is entered. However, the court may not pronounce sentence at that
time without:
(1) inquiring as to whether an adjournment is desired by the
defendant; and
(2) informing the victim, if present, of a victim's right to make
a statement concerning the crime and the sentence.
When an adjournment is requested, the defendant shall state its
purpose 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 sought
an increased penalty by alleging that the person was previously
convicted of the offense; and
(2) the person was convicted of the subsequent offense in a jury
trial;
the jury shall reconvene for the sentencing hearing. The person shall
be 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 beyond
a reasonable doubt that the person had a previous conviction for the
offense.
(d) If the felony is nonsuspendible under IC 35-50-2-2, the judge
shall order the defendant, if the defendant has previously been
released on bail or recognizance, to be imprisoned in the county or
local penal facility pending sentencing.
(e) Upon entering a conviction for a felony, the court shall
designate 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" means
any offense in which a person assumes the identity of another person,
professes to be another person, uses the identifying information of
another person, or falsely suggests that the person is acting with the
authority of another person. The term includes an offense under
IC 35-43-5.
(b) This section applies to an offender who has been convicted of
a crime of deception.
(c) During or after the sentencing of a person convicted of a crime
of deception, the court may, upon motion by the state or upon
application by a victim or a victim's representative, issue an order:
(1) describing the person whose credit history may be affected
by the offender's crime of deception, with sufficient identifying
information to assist another person in correcting the credit
history; and
(2) stating that the person described in subdivision (1) was the
victim of a crime of deception that may have affected the
person's credit history.
(d) The order described in subsection (c) may be used to correct
the 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 must
conduct a hearing to consider the facts and circumstances relevant to
sentencing. The person is entitled to subpoena and call witnesses and
to present information in his own behalf. The court shall make a
record 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 mitigating
circumstances, a statement of the court's reasons for selecting
the sentence that it imposes. As added by P.L.311-1983, SEC.3.
IC 35-38-1-4 Presence of defendant when sentence pronounced; pronouncement
of 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 present
when sentence is to be pronounced, the court may issue a warrant for
his arrest.
(b) Sentence may be pronounced against a defendant corporation
in the absence of counsel, if counsel fails to appear on the date of
sentencing 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's
statement; inclusion of cost of incarceration in sentencing order
Sec. 5. (a) When the defendant appears for sentencing, the court
shall inform the defendant of the verdict of the jury or the finding of
the court. The court shall afford counsel for the defendant an
opportunity to speak on behalf of the defendant. The defendant may
also make a statement personally in the defendant's own behalf and,
before pronouncing sentence, the court shall ask the defendant
whether the defendant wishes to make such a statement. Sentence
shall then be pronounced, unless a sufficient cause is alleged or
appears to the court for delay in sentencing.
(b) This subsection expires June 30, 2012. A court that sentences
a person to a term of imprisonment shall include the total costs of
incarceration in the sentencing order. The court may not consider
Class I credit under IC 35-50-6-3 in the calculation of the total costs
of 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 guilty
of offense and included offense
Sec. 6. Whenever:
(1) a defendant is charged with an offense and an included
offense in separate counts; and
(2) the defendant is found guilty of both counts;
judgment and sentence may not be entered against the defendant for
the 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 of
an offense was:
(A) significant; and
(B) greater than the elements necessary to prove the
commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of
age or at least sixty-five (65) years of age at the time the person
committed the offense.
(4) The person:
(A) committed a crime of violence (IC 35-50-1-2); and
(B) knowingly committed the offense in the presence or
within hearing of an individual who:
(i) was less than eighteen (18) years of age at the time the
person committed the offense; and
(ii) is not the victim of the offense.
(5) The person violated a protective order issued against the
person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or
IC 34-4-5.1 before their repeal), a workplace violence
restraining order issued against the person under IC 34-26-6, or
a no contact order issued against the person.
(6) The person has recently violated the conditions of any
probation, parole, pardon, community corrections placement, or
pretrial release granted to the person.
(7) The victim of the offense was:
(A) a person with a disability (as defined in IC 27-7-6-12),
and the defendant knew or should have known that the
victim was a person with a disability; or
(B) mentally or physically infirm.
(8) The person was in a position having care, custody, or
control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the
result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or
a witness if the victim or witness told anyone about the offense.
(11) The person:
(A) committed trafficking with an inmate under
IC 35-44-3-9; and
(B) is an employee of the penal facility.
(b) The court may consider the following factors as mitigating
circumstances or as favoring suspending the sentence and imposing
probation:
(1) The crime neither caused nor threatened serious harm to
persons or property, or the person did not contemplate that it
would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify
the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal
activity, or the person has led a law-abiding life for a substantial
period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or
short term imprisonment.
(8) The character and attitudes of the person indicate that the
person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim
of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship
to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of
force against a person who had repeatedly inflicted physical or
sexual abuse upon the convicted person and evidence shows
that the convicted person suffered from the effects of battery as
a result of the past course of conduct of the individual who is
the victim of the crime for which the person was convicted.
(c) The criteria listed in subsections (a) and (b) do not limit the
matters 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 circumstances
or 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 personality
disorder that makes the individual likely to repeatedly commit a sex
offense (as defined in IC 11-8-8-5.2). The term includes a person
convicted in another jurisdiction who is identified as a sexually
violent predator under IC 11-8-8-20. The term does not include a
person no longer considered a sexually violent predator under
subsection (g).
(b) A person who:
(1) being at least eighteen (18) years of age, commits an offense
described 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 in
clauses (A) through (I); or
(K) a crime under the laws of another jurisdiction, including
a military court, that is substantially equivalent to any of the
offenses listed in clauses (A) through (J);
(2) commits a sex offense (as defined in IC 11-8-8-5.2) while
having a previous unrelated conviction for a sex offense for
which the person is required to register as a sex or violent
offender under IC 11-8-8;
(3) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if, after considering expert testimony, a court finds by
clear and convincing evidence that the person is likely to
commit an additional sex offense; or
(4) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if the person was required to register as a sex or violent
offender 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 if
an offense committed by the person satisfies the conditions set forth
in subdivision (1) or (2) and the person was released from
incarceration, secure detention, or probation for the offense after
June 30, 1994.
