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Indiana Criminal Law Concepts for Victims or Essential Witnesses

Indiana Criminal Law Concepts for Victims or Essential Witnesses. Prepared by: Andre Miksha Chief Deputy Prosecuting Attorney 24 th Judicial Circuit (Hamilton County) One Hamilton County Square, Suite 134 Noblesville, Indiana 46060. Last Updated:

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Indiana Criminal Law Concepts for Victims or Essential Witnesses

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  1. Indiana Criminal LawConcepts for Victims or Essential Witnesses Prepared by: Andre Miksha Chief Deputy Prosecuting Attorney 24th Judicial Circuit (Hamilton County) One Hamilton County Square, Suite 134 Noblesville, Indiana 46060 Last Updated: September 3, 2014

  2. Table of Contents • Terms • The Process of a Criminal Case • Punishments for Class D – A Felonies • Punishments for Level 6 – 1 Felonies • Plea Agreements • Hamilton County Prosecuting Attorney’s Office Exit

  3. Table of Contents: Terms • Terms discussed: • Advisory, Maximum, & Minimum • Consecutive & Concurrent • Executed & Suspended • Probation • Non-Suspendible • Placement (IDOC, WR, & HD) • Credits • Argued Open, Caps, & Stipulated

  4. Terms: Sentencing Range • Set by Indiana statutes • Advisory sentence • The “average” point with aggravating (bad) or mitigating (good) circumstances balancing each other out. • Maximum sentence • The highest possible sentence • Minimum sentence • The lowest possible sentence

  5. Terms: Consecutive & Concurrent If multiple sentences (separate charges) are imposed, they may be consecutive or concurrent to each other • Consecutive • One after another • Concurrent • At the same time

  6. Terms: Executed & Suspended • Executed • The terms of the sentence that are served upon sentencing • Suspended • The terms of the sentence that are not served immediately but, instead, hang over the Defendant’s head over during a period of probation. The suspended sentence can be later executed when probation is violated.

  7. Terms: Probation • Probation • The Defendant is ordered to follow certain conditions set forth by the Court, under the supervision of a probation officer, for a specific period of time. • Standard conditions of probation include: • Submission to drug testing and being clean • Not committing any additional crime • Conditions may include: • Treatment and counseling • Payment of restitution

  8. Terms: Non-Suspendible • Non-Suspendible • Situations in which the minimum sentence may not be suspended by the Court • The minimum sentence must be executed

  9. Terms: Placement • Types of Placement: • Indiana Department of Correction (IDOC) • Prison • Work Release (WR) • Live in the corrections center • Released to go to job or school according to schedule • Home Detention with Electronic Monitoring (HD) • Live at home • Electronic bracelet monitors their presence at home

  10. Terms: Actual-Time Credit • Actual-time credit • Credit is applied against the sentence for the days served in jail while held pending trial for that offense • Also earned in IDOC (prison), WR, and HD SeeGood-Time Credit

  11. Terms: Good-Time Creditfor offenses committed before July 1, 2014 • Good-time credit • Earn another 1 day of credit to be applied against the sentence for each day served in jail while held pending trial for that offense • Also earned in IDOC (prison), WR, and HD • Example: 2-year sentence in IDOC or WR would be served after 1 actual year • 1 year of actual-time credit • + 1 year of good-time credit

  12. Terms: Good-Time Creditfor Level 1-5 Felonies committedafter June 30, 2014 • Good-time credit for Level 1-5 Felonies • Earn another 1 day of credit to be applied against the sentence for every three (3) days served in jail while held pending trial for that offense • Also earned in IDOC (prison), WR, and HD • Example: 4-year sentence in IDOC or WR would be served after 3 actual years • 3 years of actual-time credit • + 1 year of good-time credit

  13. Terms: Good-Time Creditfor misdemeanors and Level 6 Felonies committed after June 30, 2014 • Good-time credit • Earn another 1 day of credit to be applied against the sentence for each day served in jail while held pending trial for that offense • Also earned in IDOC (prison), WR, and HD • Example: 2-year sentence in IDOC or WR would be served after 1 actual year • 1 year of actual-time credit • + 1 year of good-time credit

  14. Terms: Argued Open, Caps, & Stipulated • Argued Open • The Court is not limited by the parties • Only limited by the statutory maximums and minimums • Caps • The parties argue to the Court • Court may not impose a sentence greater than a certain amount agreed-to by the parties • Stipulated • The parties agree upon all the terms • The Court has no discretion to impose anything but that sentence.

