CHAPTER 2. DEATH SENTENCE AND SENTENCES FOR FELONIES AND HABITUAL OFFENDERS
IC 35-50-2
Chapter 2. Death Sentence and Sentences for Felonies and
Habitual Offenders
IC 35-50-2-1
Definitions
Sec. 1. (a) As used in this chapter, "Class D felony conviction"
means a conviction of a Class D felony in Indiana and a conviction,
in any other jurisdiction at any time, with respect to which the
convicted person might have been imprisoned for more than one (1)
year. However, it does not include a conviction with respect to which
the person has been pardoned, or a conviction of a Class A
misdemeanor under section 7(b) of this chapter.
(b) As used in this chapter, "felony conviction" means a
conviction, in any jurisdiction at any time, with respect to which the
convicted person might have been imprisoned for more than one (1)
year. However, it does not include a conviction with respect to which
the person has been pardoned, or a conviction of a Class A
misdemeanor under section 7(b) of this chapter.
(c) As used in this chapter, "minimum sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20) years;
(3) for a Class B felony, six (6) years;
(4) for a Class C felony, two (2) years; and
(5) for a Class D felony, one-half (1/2) year.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.114; P.L.334-1983, SEC.1; P.L.98-1988, SEC.8;
P.L.243-2001, SEC.2 and P.L.291-2001, SEC.225.
IC 35-50-2-1.3
Advisory sentences
Sec. 1.3. (a) For purposes of sections 3 through 7 of this chapter,
"advisory sentence" means a guideline sentence that the court may
voluntarily consider as the midpoint between the maximum sentence
and the minimum sentence.
(b) Except as provided in subsection (c), a court is not required to
use an advisory sentence.
(c) In imposing:
(1) consecutive sentences for felony convictions that are not
crimes of violence (as defined in IC 35-50-1-2(a)) arising out of
an episode of criminal conduct, in accordance with
IC 35-50-1-2;
(2) an additional fixed term to an habitual offender under
section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender under
section 14 of this chapter;
a court is required to use the appropriate advisory sentence in
imposing a consecutive sentence or an additional fixed term.
However, the court is not required to use the advisory sentence in
imposing the sentence for the underlying offense.
(d) This section does not require a court to use an advisory
sentence in imposing consecutive sentences for felony convictions
that do not arise out of an episode of criminal conduct.
As added by P.L.71-2005, SEC.5. Amended by P.L.178-2007, SEC.4.
IC 35-50-2-1.4
"Criminal gang" defined
Sec. 1.4. For purposes of section 15 of this chapter, "criminal
gang" means a group with at least three (3) members that
specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued
membership;
the commission of a felony or an act that would be a felony if
committed by an adult or the offense of battery (IC 35-42-2-1).
As added by P.L.109-2006, SEC.2. Amended by P.L.192-2007,
SEC.12.
IC 35-50-2-1.5
"Individual with mental retardation" defined
Sec. 1.5. As used in this chapter, "individual with mental
retardation" has the meaning set forth in IC 35-36-9-2.
As added by P.L.158-1994, SEC.4. Amended by P.L.99-2007,
SEC.211.
IC 35-50-2-1.8
"Sex offense against a child" defined
Sec. 1.8. As used in this chapter, "sex offense against a child"
means an offense under IC 35-42-4 in which the victim is a child less
than eighteen (18) years of age.
As added by P.L.53-2005, SEC.1.
IC 35-50-2-2
Suspension of sentence; limitations
Sec. 2. (a) The court may suspend any part of a sentence for a
felony, except as provided in this section or in section 2.1 of this
chapter.
(b) Except as provided in subsection (i), with respect to the
following crimes listed in this subsection, the court may suspend
only that part of the sentence that is in excess of the minimum
sentence, unless the court has approved placement of the offender in
a forensic diversion program under IC 11-12-3.7:
(1) The crime committed was a Class A felony or Class B
felony and the person has a prior unrelated felony conviction.
(2) The crime committed was a Class C felony and less than
seven (7) years have elapsed between the date the person was
discharged from probation, imprisonment, or parole, whichever
is later, for a prior unrelated felony conviction and the date the
person committed the Class C felony for which the person is
being sentenced.
(3) The crime committed was a Class D felony and less than
three (3) years have elapsed between the date the person was
discharged from probation, imprisonment, or parole, whichever
is later, for a prior unrelated felony conviction and the date the
person committed the Class D felony for which the person is
being sentenced. However, the court may suspend the minimum
sentence for the crime only if the court orders home detention
under IC 35-38-1-21 or IC 35-38-2.5-5 instead of the minimum
sentence specified for the crime under this chapter.