(c) This section applies whenever a court sentences a person or a
juvenile court issues a dispositional decree for a sex offense (as
defined in IC 11-8-8-5.2) for which the person is required to register
with the local law enforcement authority under IC 11-8-8.
(d) At the sentencing hearing, the court shall indicate on the
record whether the person has been convicted of an offense that
makes 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 a
hearing to determine whether the person (including a child
adjudicated to be a delinquent child) is a sexually violent predator
under subsection (a). If the court grants the motion, the court shall
appoint two (2) psychologists or psychiatrists who have expertise in
criminal behavioral disorders to evaluate the person and testify at the
hearing. After conducting the hearing and considering the testimony
of the two (2) psychologists or psychiatrists, the court shall
determine whether the person is a sexually violent predator under
subsection (a). A hearing conducted under this subsection may be
combined 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 law
enforcement 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) or
more unrelated convictions for an offense described in IC 11-8-8-4.5
for which the person is required to register under IC 11-8-8. A person
who is a sexually violent predator may petition the court to consider
whether the person should no longer be considered a sexually violent
predator. The person may file a petition under this subsection not
earlier than ten (10) years after:
(1) the sentencing court or juvenile court makes its
determination under subsection (e); or
(2) the person is released from incarceration or secure
detention.
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 this
subsection or conduct a hearing to determine if the person should no
longer be considered a sexually violent predator. If the court
conducts a hearing, the court shall appoint two (2) psychologists or
psychiatrists who have expertise in criminal behavioral disorders to
evaluate the person and testify at the hearing. After conducting the
hearing and considering the testimony of the two (2) psychologists
or psychiatrists, the court shall determine whether the person should
no longer be considered a sexually violent predator under subsection
(a). If a court finds that the person should no longer be considered a
sexually violent predator, the court shall send notice to the
department of correction that the person is no longer considered a
sexually violent predator. Notwithstanding any other law, a condition
imposed on a person due to the person's status as a sexually violent
predator, including lifetime parole or GPS monitoring, does not
apply to a person no longer considered a sexually violent predator.
(h) A person is not a sexually violent predator by operation of law
under subsection (b)(1) if all of the following conditions are met:
(1) The victim was not less than twelve (12) years of age at the
time the offense was committed.
(2) The person is not more than four (4) years older than the
victim.
(3) The relationship between the person and the victim was a
dating relationship or an ongoing personal relationship. The
term "ongoing personal relationship" does not include a family
relationship.
(4) The offense committed by the person was not any of the
following:
(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 of
deadly 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 in
IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with
the drug or controlled substance without the victim's
knowledge.
(5) The person has not committed another sex offense (as
defined in IC 11-8-8-5.2) (including a delinquent act that would
be a sex offense if committed by an adult) against any other
person.
(6) The person did not have a position of authority or
substantial influence over the victim.
(7) The court finds that the person should not be considered a
sexually 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 determine
whether a person has committed a crime of domestic violence (as
defined 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 of
domestic violence, a court shall advise the defendant of the
consequences of this finding.
(d) A judge shall record a determination that a defendant has
committed a crime of domestic violence on a form prepared by the
division 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 defendant
convicted of a felony may not be sentenced before a written
presentence report is prepared by a probation officer and considered
by the sentencing court. Delay of sentence until a presentence report
is prepared does not constitute an indefinite postponement or
suspension of sentence.
(b) A victim present at sentencing in a felony or misdemeanor
case shall be advised by the court of a victim's right to make a
statement concerning the crime and the sentence.
(c) A court may sentence a person convicted of a Class D felony
without considering a written presentence report prepared by a
probation officer. However, if a defendant is committed to the
department of correction or a community corrections program under
IC 35-38-2.6, the probation officer shall prepare a report that meets
the requirements of section 9 of this chapter to be sent with the
offender to the department in lieu of the presentence investigation
report 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 impact
statement; contents
Sec. 8.5. (a) A probation officer who is conducting a presentence
investigation shall send written notification of the following to each
victim or each victim representative designated by the court under
section 2(e) of this chapter:
(1) The date, time, and place of the sentencing hearing set by
the court.
(2) The right of the victim or victim representative to make an
oral or written statement to the court at the sentencing hearing.
(3) The right of the victim or victim representative to submit or
refuse to submit to the probation officer a written or oral
statement of the impact of the crime upon the victim for
inclusion by the probation officer in a victim impact statement.
(b) The notification required by subsection (a) must be sent at
least seven (7) days before the date of the sentencing hearing to the
last known address of the victim or the victim representative.
(c) The probation officer shall prepare a victim impact statement
for inclusion in the convicted person's presentence report. The victim
impact statement consists of information about each victim and the
consequences suffered by a victim or a victim's family as a result of
the crime.
(d) Unless the probation officer certifies to the court under section
9 of this chapter that a victim or victim representative could not be
contacted or elected not to submit a statement to the probation officer
concerning the crime, the victim impact statement required under this
section must include the following information about each victim:
(1) A summary of the financial, emotional, and physical effects
of the crime on the victim and the victim's family.
(2) Personal information concerning the victim, excluding
telephone numbers, place of employment, and residential
address.
(3) Any written statements submitted by a victim or victim
representative to the probation officer.
(4) If the victim desires restitution, the basis and amount of a
request for victim restitution.
(e) A victim or victim representative is not required to submit a
statement or to cooperate in the preparation of the victim impact
statement 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; presentence
investigation matters; certification by probation officer when no
written 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 of
information 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, economic
status, education, and personal habits; and
(3) the impact of the crime upon the victim.
(c) The presentence investigation may include any matter that the
probation officer conducting the investigation believes is relevant to
the question of sentence, and must include:
(1) any matters the court directs to be included;
(2) any written statements submitted to the prosecuting attorney
by a victim under IC 35-35-3;
(3) any written statements submitted to the probation officer by
a victim; and
(4) preparation of the victim impact statement required under
section 8.5 of this chapter.
(d) If there are no written statements submitted to the probation
officer, 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 accept
the written statements of the victim or to reduce his oral
statements to writing, concerning the sentence, including the
acceptance of any recommendation.
