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IPAC Winter Conference2014
D.J. MoteChief Deputy Prosecutor
Jefferson County
Roadmap
Suspendible and Non-suspendible
Habitual Offender
LWOP / Death Penalty
Suspendible and Non-Suspendible
IC 35-50-2-2.2 SuspensionOffender Specific
The Court may suspend any part of a sentence for a felony EXCEPT
Minimum on Level 2 or 3 conviction (not drug convictions under IC 35-48-4)
If defendant has a prior unrelated felony conviction
IC 35-50-2-2.2 SuspensionOffense Specific
The Court may suspend any part of a sentence for a felony EXCEPT
Minimum on Level 1 felony or Murder
Non-Suspendible Convict?
Trial court shall remand under IC 35-38-1-2(d) Trial court cannot order direct commitment
to community corrections for certain offenses. IC 35-38-2.6-1
The Habitual Offender
Habitual Offender IC 35-50-2-8
Convicted of a Level 1 – Level 4 Felony:2 prior unrelated felonies, ANDAt least 1 is not an L6 or D felony
Habitual Offender IC 35-50-2-8
Convicted of a Level 6 Felony:3 prior unrelated felonies
If a prior is L5, L6, or C or D felony, then the prior conviction must have occurred within 10 years of the date of release from imprisonment, probation or parole (whichever is latest) and the date of the current offense
Habitual Offender IC 35-50-2-8(e)
Current offense is a misdemeanor enhanced to a felony solely based on a prior conviction?
Cannot file the habitual offender count.
Habitual Offender IC 35-50-2-8(e)
A conviction for a felony that was a misdemeanor enhanced solely based on a prior conviction?
May be used as a predicate offense for HFO
Commission
Conviction
Commission
Conviction
Commission Current Offense
1st Prior
2nd Prior
Habitual OffenderCommission Conviction Offense Cause no.
1Jan03 1Mar03 Robbery, class C fel 39D01-0301-FC-0000
5May05 25Sept05 Burglary, class B fel 39C01-0505-FB-0000
Habitual Offender Count
“...on one (1) or more pages separate from the rest of the charging instrument…”
It is not a separate count, although some clerk’s may need a count number
“Part 2 of Count I”
“Count II”
When should you file the habitual? As part of plea negotiations, a prosecutor may offer
to forego filing habitual offender charges against a defendant who is eligible to be so treated. Marsillett v. State, 495 N.E.2d 699, 704 (Ind. 1986)
If negotiations break down, the filing does not violate due process
The prosecutor’s conduct is simply a justifiable exploitation of legitimate bargaining leverage
When can you file the habitual?
Must be made at least thirty (30) days before the commencement of trial.
Any time before commencement of trial if it does not prejudice the substantial rights of the defendant
Must grant defense a continuance for any reason
IC 35-34-1-5(e)
Habitual Offender Penalties
Murder, L1 – L4 felony6 – 20 years
For L5 or L6 Felony 2 – 6 years
Non-suspendible
Habitual Offender IC 35-50-2-8
Results in an enhanced sentence
NOT a separate crime resulting in consecutive sentence
Court shall attach to the felony with the highest sentence imposed (must specify)
Must be filed by information or indictment
Must have an initial hearing
So how does this go down?
Opening Statement
Presentation of Evidence
Closing argument
Opening Statement
The only issue at trial is whether defendant has 2 prior unrelated felony convictions
The evidence will show that when the defendant committed the present offense, he had previously been convicted of [Prior #1 on Date 1] and [Prior #2 on Date 2]
Opening Statement
The reason for the bifurcation is to ensure the defendant gets a fair trial
Since you had no knowledge of his past criminal history, you could not consider it or hold it against him when deciding his guilt or innocence on the underlying crime
Opening Statement
Most of the evidence will be documentation
The only issue for you to decide is whether defendant has 2 prior unrelated felony convictions. We will prove that he does, and ask you to find him guilty.
Presentation of Evidence
(Move to incorporate)
Prove priors with certified documents Charging Information Plea Agreement (if any) Judgment of Conviction Abstract of Judgment PEN PACK with prints
Ind.Evidence Rules 803(8) , (22), and 902(4)
Presentation of Evidence
Tie the Defendant to the prior conviction
Fingerprint evidence and testimony?
