In Part II of this Blog entry, I would like to discuss other pertinent changes to the Indiana Criminal Code, as well as changes being made to the ability of a defendant to petition the Court for modification of his sentence.

 

Felony Enhancement for Dealing in Controlled Substances

 

One of the most substantial felony enhancements that currently exist are those that deal with controlled substances and “drug free zones.” Specifically, certain dealing and manufacturing crimes, such as controlled substances, were enhanced by the mere fact that the crime was allegedly committed within 1000 feet of a school, family housing complex or youth program center. The exact definition and existence of a family housing complex or youth program center were vague, at best, and many defendants fell victim to these enhancements simply because they did not realize that a certain structure was a family housing complex or youth program center. These enhancements were often unfair and often prohibited defendants from negotiating a plea agreement (and forced to proceed to trial) due to the enhanced sentences.

 

Under the new criminal code, the terms family housing complex and youth program center have been removed, and the distance parameter has been decreased from 1000 feet to 500 feet. Additionally, in order to be convicted under the new enhancement language, it must be found that the offense was committed “while a person under 18 years of age was reasonably expected to be present.” The designated restricted areas are now termed as on a school bus, in/on/within 500 feet of school property or a public park. 

 

Other controlled substance enhancements that have been implemented by Indiana, likely to offset the perceived leniency, are as follows: 1) a prior conviction for dealing in a controlled substance (other than marijuana, hash oil, hashish or salvia); 2) commission of the offense while in possession of a firearm; 3) the person manufactured or financed the manufacture of the drug; and 4) the person committed the offense in the physical presence of a child less than 18 years of age, knowing that the child was present and might be able to see or hear the offense. Essentially, if you are alleged to have committed a crime of dealing a controlled substance, your potential sentence will likely be significantly enhanced if there are allegations that you did so 1) on a school bus; 2) within 500 feet of school property or public park while a person under 18 was reasonably expected to be found; 3) have a firearm in your possession; 4) a child under 18 is present in any sort or fashion; 5) you are alleged to have manufactured or assisted in the manufacture of the controlled substance and 6) you have a prior conviction for dealing a controlled substance. 

 

While the new criminal code is perceived to be softer on drug offenses in general, as you can hopefully see, there now exist many additional avenues of potential pitfalls for which you could find yourself in trouble. If you ever find yourself in trouble, or simply have questions about the new criminal code and your rights, we are always available to assist you. Please do not hesitate to call or email us!

 

Suspendibility of Sentences

 

As you may be aware, currently, in most situations the Court may not suspend your sentence below the minimum mandatory sentence if you are convicted of certain serious crimes or have a prior unrelated felony conviction. As of July 1, 2014, the Court may suspend any part (including all) of a sentence for a Level 6, Level 5, Level 4, Level 2 or 3 controlled substance felony, and Level 2 or 3 non-controlled substance felonies if the person does not have a prior unrelated felony conviction. Additionally, the Court may suspend any part above the minimum sentence for Murder, Level 1, and Level 2 or 3 non-controlled substance felonies if the person has a prior unrelated felony conviction.

 

There are many other additional nuisances to ensuring that you do not serve 1 day more than you are otherwise required to in jail, prison or any other type of criminal confinement. Now, more than ever, it is important that you have trained and qualified legal counsel to defend your rights and ensure you are protected. 

 

Modification of Sentences

 

One of the other areas of law that have troubled many defendants, and the family of the defendants, is the ability, or lack thereof, to modify one’s sentence. If you, or any friend or family member, has come into contact with the judicial system, you can probably attest to the difficulties faced when attempting to secure a Sentence Modification. As of July 1, 2014, your chances of a successful modification will increase, provided that you are able to sufficiently navigate the new criminal code.

 

Under the amended law, the Court may reduce/suspend any sentence imposed and enact any sentence that the Court could have ordered at sentencing. For once, Indiana seems to be providing a safe haven for those that are unfortunately convicted and are rehabilitated. One good aspect is that the Prosecutor’s consent is NOT required, meaning that the Court has the ability to override the State’s objection and grant your request if they are otherwise convinced you have been rehabilitated. Obviously, you cannot seek to modify a term of a bargained Plea Agreement. However, if any term of the Plea Agreement is left to the Court’s discretion, such as length of sentence or placement of incarceration.

 

It is important to note that you can only file 1 Petition to Modify per year and no more than 2 during the term of your sentence. Thus, it is extremely important that you tread carefully in your modification attempts and retain the Law Offices of Charles P. Dargo to ensure that you do not waste your limited opportunities to enact your constitution rights.