(e) A presentence investigation report prepared by a probation
officer must include the information and comply with any other
requirements 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 human
immunodeficiency virus (HIV); sex crimes and controlled
substances
Sec. 9.5. A probation officer shall obtain confidential information
from the state department of health under IC 16-41-8-1 to determine
whether a convicted person was a carrier of the human
immunodeficiency virus (HIV) when the crime was committed if the
person is:
(1) convicted of an offense relating to a criminal sexual act and
the offense created an epidemiologically demonstrated risk of
transmission of the human immunodeficiency virus (HIV); or
(2) convicted of an offense relating to controlled substances and
the 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 other
paraphernalia 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 a
designated facility as part of the presentence investigation; and
(2) remain in the facility for examination for not more than
ninety (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 controlled
substances; confirmatory test; presentence investigation; marital
privilege; mental health service provider's civil and criminal
immunity
Sec. 10.5. (a) The court:
(1) shall order that a person undergo a screening test for the
human immunodeficiency virus (HIV) if the person is:
(A) convicted of an offense relating to a criminal sexual act
and the offense created an epidemiologically demonstrated
risk of transmission of the human immunodeficiency virus
(HIV); or
(B) convicted of an offense relating to controlled substances
and 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) or
other paraphernalia that creates an epidemiologically
demonstrated risk of transmission of HIV by involving
percutaneous contact; and
(2) may order that a person undergo a screening test for a
dangerous disease (as defined in IC 16-41-8-5) in accordance
with IC 16-41-8-5.
(b) If the screening test required by this section indicates the
presence of antibodies to HIV, the court shall order the person to
undergo a confirmatory test.
(c) If the confirmatory test confirms the presence of the HIV
antibodies, the court shall report the results to the state department
of health and require a probation officer to conduct a presentence
investigation to:
(1) obtain the medical record of the convicted person from the
state department of health under IC 16-41-8-1(a)(3); and
(2) determine whether the convicted person had received risk
counseling that included information on the behavior that
facilitates 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 the
report;
is immune from both civil and criminal liability due to the offering
of that report or testimony.
(e) The privileged communication between a husband and wife or
between a health care provider and the health care provider's patient
is 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 this
section is immune from civil and criminal liability under Indiana
statutes 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 human
immunodeficiency virus (HIV); counseling
Sec. 10.6. (a) The state department of health shall notify victims
of an offense relating to a criminal sexual act or an offense relating
to controlled substances if tests conducted under section 10.5 of this
chapter or IC 16-41-8-5 confirm that the person tested had antibodies
for the human immunodeficiency virus (HIV).
(b) The state department of health shall provide counseling to
persons 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 may
file with the court a written memorandum setting forth any
information he considers pertinent to the question of sentence. The
convicted person may attach written statements by others in support
of 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 and
conclusions; copy of presentence report; opportunity for victim to
make 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 the
presentence investigation; or
(2) provide the defendant or his counsel and the prosecuting
attorney with a copy of the presentence report.
The court also shall offer the victim, if present, an opportunity to
make 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 presentence
investigation or a copy of the presentence report sufficiently in
advance of sentencing so that the defendant will be afforded a fair
opportunity 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 kept
confidential.
(b) The materials specified in subsection (a) may not be made
available 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 is
placed under IC 35-38-2.6; and
(5) the Indiana criminal justice institute established under
IC 5-2-6;
except where specifically required or permitted by statute or upon
specific 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 department
of correction
Sec. 14. (a) If a convicted person is sentenced to a term of
imprisonment, 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 made
incident 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 means
approved 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, the
mistake does not render the sentence void. The sentence shall be
corrected after written notice is given to the convicted person. The
convicted person and his counsel must be present when the corrected
sentence is ordered. A motion to correct sentence must be in writing
and supported by a memorandum of law specifically pointing out the
defect 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 a
previously imposed sentence; and
(2) the convicted person is incarcerated or is to be incarcerated
by the department of correction;
the court shall immediately send certified copies of the corrected or
modified 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 correction
concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must
incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed
since the convicted person began serving the sentence and after a
hearing at which the convicted person is present, the court may
reduce or suspend the sentence, subject to the approval of the
prosecuting attorney. However, if in a sentencing hearing for a
convicted person conducted after June 30, 2001, the court could have
placed the convicted person in a community corrections program as
an alternative to commitment to the department of correction, the
court may modify the convicted person's sentence under this section
without the approval of the prosecuting attorney to place the
convicted person in a community corrections program under
IC 35-38-2.6.
(c) The court must give notice of the order to reduce or suspend
the sentence under this section to the victim (as defined in
IC 35-35-3-1) of the crime for which the convicted person is serving
the sentence.
(d) The court may suspend a sentence for a felony under this
section only if suspension is permitted under IC 35-50-2-2.
(e) The court may deny a request to suspend or reduce a sentence
under this section without making written findings and conclusions.
(f) Notwithstanding subsections (a) and (b), the court is not
required to conduct a hearing before reducing or suspending a
sentence if:
(1) the prosecuting attorney has filed with the court an
agreement of the reduction or suspension of the sentence; and
(2) the convicted person has filed with the court a waiver of the
right to be present when the order to reduce or suspend the
sentence 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 the
court imposes a fine, it shall conduct a hearing to determine whether
the convicted person is indigent. If the person is not indigent, the
court shall order:
(1) that the person pay the entire amount at the time sentence is
pronounced;
(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 the
county 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 this
subdivision, the person's total confinement for the crime that
resulted in the conviction must not exceed the maximum term
of imprisonment prescribed for the crime under IC 35-50-2 or
IC 35-50-3.
(b) A court may impose a fine and suspend payment of all or part
of the fine until the convicted person has completed all or part of the
sentence. If the court suspends payment of the fine, the court shall
conduct a hearing at the time the fine is due to determine whether the
convicted 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), the
court 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 on
a debt for the unpaid amount;
(2) the court may direct that the person, if the person is not
indigent, be committed to the county jail and credited toward
payment at the rate of twenty dollars ($20) for each twenty-four
(24) hour period the person is confined, until the amount paid
plus the amount credited equals the entire amount due; or
(3) the court may institute contempt proceedings or order the
convicted person's wages, salary, and other income garnished in
accordance with IC 24-4.5-5-105 to enforce the court's order for
payment 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 department
of correction under IC 35-38-3-5 may, after notice to the prosecuting
attorney of the judicial circuit in which the defendant's case
originated, hold a hearing for the purpose of determining whether the
offender named in the petition may be placed in home detention
under IC 35-38-2.5 instead of commitment to the department of
correction for the remainder of the offender's minimum sentence.