Arresting Officer testimony
Former attorney testimony
Closing Argument
Each document represents evidence defendant has 2 prior unrelated convictions. Charging information contains identifiers and cause numbers, which in turn correlate to the judgment of convictions and abstracts
The legislature enacted the statute to give the community a tool to use against repeat offenders who have not been deterred by previous punishment.
Closing Argument
The only issue is whether he has 2 prior unrelated felony convictions.
We have proven beyond a reasonable doubt that he does. Find him guilty of being an habitual offender.
Nullification
Walden v. State, 895 N.E.2d 1182 (Ind.2008)
Permissible for jury to refuse to make habitual offender finding irrespective of uncontroverted proof of prior felonies
Habitual offender is a “status” determination and not a “guilt or innocence” determination
Life Without Parole / Death Penalty
IC 35-50-2-9(a)
LWOP / Death Penalty IC 35-50-2-9
16 aggravators that qualify a defendant
Statutory procedures for amending do not apply to an information requesting the death penalty filed after initial charge
Belated death penalty request is improper only if it prejudices the substantive rights of the defendant
LWOP / Death Penalty
Allege the existence of a qualifying aggravating circumstance on a separate page
Bifurcated proceeding (guilty / penalty)
Jury may consider all evidence introduced at guilt phase together with new evidence at penalty phase
LWOP / Death Penalty
Rules of evidence are applicable in penalty phase
No requirement that the State expressly move to incorporate the guilt phase evidence at the penalty phase
Victim impact evidence after sentence is pronounced
Death Penalty
If the jury reaches a sentencing recommendation, the judge shall sentence the defendant accordingly. IC 35-50-2-9(e).
If the jury is unable to agree, the court shall discharge the jury and proceed as if the hearing had been to the court alone. IC 35-50-2-9(f).
No person less than 18 at time of the murder may be sentenced to death. IC 35-50-2-3(b).
Separate Findings are Required
Identify mitigating and aggravating circumstances Specific reasons why court found each
circumstance to exist Factors were balanced and evaluated State proved beyond a reasonable doubt one
statutory aggravator Court considered the jury’s recommendation Court’s “personal conclusion” the sentence is
appropriate
Where we’ve been…
Suspendible and Non-suspendible
Habitual Offender
LWOP / Death Penalty
D.J. Mote812.599.7623
Sentencing Issues
Then & Now:
Where this is headed…
Enhancements Consecutive and Concurrent Sentences Double Jeopardy Post Sentencing: Probation Revocation &
Sentence Modification
Enhancements
Plastic Surgery for Sentencing
CONSECUTIVE & CONCURRENT
When you can pile on….and when you can’t.
DOUBLE JEOPARDY“I’ll take esoteric legal topics for a $1000, Alex.”
Indiana’s Double Jeopardy Clause
Article I, Section 14: “No person shall be put in jeopardy twice for the same offense.”
PURPOSE: to prevent the State from proceeding against a person twice for the same criminal transgression.
*NOTE: The protections for defendant’s are GREATER AND MORE EXTENSIVE under Indiana’s constitution than under the federal constitution.
TEST: to determine whether there has been a violation, EITHER of these tests must be met:
1. “Statutory elements test” OR2. the “actual evidence” test.
Example: Double Jeopardy Analysis
Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Some Bible scholars were at a lake drinking and drugging. The defendant noticed that victim had a lot of money in his wallet. The defendant, victim and two others get into a car to drive to another party. They stop on a bridge, get out to relieve themselves and beat the hell out of victim. Two of the men held victim down while the third took vic’s wallet. After his billfold was taken, victim was pushed over the side of the bridge.
Defendant is charged with: robbery, class C felony & battery, class a misdemeanor.
Statutory or Same Elements Test
The first Indiana test is similar to the federal test. See: Games v. State, 684 N.E.2d 466 (Ind. 1997); Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
What information is analyzed under the “statutory elements” test?