(4) The felony committed was:
(A) murder (IC 35-42-1-1);
(B) battery (IC 35-42-2-1) with a deadly weapon or battery
causing death;
(C) sexual battery (IC 35-42-4-8) with a deadly weapon;
(D) kidnapping (IC 35-42-3-2);
(E) confinement (IC 35-42-3-3) with a deadly weapon;
(F) rape (IC 35-42-4-1) as a Class A felony;
(G) criminal deviate conduct (IC 35-42-4-2) as a Class A
felony;
(H) except as provided in subsection (i), child molesting (IC
35-42-4-3) as a Class A or Class B felony, unless:
(i) the felony committed was child molesting as a Class B
felony;
(ii) the victim was not less than twelve (12) years old at
the time the offense was committed;
(iii) the person is not more than four (4) years older than
the victim, or more than five (5) years older than the
victim if the relationship between the person and the
victim was a dating relationship or an ongoing personal
relationship (not including a family relationship);
(iv) the person did not have a position of authority or
substantial influence over the victim; and
(v) the person has not committed another sex offense (as
defined in IC 11-8-8-5.2) (including a delinquent act that
would be a sex offense if committed by an adult) against
any other person;
(I) robbery (IC 35-42-5-1) resulting in serious bodily injury
or with a deadly weapon;
(J) arson (IC 35-43-1-1) for hire or resulting in serious
bodily injury;
(K) burglary (IC 35-43-2-1) resulting in serious bodily injury
or with a deadly weapon;
(L) resisting law enforcement (IC 35-44-3-3) with a deadly
weapon;
(M) escape (IC 35-44-3-5) with a deadly weapon;
(N) rioting (IC 35-45-1-2) with a deadly weapon;
(O) dealing in cocaine or a narcotic drug (IC 35-48-4-1) if
the court finds the person possessed a firearm (as defined in
IC 35-47-1-5) at the time of the offense, or the person
delivered or intended to deliver to a person under eighteen
(18) years of age at least three (3) years junior to the person
and was on a school bus or within one thousand (1,000) feet
of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(P) dealing in methamphetamine (IC 35-48-4-1.1) if the
court finds the person possessed a firearm (as defined in
IC 35-47-1-5) at the time of the offense, or the person
delivered or intended to deliver the methamphetamine pure
or adulterated to a person under eighteen (18) years of age
at least three (3) years junior to the person and was on a
school bus or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(Q) dealing in a schedule I, II, or III controlled substance (IC
35-48-4-2) if the court finds the person possessed a firearm
(as defined in IC 35-47-1-5) at the time of the offense, or the
person delivered or intended to deliver to a person under
eighteen (18) years of age at least three (3) years junior to
the person and was on a school bus or within one thousand
(1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center;
(R) an offense under IC 9-30-5 (operating a vehicle while
intoxicated) and the person who committed the offense has
accumulated at least two (2) prior unrelated convictions
under IC 9-30-5;
(S) an offense under IC 9-30-5-5(b) (operating a vehicle
while intoxicated causing death);
(T) aggravated battery (IC 35-42-2-1.5); or
(U) disarming a law enforcement officer (IC 35-44-3-3.5).
(c) Except as provided in subsection (e), whenever the court
suspends a sentence for a felony, it shall place the person on
probation under IC 35-38-2 for a fixed period to end not later than
the date that the maximum sentence that may be imposed for the
felony will expire.
(d) The minimum sentence for a person convicted of voluntary
manslaughter may not be suspended unless the court finds at the
sentencing hearing that the crime was not committed by means of a
deadly weapon.
(e) Whenever the court suspends that part of the sentence of a sex
or violent offender (as defined in IC 11-8-8-5) that is suspendible
under subsection (b), the court shall place the sex or violent offender
on probation under IC 35-38-2 for not more than ten (10) years.
(f) An additional term of imprisonment imposed under
IC 35-50-2-11 may not be suspended.
(g) A term of imprisonment imposed under IC 35-47-10-6 or
IC 35-47-10-7 may not be suspended if the commission of the
offense was knowing or intentional.
(h) A term of imprisonment imposed for an offense under
IC 35-48-4-6(b)(1)(B) or IC 35-48-4-6.1(b)(1)(B) may not be
suspended.