(b) Notwithstanding IC 35-35-3-3(e), and after a hearing held
under this section, a sentencing court may order the offender named
in the petition filed under IC 35-38-3-5 to be placed in home
detention under IC 35-38-2.5 instead of commitment to the
department of correction for the remainder of the offender's
minimum sentence. As added by P.L.98-1988, SEC.4.
IC 35-38-1-22 Juveniles; service of misdemeanor sentences in juvenile detention
facilities
Sec. 22. A court that imposes a sentence for conviction of a
misdemeanor upon a person who is less than eighteen (18) years of
age may enter an order requiring that the convicted person serve the
sentence 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 approval
of the judge of the juvenile court allowing the detention of the person
in 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 serious
offense for which the person is committed is a Class C or Class D
felony.
(b) Not later than forty-five (45) days after receiving a notice
under IC 11-10-11.5-2, the sentencing court may order the
department of correction to retain control over a person until the
person completes the person's fixed term of imprisonment, less the
credit time the person has earned with respect to the term, if the court
makes specific findings that support a determination:
(1) that placement of the person in a community transition
program:
(A) places the person in danger of serious bodily injury or
death; 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 of
correction may not assign a person to a community transition
program.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 serious
offense for which the person is committed is murder, a Class A
felony, or a Class B felony.
(b) A sentencing court may sentence a person or modify the
sentence of a person to assign the person to a community transition
program for any period that begins after the person's community
transition program commencement date (as defined in IC 11-8-1-5.6)
and ends when the person completes the person's fixed term of
imprisonment, less the credit time the person has earned with respect
to the term, if the court makes specific findings of fact that support
a determination that it is in the best interests of justice to make the
assignment. The order may include any other condition that the court
could impose if the court had placed the person on probation under
IC 35-38-2 or in a community corrections program under
IC 35-38-2.6.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 a
sentence
Sec. 27. (a) If a court imposes a sentence that does not involve a
commitment to the department of correction, the court shall require
a person:
(1) convicted of an offense described in IC 10-13-6-10; and
(2) who has not previously provided a DNA sample in
accordance 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 time
of sentencing, the court shall order the person to provide a DNA
sample immediately after sentencing.
(c) If a person described in subsection (a) is not confined at the
time of sentencing, the agency supervising the person after
sentencing shall establish the date, time, and location for the person
to provide a DNA sample. However, the supervising agency must
require 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 not
permit a person required to provide a DNA sample to challenge the
requirement that the person provide a DNA sample at a later date.
(d) A person's failure to provide a DNA sample is grounds for
revocation of the person's probation, community corrections
placement, 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; transmission
of fingerprints to prosecuting attorney and department of
correction; immunity
Sec. 28. (a) Except as provided in subsection (c), immediately
after sentencing a defendant for an offense, the court shall order the
defendant to be fingerprinted by an individual qualified to take
fingerprints. The fingerprints may be recorded in any reliable
manner, including by the use of a digital fingerprinting device.
(b) The court shall order a law enforcement officer to provide the
fingerprints to the prosecuting attorney and the state police
department, in hard copy or in an electronic format approved by the
security and privacy council established by IC 10-13-3-34.
(c) The court is not required to order the defendant to be
fingerprinted if the defendant was previously arrested and processed
at the county jail.
(d) A clerk, court, law enforcement officer, or prosecuting
attorney is immune from civil liability for an error or omission in the
transmission of fingerprints, case history data, or sentencing data,
unless the error or omission constitutes willful or wanton misconduct
or 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 the
department of correction
Sec. 29. (a) This section applies only to a sexually violent
predator, including a person who is a sexually violent predator by
operation 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 in
subsection (a) that does not involve a commitment to the department
of correction, the court shall order the parole board to place the
person on lifetime parole and supervise the person in the same
manner that the parole board supervises a sexually violent predator
who has been released from imprisonment and placed on lifetime
parole under IC 35-50-6-1(e).
(c) If a person described in subsection (b) is also required to be
supervised by a court, a probation department, a community
corrections program, a community transition program, or another
similar program upon the person's release from imprisonment, the
parole 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 of
the parole board's supervisory responsibility during the period
in which the other supervising agency is required to supervise
the 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 a
person's executed sentence, the person shall refrain from any direct
or indirect contact with an individual. As added by P.L.104-2008, SEC.21.
IC 35-38 ARTICLE 38. PROCEEDINGS FOLLOWING
DISMISSAL, 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, after
a verdict, finding, or plea of guilty, if a new trial is not granted, the
court shall enter a judgment of conviction.
(b) When the court pronounces the sentence, the court shall advise
the person that the person is sentenced for not less than the earliest
release date and for not more than the maximum possible release
date. 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 felony
conviction, the court shall issue a statement of the court's reasons for
selecting 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 Class
D felony with the express provision that the conviction will be
converted to a conviction as a Class A misdemeanor within three (3)
years if the person fulfills certain conditions. A court may enter a
judgment of conviction as a Class D felony with the express
provision that the conviction will be converted to a conviction as a
Class A misdemeanor only if the person pleads guilty to a Class D
felony that qualifies for consideration as a Class A misdemeanor
under 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 agree
to the conditions set by the court under subsection (a).
(c) The court is not required to convert a judgment of conviction
entered as a Class D felony to a Class A misdemeanor if, after a
hearing, the court finds:
(1) the person has violated a condition set by the court under
subsection (a); or
(2) the period that the conditions set by the court under
subsection (a) are in effect expires before the person
successfully completes each condition.
However, the court may not convert a judgment of conviction entered
as a Class D felony to a Class A misdemeanor if the person commits
a new offense before the conditions set by the court under subsection
(a) expire.
(d) The court shall enter judgment of conviction as a Class A
misdemeanor if the person fulfills the conditions set by the court
under subsection (a).