ONLY THE STATUTES– no other considerations (i.e. jury instructions, charging information, evidence or arguments of counsel).
Each offense must contain at least one element which is separate and distinct from the other offense so that the same evidence is not necessary to convict for both offenses.
EXAMPLE: “Statutory Elements Test”Richardson v. State, 717 N.E.2d 32 (Ind. 1999)
Elements of Robbery
• (1) the defendant• (2) knowingly or
intentionally • (3) took property from • (4) another person• (5) by using or
threatening the use of force.
Elements of Battery
• (1) The defendant• (2) knowingly or
intentionally• (3) touched another
person • (4) in a rude, insolent, or
angry manner• (5) Resulting in bodily
injury to another person.
NO DOUBLE JEOPARDY VIOLATION
Indiana’s “Actual Evidence” Test
WTF IS THE “ACTUAL EVIDENCE” TEST?
DEFINITION: “Under this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson, at 53.
ACTUAL EVIDENCE TEST
"In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel." Lee v. State, 892 N.E.2d 1231, (Ind. 2008)
APPLICATIONRichardson v. State, 717 N.E.2d 32 (Ind. 1999)
CHARGING INFORMATION: did not differentiate between the beating and the shove off of the bridge. The shove could have constituted a subsequent battery.
EVIDENCE: the evidence at trial dealt only with the beating before the taking of the money and the injury sustained by the victim during the robbery. No evidence of injuries from getting shoved off of the bridge.
ARGUMENTS OF COUNSEL: focused only on the injuries sustained as a result of the beating during the robbery.
INSTRUCTIONS: dealt with bodily injury resulting from beating.
HELD: VIOLATED INDIANA’S DOUBLE JEOPARDY CLAUSE.
EXAMPLE: “Actual Evidence Test”Richardson v. State, 717 N.E.2d 32 (Ind. 1999)
Elements of Robbery
• (1) the defendant• (2) knowingly or
intentionally • (3) took property from • (4) another person• (5) by using or
threatening the use of force.
Elements of Battery
• (1) The defendant• (2) knowingly or
intentionally• (3) touched another
person • (4) in a rude, insolent, or
angry manner• (5) Resulting in bodily
injury to another person.
IMPORTANT NOTES:
Not sufficient for a defendant to show that the trial evidence may have been used to prove a SINGLE ELEMENT of two distinct crimes. A defendant must show that the same evidentiary facts were used to prove the BODY OF ESSENTIAL ELEMENTS. Redman v. State 743 N.E.2d 263.
The actual evidence test does NOT prohibit multiple convictions for a single criminal act where multiple victims are harmed. Williamson v. State, 798 N.E.2d 450 (Ind.Ct.App 2005)
The fact that crimes are committed simultaneously is NOT dispositive under the actual evidence test. Hardley v. State, 893 N.E.2d 1140 (Ind.Ct.App. 2008).
SPECIFIC AREAS OF APPLICATION
Sentencing Enhancements Child Molesting Cases “Single larceny rule”
Post-Conviction Issues
After the Thrill Is Gone
AFTER THE THRILL IS GONE…
• 1. Probation Revocations General Probation
Conditions: I.C. 35-38-2-1 to 35-38-2-2.1
Sex Offender on Probation I.C. 35-38-2-2.2 and 2.4 and
2.5 Special Conditions –
Stalking I.C. 35-38-2-2.6
Violation of Conditions I.C. 35-38-2-3
• 2. Sentence Modifications I.C. 35-38-1-17
PROBATION REVOCATION
PROBATIONARY PERIOD
A Defendant’s probationary period begins immediately after sentencing, even if his or her actual probation begins at a later date. Kopkey v. State, 743 N.E.2d 331, 339 (Ind.App. 2001)
The probationary period is tolled from the time of filing of the revocation petition until its disposition. Mumford v. State, 651 N.E.2d 1176 (Ind.App.1995); I.C. 35-38-2-3(c).
The conditions of probation are not tolled during the pendency of the petition. Perry v. State, 642 N.E.2d 536 (Ind.App. 1994).
