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Sentence modification bill inspired by COA ruling

January 9, 2018

A recent Indiana Court of Appeals decision that prosecutors say went against longstanding practices in the sentence modification process has sparked a conversation in the Indiana legislature about courts’ discretion to modify sentences stemming from fixed-sentence plea agreements.

Sen. Mike Young, R-Indianapolis, chair of the Senate Corrections and Criminal Law committee, presented Senate Bill 64 to his committee on Tuesday, telling fellow lawmakers the measured was inspired by the October decision in State of Indiana v. Pebble Stafford, 39A04-1705-CR-930. Pebble Stafford had been sentenced to six years in the Department of Correction pursuant to a plea agreement, but the Wayne Circuit Court later modified her sentence to probation before the six years had run.

The Indiana Court of Appeals upheld the modification based on a statutory amendment enacted as part of the legislature’s 2014 criminal code reform. Specifically, Judge John Baker said the language of Indiana Code section 35-38-1-17(l) – which holds that “a person may not waive the right to sentence modification under this section as part of a plea agreement” – meant trial court’s retained discretion to modify sentences, even in fixed-sentence agreements.

But Sen. Aaron Freeman, R-Indianapolis, said that ruling, if upheld, would effectively rid prosecutors of the benefit they receive by entering into fixed-sentence agreements. Freeman has filed a similar measure, SB 199, which was assigned to the Senate Judiciary Committee.

Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, agreed with Freeman’s assessment and advocated for the adoption of Young’s bill, which purports to prohibit modification of fixed-sentence agreements without the prosecutor’s consent. Otherwise, the Stafford ruling would upset decades of accepted sentencing practice in criminal law, Powell said.

While Larry Landis, executive director of the Indiana Public Defender Council, told committee members he did not necessarily disagree with the purpose of SB 64, he also cautioned the legislators to keep an eye on upcoming Indiana Supreme Court rulings. The high court granted transfer to the Stafford case last month, and will hear oral arguments on Jan. 25.  

While the court may not issue its ruling for several months, Landis said the justice’s questions during the upcoming arguments could provide some indication on where they stand on the sentence modification issue. Powell said the justices are expected to overturn the lower court’s ruling in the case.

Aside from the impending Supreme Court ruling, Landis also expressed concern about SB 64’s language, which specifically holds that “if the convicted person was sentenced under the terms of a plea agreement, the court may not, without the consent of the prosecuting attorney, reduce or suspend the sentence and impose a sentence not authorized by the plea agreement.” That language could be read to include all plea agreements, not just fixed-sentence agreements, Landis said. Amy Levander, Krieg DeVault’s executive director of governmental affairs who spoke Tuesday on behalf of the Indiana Judges Association, echoed that sentiment.

Further, Sen. Minority Leader Tim Lanane, D-Anderson, wanted to know whether attorneys would be required to inform their clients that entering into a fixed plea agreement effectively waives their right to sentence modification absent prosecutorial support. While Powell noted that most attorneys would share that information to ensure a knowing and intelligent plea, the language of SB 64 does not enshrine such a requirement.

The Democratic senator repeatedly told his colleagues that the requirement should be mandated, and based on that issue and the other concerns raised throughout the hearing, the committee did not vote on Young’s measure. Instead, Young asked Freeman and Lanane to consult with Powell and Landis on possible amendments, which will be considered at the committee’s next meeting. 

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