(e) The entry of a judgment of conviction under this section does
not affect the application of any statute requiring the suspension of
a person's driving privileges.
(f) This section may not be construed to diminish or alter the
rights of a victim (as defined in IC 35-40-4-8) in a sentencing
proceeding under this chapter. As added by P.L.98-2003, SEC.2.
IC 35-38-1-2 "Victim representative" defined; sentencing; date; hearing for
increased penalty; imprisonment pending sentencing
Sec. 2. (a) As used in this chapter, "victim representative" means
a 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 than
eighteen (18) years of age.
(b) Upon entering a conviction, the court shall set a date for
sentencing within thirty (30) days, unless for good cause shown an
extension is granted. If a presentence report is not required, the court
may sentence the defendant at the time the judgment of conviction
is entered. However, the court may not pronounce sentence at that
time without:
(1) inquiring as to whether an adjournment is desired by the
defendant; and
(2) informing the victim, if present, of a victim's right to make
a statement concerning the crime and the sentence.
When an adjournment is requested, the defendant shall state its
purpose 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 sought
an increased penalty by alleging that the person was previously
convicted of the offense; and
(2) the person was convicted of the subsequent offense in a jury
trial;
the jury shall reconvene for the sentencing hearing. The person shall
be 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 beyond
a reasonable doubt that the person had a previous conviction for the
offense.
(d) If the felony is nonsuspendible under IC 35-50-2-2, the judge
shall order the defendant, if the defendant has previously been
released on bail or recognizance, to be imprisoned in the county or
local penal facility pending sentencing.
(e) Upon entering a conviction for a felony, the court shall
designate 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" means
any offense in which a person assumes the identity of another person,
professes to be another person, uses the identifying information of
another person, or falsely suggests that the person is acting with the
authority of another person. The term includes an offense under
IC 35-43-5.
(b) This section applies to an offender who has been convicted of
a crime of deception.
(c) During or after the sentencing of a person convicted of a crime
of deception, the court may, upon motion by the state or upon
application by a victim or a victim's representative, issue an order:
(1) describing the person whose credit history may be affected
by the offender's crime of deception, with sufficient identifying
information to assist another person in correcting the credit
history; and
(2) stating that the person described in subdivision (1) was the
victim of a crime of deception that may have affected the
person's credit history.
(d) The order described in subsection (c) may be used to correct
the 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 must
conduct a hearing to consider the facts and circumstances relevant to
sentencing. The person is entitled to subpoena and call witnesses and
to present information in his own behalf. The court shall make a
record 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 mitigating
circumstances, a statement of the court's reasons for selecting
the sentence that it imposes. As added by P.L.311-1983, SEC.3.
IC 35-38-1-4 Presence of defendant when sentence pronounced; pronouncement
of 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 present
when sentence is to be pronounced, the court may issue a warrant for
his arrest.
(b) Sentence may be pronounced against a defendant corporation
in the absence of counsel, if counsel fails to appear on the date of
sentencing 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's
statement; inclusion of cost of incarceration in sentencing order
Sec. 5. (a) When the defendant appears for sentencing, the court
shall inform the defendant of the verdict of the jury or the finding of
the court. The court shall afford counsel for the defendant an
opportunity to speak on behalf of the defendant. The defendant may
also make a statement personally in the defendant's own behalf and,
before pronouncing sentence, the court shall ask the defendant
whether the defendant wishes to make such a statement. Sentence
shall then be pronounced, unless a sufficient cause is alleged or
appears to the court for delay in sentencing.
(b) This subsection expires June 30, 2012. A court that sentences
a person to a term of imprisonment shall include the total costs of
incarceration in the sentencing order. The court may not consider
Class I credit under IC 35-50-6-3 in the calculation of the total costs
of 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 guilty
of offense and included offense
Sec. 6. Whenever:
(1) a defendant is charged with an offense and an included
offense in separate counts; and
(2) the defendant is found guilty of both counts;
judgment and sentence may not be entered against the defendant for
the 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 of
an offense was:
(A) significant; and
(B) greater than the elements necessary to prove the
commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of
age or at least sixty-five (65) years of age at the time the person
committed the offense.
(4) The person:
(A) committed a crime of violence (IC 35-50-1-2); and
(B) knowingly committed the offense in the presence or
within hearing of an individual who:
(i) was less than eighteen (18) years of age at the time the
person committed the offense; and
(ii) is not the victim of the offense.
(5) The person violated a protective order issued against the
person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or
IC 34-4-5.1 before their repeal), a workplace violence
restraining order issued against the person under IC 34-26-6, or
a no contact order issued against the person.
(6) The person has recently violated the conditions of any
probation, parole, pardon, community corrections placement, or
pretrial release granted to the person.
(7) The victim of the offense was:
(A) a person with a disability (as defined in IC 27-7-6-12),
and the defendant knew or should have known that the
victim was a person with a disability; or
(B) mentally or physically infirm.
(8) The person was in a position having care, custody, or
control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the
result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or
a witness if the victim or witness told anyone about the offense.
(11) The person:
(A) committed trafficking with an inmate under
IC 35-44-3-9; and
(B) is an employee of the penal facility.
(b) The court may consider the following factors as mitigating
circumstances or as favoring suspending the sentence and imposing
probation:
(1) The crime neither caused nor threatened serious harm to
persons or property, or the person did not contemplate that it
would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify
the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal
activity, or the person has led a law-abiding life for a substantial
period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or
short term imprisonment.
(8) The character and attitudes of the person indicate that the
person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim
of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship
to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of
force against a person who had repeatedly inflicted physical or
sexual abuse upon the convicted person and evidence shows
that the convicted person suffered from the effects of battery as
a result of the past course of conduct of the individual who is
the victim of the crime for which the person was convicted.
(c) The criteria listed in subsections (a) and (b) do not limit the
matters 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 circumstances
or 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 personality
disorder that makes the individual likely to repeatedly commit a sex
offense (as defined in IC 11-8-8-5.2). The term includes a person
convicted in another jurisdiction who is identified as a sexually
violent predator under IC 11-8-8-20. The term does not include a
person no longer considered a sexually violent predator under
subsection (g).