SEARCH & SEIZURE FOR PROBATIONERS
Being on probation is not a complete waiver of a person’s rights against search and seizure. In the good old days…
Now: there has to be “reasonable suspicion” to conduct a search.
Uniformed officers can’t simply conduct routine probation searches UNLESS requested to by the probation officer and the request is accompanied by some minimum level of objective justification… a la the “reasonableness requirement.” Fitzgerald v. State, 805 N.E.2d 857 (Ind.Ct.App. 2004)
PROBATION VIOLATIONS
I.C. 35-38-2-1 Whenever the court places a person on probation, the court shall advise
the person that a petition to revoke may be filed before the earlier:(A) one year after termination of probation(B) 45 days after state receives notice of violation
“NOTICE” DEFINED:
Depends on circumstances of case
State is given reasonable time and opportunity to inquire or ascertain facts before being affected with notice. Louth v. State, (Ind.Ct.App.1999)
TIME FOR FILING A PETITION
A Petition to revoke probation may be filed at any time during the defendant’s probationary term. Sutton v. State, 689 N.E.2d 452, 455 (Ind.Ct.App. 1997).
The 45 Days filing requirement applies only if a defendant’s probation has ended. Sutton v. State, 689 N.E.2d 452, 455 (Ind.Ct.App. 1997).
TIME FOR FILING A PETITION
IC 35-38-2-3 The Court may revoke a person’s probation if:
(1) person violated condition of probation during the probationary period, and
(2) petition to revoke is filed during the probationary period or before the earlier: (A) one (1) year after the termination of probation (B) Forty-five (45) days after the state receives notice
PROBATION VIOLATIONS
Where a probationer has… (1) Committed a New Crime
I.C. 35-38-2-1(b); Childers v. State, 656 N.E.2d 514 (Ind.App.1995)
(2) Violated a condition of Probation specified and imposed by the court. Hoffa v. State, 368 NE2d 250 (Ind.1977)
a petition alleging violation of probation may be filed by either the probation officer or a prosecuting attorney. Noethtich v. State, 676 NE2d 1078, (Ind. Ct. App 1997).
PROBATION VIOLATIONS
PRE-HEARING DETENTION
I.C. 35-38-2-3(b): when a petition is filed… The court MAY
(1) Order a summons be issued (2) Order a warrant for the person’s arrest
I.C. 35-38-2-3(d): The Court MAY admit the person to bail pending a
hearing If the person is NOT admitted to bail can be held
no longer than 15 days.
VIOLATION HEARING
Probation cannot be summarily revokedGagnon v. Scarpelli, 411 U.S. 778 (1973); Davis v. State 916 N.E.2d 736 (Ind.App.2009)IC 35-38-2-3(e)
Due Process requires right to a Hearing
Need preliminary Hearing to determine probable cause only if defendant is in custody
DUE PROCESS
Written Notice of Claimed Violations;
Disclosure of Evidence against defendant;
Opportunity to be heard; and present evidence;
Right to confront and cross examine witnesses;
A neutral and detached hearing body;
VIOLATION HEARING
Criminal Rule 4 Doesn’t apply to probation violations No “speedy trial” right
I.C. 35-38-2-3(e): State must prove violation by a preponderance of the evidence. Isaac v. State, 605 NE2d 144, 147 (Ind.1992).
EVIDENCE IN VIOLATION HEARINGS
Ind. Evid. Rule 101(c)(2): Rules of Evidence do NOT apply to probation hearings
Court can consider relevant evidence bearing some substantial indicia of reliability. Cox v. State, 706 N.E.2d 547, 551 (Ind.1999)
Hearsay = “substantial trustworthiness.” Reyes v. State, 868 N.E.2d 438 (Ind.2007)
6th Amendment right to confrontation does NOT apply. Crawford v. Washington,
Exclusionary Rule does not fully apply. Henderson v. State, 544 N.E.2d 507, 513 (Ind.1989).