  15. The Process • Charging • Bail • Pre-trial • Trial / Guilty Plea • Sentencing

  16. The Process: Charging • The State (the Prosecuting Attorney’s Office) files documents with the Court: • Charging Information • Formally declares the charges • Establishes the elements (facts the State must prove beyond a reasonable doubt) • Probable Cause Affidavit • Details why the State believes the Defendant committed the charged offense(s) • Signed under oath by an officer • Provides a basis for the arrest

  17. The Process: Bail / Bond • Defendants may be released from jail upon the posting of property (usually money) to ensure future appearance in Court • State makes recommendation to the Court • Ultimately controlled by the Court • Court establishes a dollar amount • Conditions may be imposed • No-contact with victims, etc. • May be “cash” or “surety” • Cash => Individual posts the full amount. Is refunded (minus certain fees) at the conclusion of the case. • Surety => Bondsman is paid 10% and posts the bail required by the Court • Example: $5,000 bond is posted by a bondsman who is paid $500 by the Defendant. The 10% is non-refundable.

  18. The Process: Pre-Trial • Once charges are filed and the Defendant is arrested … • Initial Hearing • Formally read the charges • Trial dates are set by the Court • Attorney may be appointed for the Defendant • Discovery • The process by which the State and the Defendant share the information gathered • May include a deposition (sworn examination) of witnesses

  19. The Process: Pre-Trial • Pre-trial conferences • Meeting between the State and Defense • May be in front of a Judge or held informally • Discuss discovery • Determine whether the Court needs to get involved • Discuss the pending trial date. Options include: • Confirm for trial • Delay (“continue”) the trial for more discovery / negotiations • Set the case for a hearing at which the Defendant will plead guilty to some or all of the charges

  20. The Process: Pre-Trial • Timeline – Criminal Rule 4 • Not counting delays caused by the Defendant or the Court, the Defendant have the trial within ____ days of their arrest: • 365 days if released (out on bond) • 180 days if held in jail on these charges • 70 days if held in jail on these charges and the Defendant has invoked their “Speedy Trial” right

  21. The Process: Trial / Guilty Plea • Jury Trial • Defendant’s right to have case heard by a jury • A jury determines guilt only • Does not determine the punishment or sentence • Comprised of 12 residents of county • Unanimous decision required • Human factors often come into play • Bench Trial • A Judge hears the evidence and determines guilt

  22. The Process: Trial / Guilty Plea • Burden of Proof • Beyond a Reasonable Doubt • Not beyond all doubt • A very high standard • Rules of Evidence control what the fact finder (jury or judge) may hear

  23. The Process: Trial / Guilty Plea • Guilty Plea • Defendant may enter a plea of guilty to a charge • May be with an agreement with the State • Sentencing date will be set

  24. The Process: Sentencing • The Judge sentences (not the jury) • Discretion is controlled by: • Indiana state law (statutes) • Plea agreement, if present • A pre-sentence investigation (PSI) report will be prepared by the Probation Department • A “This Is Your Life” document detailing: • Criminal history, Family, Employment • Physical health / mental health / substance abuse • Aids the Court to understand who it is sentencing

  25. Felony Punishments for offenses committed before July 1, 2014 • Class D Felony • Class C Felony • Class B Felony • Class A Felony • Murder

  26. Offenses committed before 7/1/2014 Class D Felony 3 years Maximum 1½ years Advisory ½ year Minimum

  27. Offenses committed before 7/1/2014 Class C Felony 8 years Maximum 4 years Advisory 2 years Minimum

  28. Offenses committed before 7/1/2014 Class B Felony 20 years Maximum 10 years Advisory 6 years Minimum

  29. Offenses committed before 7/1/2014 Class A Felony 50 years Maximum 30 years Advisory 20 years Minimum

  30. Offenses committed before 7/1/2014 Murder 65 years Maximum 55 years Advisory 45 years Minimum

  31. Offenses committed before 7/1/2014 Capital Murder Death Require Additional Findings ∞ Life Without Parole 65 years Maximum 55 years Advisory 45 years Minimum