(b) A person who:
(1) being at least eighteen (18) years of age, commits an offense
described 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 in
clauses (A) through (I); or
(K) a crime under the laws of another jurisdiction, including
a military court, that is substantially equivalent to any of the
offenses listed in clauses (A) through (J);
(2) commits a sex offense (as defined in IC 11-8-8-5.2) while
having a previous unrelated conviction for a sex offense for
which the person is required to register as a sex or violent
offender under IC 11-8-8;
(3) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if, after considering expert testimony, a court finds by
clear and convincing evidence that the person is likely to
commit an additional sex offense; or
(4) commits a sex offense (as defined in IC 11-8-8-5.2) while
having had a previous unrelated adjudication as a delinquent
child for an act that would be a sex offense if committed by an
adult, if the person was required to register as a sex or violent
offender 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 if
an offense committed by the person satisfies the conditions set forth
in subdivision (1) or (2) and the person was released from
incarceration, secure detention, or probation for the offense after
June 30, 1994.
(c) This section applies whenever a court sentences a person or a
juvenile court issues a dispositional decree for a sex offense (as
defined in IC 11-8-8-5.2) for which the person is required to register
with the local law enforcement authority under IC 11-8-8.
(d) At the sentencing hearing, the court shall indicate on the
record whether the person has been convicted of an offense that
makes 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 a
hearing to determine whether the person (including a child
adjudicated to be a delinquent child) is a sexually violent predator
under subsection (a). If the court grants the motion, the court shall
appoint two (2) psychologists or psychiatrists who have expertise in
criminal behavioral disorders to evaluate the person and testify at the
hearing. After conducting the hearing and considering the testimony
of the two (2) psychologists or psychiatrists, the court shall
determine whether the person is a sexually violent predator under
subsection (a). A hearing conducted under this subsection may be
combined 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 law
enforcement 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) or
more unrelated convictions for an offense described in IC 11-8-8-4.5
for which the person is required to register under IC 11-8-8. A person
who is a sexually violent predator may petition the court to consider
whether the person should no longer be considered a sexually violent
predator. The person may file a petition under this subsection not
earlier than ten (10) years after:
(1) the sentencing court or juvenile court makes its
determination under subsection (e); or
(2) the person is released from incarceration or secure
detention.
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 this
subsection or conduct a hearing to determine if the person should no
longer be considered a sexually violent predator. If the court
conducts a hearing, the court shall appoint two (2) psychologists or
psychiatrists who have expertise in criminal behavioral disorders to
evaluate the person and testify at the hearing. After conducting the
hearing and considering the testimony of the two (2) psychologists
or psychiatrists, the court shall determine whether the person should
no longer be considered a sexually violent predator under subsection
(a). If a court finds that the person should no longer be considered a
sexually violent predator, the court shall send notice to the
department of correction that the person is no longer considered a
sexually violent predator. Notwithstanding any other law, a condition
imposed on a person due to the person's status as a sexually violent
predator, including lifetime parole or GPS monitoring, does not
apply to a person no longer considered a sexually violent predator.
(h) A person is not a sexually violent predator by operation of law
under subsection (b)(1) if all of the following conditions are met:
(1) The victim was not less than twelve (12) years of age at the
time the offense was committed.
(2) The person is not more than four (4) years older than the
victim.
(3) The relationship between the person and the victim was a
dating relationship or an ongoing personal relationship. The
term "ongoing personal relationship" does not include a family
relationship.
(4) The offense committed by the person was not any of the
following:
(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 of
deadly 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 in
IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with
the drug or controlled substance without the victim's
knowledge.
(5) The person has not committed another sex offense (as
defined in IC 11-8-8-5.2) (including a delinquent act that would
be a sex offense if committed by an adult) against any other
person.
(6) The person did not have a position of authority or
substantial influence over the victim.
(7) The court finds that the person should not be considered a
sexually 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 determine
whether a person has committed a crime of domestic violence (as
defined 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 of
domestic violence, a court shall advise the defendant of the
consequences of this finding.
(d) A judge shall record a determination that a defendant has
committed a crime of domestic violence on a form prepared by the
division 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 defendant
convicted of a felony may not be sentenced before a written
presentence report is prepared by a probation officer and considered
by the sentencing court. Delay of sentence until a presentence report
is prepared does not constitute an indefinite postponement or
suspension of sentence.
(b) A victim present at sentencing in a felony or misdemeanor
case shall be advised by the court of a victim's right to make a
statement concerning the crime and the sentence.
(c) A court may sentence a person convicted of a Class D felony
without considering a written presentence report prepared by a
probation officer. However, if a defendant is committed to the
department of correction or a community corrections program under
IC 35-38-2.6, the probation officer shall prepare a report that meets
the requirements of section 9 of this chapter to be sent with the
offender to the department in lieu of the presentence investigation
report 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 impact
statement; contents
Sec. 8.5. (a) A probation officer who is conducting a presentence
investigation shall send written notification of the following to each
victim or each victim representative designated by the court under
section 2(e) of this chapter:
(1) The date, time, and place of the sentencing hearing set by
the court.
(2) The right of the victim or victim representative to make an
oral or written statement to the court at the sentencing hearing.
(3) The right of the victim or victim representative to submit or
refuse to submit to the probation officer a written or oral
statement of the impact of the crime upon the victim for
inclusion by the probation officer in a victim impact statement.
(b) The notification required by subsection (a) must be sent at
least seven (7) days before the date of the sentencing hearing to the
last known address of the victim or the victim representative.
(c) The probation officer shall prepare a victim impact statement
for inclusion in the convicted person's presentence report. The victim
impact statement consists of information about each victim and the
consequences suffered by a victim or a victim's family as a result of
the crime.
(d) Unless the probation officer certifies to the court under section
9 of this chapter that a victim or victim representative could not be
contacted or elected not to submit a statement to the probation officer
concerning the crime, the victim impact statement required under this
section must include the following information about each victim:
(1) A summary of the financial, emotional, and physical effects
of the crime on the victim and the victim's family.
(2) Personal information concerning the victim, excluding
telephone numbers, place of employment, and residential
address.
