IPAC Winter Conference 2014 D.J. Mote Chief Deputy Prosecutor Jefferson County

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


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


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.


(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)


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


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


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


D.J. Mote812.599.7623

[email protected]

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


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).


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;


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.


“…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.

Documents

IPAC Winter Conference 2014 D.J. Mote Chief Deputy Prosecutor Jefferson County