  32. Felony Punishments for offenses committed after June 30, 2014 • Level 6 Felony • Level 5 Felony • Level 4 Felony • Level 3 Felony • Level 2 Felony • Level 1 Felony • Murder

  33. Offenses committed after 6/30/2014 Level 6 Felony 2 ½ years Maximum 1 year Advisory ½ year Minimum

  34. Offenses committed after 6/30/2014 Level 5 Felony 6 years Maximum 2 years Advisory 1 year Minimum

  35. Offenses committed after 6/30/2014 Level 4 Felony 12 years Maximum 6 years Advisory 2 years Minimum

  36. Offenses committed after 6/30/2014 Level 3 Felony 16 years Maximum 9 years Advisory 3 years Minimum

  37. Offenses committed after 6/30/2014 Level 2 Felony 30 years Maximum 17½ years Advisory 10 years Minimum

  38. Offenses committed after 6/30/2014 Level 1 Felony 40 years Maximum 30 years Advisory 20 years Minimum

  39. Offenses committed before 7/1/2014 Murder 65 years Maximum 55 years Advisory 45 years Minimum

  40. Offenses committed before 7/1/2014 Capital Murder Death Require Additional Findings ∞ Life Without Parole 65 years Maximum 55 years Advisory 45 years Minimum

  41. Death Penalty & Life Imprisonment • Must prove to the fact-finder (jury) at least one: • The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following: arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity, dealing in cocaine or a narcotic drug. • Detonation of an explosive with intent to injure person or damage property • Lying in wait. • Hired to kill. • Hiring another person to kill. • The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either: (A) the victim was acting in the course of duty; or (B) the murder was motivated by an act the victim performed while acting in the course of duty. • Defendant has been convicted of another murder. • Defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder. • … [continued on next page]

  42. Death Penalty & Life Imprisonment [continued]: • Defendant was under the custody of the department of correction; under the custody of a county sheriff; on probation after receiving a sentence for the commission of a felony; or on parole at the time the murder was committed. • Defendant dismembered the victim. • Defendant burned, mutilated, or tortured the victim while the victim was alive. • Victim of the murder was less than twelve (12) years of age. • Victim was a victim of any of the following offenses for which the defendant was convicted: battery as a Class D or C felony; kidnapping; criminal confinement ; or a sex crime • Victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying. • Intentionally discharging a firearm into an inhabited dwelling; or from a vehicle. • Victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability

  43. Plea Agreements & Sentencing • An agreement between the State and Defendant • Negotiated by the Deputy Prosecutor and the Defense Counsel • Court later accepts or rejects the agreement as submitted to it • Generally discusses and determines the … • Charges to be resolved by means of: • Plea of guilty • Dismissed • Sentence to be imposed on the guilty charges

  44. Plea Agreements & Sentencing • Many sentencing options are available for discussion: • How the sentence will be determined: • Argued open to the Court • Argued with a cap to the Court, or • Completely stipulated • How large the imposed sentence will be • Whether any or all of the sentence will be executed • Whether any or all of the sentence will be suspended • Probation: How long and any special terms • How the sentence will be served (“placement”) • Prison, work release, home detention, or some combination thereof

  45. Plea Agreements & Sentencing • Other factors include: • Consecutiveor concurrent sentence situations: • Multiple charges • Other pending sentences • Must run consecutively to the other case if committed while on bond or probation on that other case • Non-Suspendible situations • Defendant has a prior felony within a certain period of time • Certain offense are also non-suspendible by law • Jail credit • Defendant will receive actual-time and good-time credits for days served in jail awaiting trial and/or sentencing

  46. Hamilton County Prosecutor’s Office • 317-776-8595 • Track case status at: • http://mycase.in.gov • Cause number is comprised of (example): • 29 – Hamilton County • D01 – Superior Court 1 • 1405 – Filed in May (Month 05) of 2014 • FC – Lead charge is a Class C Felony • 327 – a sequential number unique to this case Exit

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