(3) Any written statements submitted by a victim or victim
representative to the probation officer.
(4) If the victim desires restitution, the basis and amount of a
request for victim restitution.
(e) A victim or victim representative is not required to submit a
statement or to cooperate in the preparation of the victim impact
statement 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; presentence
investigation matters; certification by probation officer when no
written 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 of
information 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, economic
status, education, and personal habits; and
(3) the impact of the crime upon the victim.
(c) The presentence investigation may include any matter that the
probation officer conducting the investigation believes is relevant to
the question of sentence, and must include:
(1) any matters the court directs to be included;
(2) any written statements submitted to the prosecuting attorney
by a victim under IC 35-35-3;
(3) any written statements submitted to the probation officer by
a victim; and
(4) preparation of the victim impact statement required under
section 8.5 of this chapter.
(d) If there are no written statements submitted to the probation
officer, 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 accept
the written statements of the victim or to reduce his oral
statements to writing, concerning the sentence, including the
acceptance of any recommendation.
(e) A presentence investigation report prepared by a probation
officer must include the information and comply with any other
requirements 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 human
immunodeficiency virus (HIV); sex crimes and controlled
substances
Sec. 9.5. A probation officer shall obtain confidential information
from the state department of health under IC 16-41-8-1 to determine
whether a convicted person was a carrier of the human
immunodeficiency virus (HIV) when the crime was committed if the
person is:
(1) convicted of an offense relating to a criminal sexual act and
the offense created an epidemiologically demonstrated risk of
transmission of the human immunodeficiency virus (HIV); or
(2) convicted of an offense relating to controlled substances and
the 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 other
paraphernalia 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 a
designated facility as part of the presentence investigation; and
(2) remain in the facility for examination for not more than
ninety (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 controlled
substances; confirmatory test; presentence investigation; marital
privilege; mental health service provider's civil and criminal
immunity
Sec. 10.5. (a) The court:
(1) shall order that a person undergo a screening test for the
human immunodeficiency virus (HIV) if the person is:
(A) convicted of an offense relating to a criminal sexual act
and the offense created an epidemiologically demonstrated
risk of transmission of the human immunodeficiency virus
(HIV); or
(B) convicted of an offense relating to controlled substances
and 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) or
other paraphernalia that creates an epidemiologically
demonstrated risk of transmission of HIV by involving
percutaneous contact; and
(2) may order that a person undergo a screening test for a
dangerous disease (as defined in IC 16-41-8-5) in accordance
with IC 16-41-8-5.
(b) If the screening test required by this section indicates the
presence of antibodies to HIV, the court shall order the person to
undergo a confirmatory test.
(c) If the confirmatory test confirms the presence of the HIV
antibodies, the court shall report the results to the state department
of health and require a probation officer to conduct a presentence
investigation to:
(1) obtain the medical record of the convicted person from the
state department of health under IC 16-41-8-1(a)(3); and
(2) determine whether the convicted person had received risk
counseling that included information on the behavior that
facilitates 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 the
report;
is immune from both civil and criminal liability due to the offering
of that report or testimony.
(e) The privileged communication between a husband and wife or
between a health care provider and the health care provider's patient
is 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 this
section is immune from civil and criminal liability under Indiana
statutes 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 human
immunodeficiency virus (HIV); counseling
Sec. 10.6. (a) The state department of health shall notify victims
of an offense relating to a criminal sexual act or an offense relating
to controlled substances if tests conducted under section 10.5 of this
chapter or IC 16-41-8-5 confirm that the person tested had antibodies
for the human immunodeficiency virus (HIV).
(b) The state department of health shall provide counseling to
persons 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 may
file with the court a written memorandum setting forth any
information he considers pertinent to the question of sentence. The
convicted person may attach written statements by others in support
of 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 and
conclusions; copy of presentence report; opportunity for victim to
make 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 the
presentence investigation; or
(2) provide the defendant or his counsel and the prosecuting
attorney with a copy of the presentence report.
The court also shall offer the victim, if present, an opportunity to
make 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 presentence
investigation or a copy of the presentence report sufficiently in
advance of sentencing so that the defendant will be afforded a fair
opportunity 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 kept
confidential.
(b) The materials specified in subsection (a) may not be made
available 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 is
placed under IC 35-38-2.6; and
(5) the Indiana criminal justice institute established under
IC 5-2-6;
except where specifically required or permitted by statute or upon
specific 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 department
of correction
Sec. 14. (a) If a convicted person is sentenced to a term of
imprisonment, 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 made
incident 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 means
approved 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, the
mistake does not render the sentence void. The sentence shall be
corrected after written notice is given to the convicted person. The
convicted person and his counsel must be present when the corrected
sentence is ordered. A motion to correct sentence must be in writing
and supported by a memorandum of law specifically pointing out the
defect 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 a
previously imposed sentence; and
(2) the convicted person is incarcerated or is to be incarcerated
by the department of correction;
the court shall immediately send certified copies of the corrected or
modified 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 correction
concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must
incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed
since the convicted person began serving the sentence and after a
hearing at which the convicted person is present, the court may
reduce or suspend the sentence, subject to the approval of the
prosecuting attorney. However, if in a sentencing hearing for a
convicted person conducted after June 30, 2001, the court could have
placed the convicted person in a community corrections program as
an alternative to commitment to the department of correction, the
court may modify the convicted person's sentence under this section
without the approval of the prosecuting attorney to place the
convicted person in a community corrections program under
IC 35-38-2.6.
(c) The court must give notice of the order to reduce or suspend
the sentence under this section to the victim (as defined in
IC 35-35-3-1) of the crime for which the convicted person is serving
the sentence.
(d) The court may suspend a sentence for a felony under this
section only if suspension is permitted under IC 35-50-2-2.
(e) The court may deny a request to suspend or reduce a sentence
under this section without making written findings and conclusions.