Illegally seized evidence is excluded only if it is seized as part of continuing plan of police harassment or particularly offensive. Dulin v. State, 346 N.E.2d 746 (Ind.App.1976)
EVIDENCE IN VIOLATION HEARINGS
Statements to Probation Officers No Miranda issues
No 5th Amendment Protection from Self-Incrimination
Probationer may be forced to provide incriminating information, but state may not use it in later criminal proceeding. Bussberg v. State, 827 N.E.2d 37, 41 (Ind.App.1005).
RESOLUTION
I.C. 35-38-2-3: If the court finds defendant violated probation, the court may:
(1) continue the person on probation with or without modifying or enlarging the conditions;
(2) extend the probationary period, or not more than 1 year beyond original period
(3) order execution of all or part of sentence.
SENTENCE MODIFICATION
SENTENCE MODIFICATION:INDIANA CODE 35-38-1-17
• BACK THEN…
• (a) Within 365 days after Def. begins serving the sentence imposed meant court had discretion to grant.
• (b) After 365 days after beginning to serve sentence: petitions subject to prosecutor approval.
• NOW…• Prosecutor has little or no say
in the outcome of a petition.• Still have an obligation to
notify victims.• Defendant does not get
unlimited bites at the apple.• Right to modification cannot
be bargained away in plea negotiations
• New statute doesn’t apply to credit restricted felons.
THE GOOD NEWS…
For criminal defendants charged, convicted and sentenced BEFORE July 1, 2014, the old rules of sentence modification STILL APPLY.I.C. 1-1-5.5-21: A section of P.L. 158-2013 or HHEA 1006-2014 does not affect:
(1) Penalties incurred; (2) crimes committed; or (3) proceedings begun;
Before the effective date of that Section. . .Those penalties crimes and proceedings continue and shall be imposed and enforced under prior law as if that Section . . .had not been enacted.
THE GOOD NEWS…
I.C. 1-1-5.5-21: The General Assembly does not intend the
doctrine of amelioration to apply to any section of P.L. 158-2013 pr HEA 1006-2014.
Modifications BEFORE July 1, 2014…
WITHIN 365 Days. . .
Trial court has sole discretion to grant shock probation. Reviewed only on abuse of discretion. State ex rel. Abel v. Vigo Circuit
Court, 462 N.E.2d 61 (Ind. 1984).
Court can suspend sentence only if suspension is permitted under IC 35-50-2-2
Requirements:(1) hearing (2) Prosecutor notice (3) DOC report. Where sentence has been imposed pursuant to a plea
agreement containing specific term of years, that sentence cannot be altered unless the agreement contained specific reservation. Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.1994).
AFTER 365 DAYS. . . Prosecutors have VETO power…Court needs your approval
Judge cannot circumvent the statute by declaring that he reserves the right to change the sentence at any future time. State v. Fulkrod, 753 N.E.2d 630 (Ind.2001).
Request for change in placement after 365 days is a modification and requires prosecutor consent
UNLESS ….. If the Court COULD have placed defendant in community corrections program as an alternative to DOC, the Court STILL can modify without prosecutor approval to place defendant in community corrections program.
Watch for included language in pleas that prevented modification. These remain valid.
Watch for a fixed term of years in the plea.
AFTER JULY 1, 2014…
Modification Requirements
You still have a statutory obligation to notify victims. If the request is within 365 days of defendant
beginning sentence: Modification request requires court to get a DOC report
regarding defendant’s behavior. Court must put reasons on record but is not required to
make written findings. If the request is beyond 365 days of defendant
beginning sentence: There is no reporting requirement from DOC;
Modification Requirements
Defendant does not get unlimited bites at the apple. Can only ask once in 365 days and only twice during any consecutive period of incarceration.
Right to modification cannot be bargained away in plea negotiations. It may still be found, however, in the particular context of
your case i.e. failure to comply with the statute.
New statute DOES NOT apply to credit restricted felons.
Modification Requirements
“…the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing.” More fixed terms in pleas. Watch out for 35-50-2-2.2 – make sure the
defendant qualifies! Court is required to give reasons for grant or
denial on the record – in front of the victims you have notified.
QUICK FINAL WORD FOR THE TEAM…
Be sure to communicate with other prosecutors who may be relying on your conviction for a habitual enhancement or elevating current cases with prior convictions.