(f) Notwithstanding subsections (a) and (b), the court is not
required to conduct a hearing before reducing or suspending a
sentence if:
(1) the prosecuting attorney has filed with the court an
agreement of the reduction or suspension of the sentence; and
(2) the convicted person has filed with the court a waiver of the
right to be present when the order to reduce or suspend the
sentence 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 the
court imposes a fine, it shall conduct a hearing to determine whether
the convicted person is indigent. If the person is not indigent, the
court shall order:
(1) that the person pay the entire amount at the time sentence is
pronounced;
(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 the
county 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 this
subdivision, the person's total confinement for the crime that
resulted in the conviction must not exceed the maximum term
of imprisonment prescribed for the crime under IC 35-50-2 or
IC 35-50-3.
(b) A court may impose a fine and suspend payment of all or part
of the fine until the convicted person has completed all or part of the
sentence. If the court suspends payment of the fine, the court shall
conduct a hearing at the time the fine is due to determine whether the
convicted 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), the
court 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 on
a debt for the unpaid amount;
(2) the court may direct that the person, if the person is not
indigent, be committed to the county jail and credited toward
payment at the rate of twenty dollars ($20) for each twenty-four
(24) hour period the person is confined, until the amount paid
plus the amount credited equals the entire amount due; or
(3) the court may institute contempt proceedings or order the
convicted person's wages, salary, and other income garnished in
accordance with IC 24-4.5-5-105 to enforce the court's order for
payment 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 department
of correction under IC 35-38-3-5 may, after notice to the prosecuting
attorney of the judicial circuit in which the defendant's case
originated, hold a hearing for the purpose of determining whether the
offender named in the petition may be placed in home detention
under IC 35-38-2.5 instead of commitment to the department of
correction for the remainder of the offender's minimum sentence.
(b) Notwithstanding IC 35-35-3-3(e), and after a hearing held
under this section, a sentencing court may order the offender named
in the petition filed under IC 35-38-3-5 to be placed in home
detention under IC 35-38-2.5 instead of commitment to the
department of correction for the remainder of the offender's
minimum sentence. As added by P.L.98-1988, SEC.4.
IC 35-38-1-22 Juveniles; service of misdemeanor sentences in juvenile detention
facilities
Sec. 22. A court that imposes a sentence for conviction of a
misdemeanor upon a person who is less than eighteen (18) years of
age may enter an order requiring that the convicted person serve the
sentence 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 approval
of the judge of the juvenile court allowing the detention of the person
in 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 serious
offense for which the person is committed is a Class C or Class D
felony.
(b) Not later than forty-five (45) days after receiving a notice
under IC 11-10-11.5-2, the sentencing court may order the
department of correction to retain control over a person until the
person completes the person's fixed term of imprisonment, less the
credit time the person has earned with respect to the term, if the court
makes specific findings that support a determination:
(1) that placement of the person in a community transition
program:
(A) places the person in danger of serious bodily injury or
death; 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 of
correction may not assign a person to a community transition
program.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 serious
offense for which the person is committed is murder, a Class A
felony, or a Class B felony.
(b) A sentencing court may sentence a person or modify the
sentence of a person to assign the person to a community transition
program for any period that begins after the person's community
transition program commencement date (as defined in IC 11-8-1-5.6)
and ends when the person completes the person's fixed term of
imprisonment, less the credit time the person has earned with respect
to the term, if the court makes specific findings of fact that support
a determination that it is in the best interests of justice to make the
assignment. The order may include any other condition that the court
could impose if the court had placed the person on probation under
IC 35-38-2 or in a community corrections program under
IC 35-38-2.6.
(c) The court may make a determination under this section
without a hearing. The court shall consider any written statement
presented to the court by a victim of the offender's crime or by an
offender under IC 11-10-11.5-4.5. The court in its discretion may
consider statements submitted by a victim after the time allowed for
the submission of statements under IC 11-10-11.5-4.5.
(d) The court shall make written findings for a determination
under this section, whether or not a hearing was held.
(e) Not later than five (5) days after making a determination under
this 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 a
sentence
Sec. 27. (a) If a court imposes a sentence that does not involve a
commitment to the department of correction, the court shall require
a person:
(1) convicted of an offense described in IC 10-13-6-10; and
(2) who has not previously provided a DNA sample in
accordance 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 time
of sentencing, the court shall order the person to provide a DNA
sample immediately after sentencing.
(c) If a person described in subsection (a) is not confined at the
time of sentencing, the agency supervising the person after
sentencing shall establish the date, time, and location for the person
to provide a DNA sample. However, the supervising agency must
require 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 not
permit a person required to provide a DNA sample to challenge the
requirement that the person provide a DNA sample at a later date.
(d) A person's failure to provide a DNA sample is grounds for
revocation of the person's probation, community corrections
placement, 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; transmission
of fingerprints to prosecuting attorney and department of
correction; immunity
Sec. 28. (a) Except as provided in subsection (c), immediately
after sentencing a defendant for an offense, the court shall order the
defendant to be fingerprinted by an individual qualified to take
fingerprints. The fingerprints may be recorded in any reliable
manner, including by the use of a digital fingerprinting device.
(b) The court shall order a law enforcement officer to provide the
fingerprints to the prosecuting attorney and the state police
department, in hard copy or in an electronic format approved by the
security and privacy council established by IC 10-13-3-34.
(c) The court is not required to order the defendant to be
fingerprinted if the defendant was previously arrested and processed
at the county jail.
(d) A clerk, court, law enforcement officer, or prosecuting
attorney is immune from civil liability for an error or omission in the
transmission of fingerprints, case history data, or sentencing data,
unless the error or omission constitutes willful or wanton misconduct
or 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 the
department of correction
Sec. 29. (a) This section applies only to a sexually violent
predator, including a person who is a sexually violent predator by
operation 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 in
subsection (a) that does not involve a commitment to the department
of correction, the court shall order the parole board to place the
person on lifetime parole and supervise the person in the same
manner that the parole board supervises a sexually violent predator
who has been released from imprisonment and placed on lifetime
parole under IC 35-50-6-1(e).
(c) If a person described in subsection (b) is also required to be
supervised by a court, a probation department, a community
corrections program, a community transition program, or another
similar program upon the person's release from imprisonment, the
parole 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 of
the parole board's supervisory responsibility during the period
in which the other supervising agency is required to supervise
the 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 a
person's executed sentence, the person shall refrain from any direct
or indirect contact with an individual. As added by P.L.104-2008, SEC.21.