(i) If a person is:
(1) convicted of child molesting (IC 35-42-4-3) as a Class A
felony against a victim less than twelve (12) years of age; and
(2) at least twenty-one (21) years of age;
the court may suspend only that part of the sentence that is in excess
of thirty (30) years.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.115; Acts 1979, P.L.305, SEC.1; Acts 1982, P.L.204,
SEC.39; P.L.334-1983, SEC.2; P.L.284-1985, SEC.3; P.L.211-1986,
SEC.1; P.L.98-1988, SEC.9; P.L.351-1989(ss), SEC.4;
P.L.214-1991, SEC.2; P.L.240-1991(ss2), SEC.98; P.L.11-1994,
SEC.17; P.L.203-1996, SEC.8; P.L.96-1996, SEC.7; P.L.220-1997,
SEC.1; P.L.188-1999, SEC.8; P.L.17-2001, SEC.30; P.L.222-2001,
SEC.6; P.L.238-2001, SEC.21; P.L.116-2002, SEC.25;
P.L.224-2003, SEC.126; P.L.85-2004, SEC.11; P.L.213-2005,
SEC.7; P.L.151-2006, SEC.28; P.L.140-2006, SEC.36 and
P.L.173-2006, SEC.36; P.L.1-2007, SEC.236; P.L.216-2007,
SEC.50; P.L.64-2008, SEC.2.
IC 35-50-2-2.1
Suspension; persons with juvenile record
Sec. 2.1. (a) Except as provided in subsection (b) or section 2 of
this chapter, the court may not suspend a sentence for a felony for a
person with a juvenile record when:
(1) the juvenile record includes findings that the juvenile acts,
if committed by an adult, would constitute:
(A) one (1) Class A or Class B felony;
(B) two (2) Class C or Class D felonies; or
(C) one (1) Class C and one (1) Class D felony; and
(2) less than three (3) years have elapsed between commission
of the juvenile acts that would be felonies if committed by an
adult and the commission of the felony for which the person is
being sentenced.
(b) Notwithstanding subsection (a), the court may suspend any
part of the sentence for a felony, except as provided in section 2 of
this chapter, if it finds that:
(1) the crime was the result of circumstances unlikely to recur;
(2) the victim of the crime induced or facilitated the offense;
(3) there are substantial grounds tending to excuse or justify the
crime, though failing to establish a defense; or
(4) the acts in the juvenile record would not be Class A or Class
B felonies if committed by an adult, and the convicted person
is to undergo home detention under IC 35-38-1-21 instead of the
minimum sentence specified for the crime under this chapter.
As added by P.L.284-1985, SEC.4. Amended by P.L.331-1987,
SEC.1; P.L.98-1988, SEC.10.
IC 35-50-2-3
Murder
Sec. 3. (a) A person who commits murder shall be imprisoned for
a fixed term of between forty-five (45) and sixty-five (65) years, with
the advisory sentence being fifty-five (55) years. In addition, the
person may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), a person who was:
(1) at least eighteen (18) years of age at the time the murder was
committed may be sentenced to:
(A) death; or
(B) life imprisonment without parole; and
(2) at least sixteen (16) years of age but less than eighteen (18)
years of age at the time the murder was committed may be
sentenced to life imprisonment without parole;
under section 9 of this chapter unless a court determines under
IC 35-36-9 that the person is an individual with mental retardation.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.116; P.L.332-1987, SEC.1; P.L.250-1993, SEC.1;
P.L.164-1994, SEC.2; P.L.158-1994, SEC.5; P.L.2-1995, SEC.128;
P.L.148-1995, SEC.4; P.L.117-2002, SEC.1; P.L.71-2005, SEC.6;
P.L.99-2007, SEC.212.
IC 35-50-2-4
Class A felony
Sec. 4. A person who commits a Class A felony shall be
imprisoned for a fixed term of between twenty (20) and fifty (50)
years, with the advisory sentence being thirty (30) years. In addition,
the person may be fined not more than ten thousand dollars
($10,000).
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.117; P.L.164-1994, SEC.3; P.L.148-1995, SEC.5;
P.L.71-2005, SEC.7.
IC 35-50-2-5
Class B felony
Sec. 5. A person who commits a Class B felony shall be
imprisoned for a fixed term of between six (6) and twenty (20) years,
with the advisory sentence being ten (10) years. In addition, the
person may be fined not more than ten thousand dollars ($10,000).
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.118; P.L.71-2005, SEC.8.
IC 35-50-2-6
Class C felony; commission of nonsupport of child as Class D
felony
Sec. 6. (a) A person who commits a Class C felony shall be
imprisoned for a fixed term of between two (2) and eight (8) years,
with the advisory sentence being four (4) years. In addition, the
person may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed
nonsupport of a child as a Class C felony under IC 35-46-1-5, upon
motion of the prosecuting attorney, the court may enter judgment of
conviction of a Class D felony under IC 35-46-1-5 and sentence the
person accordingly. The court shall enter in the record detailed
reasons for the court's action when the court enters a judgment of
conviction of a Class D felony under this subsection.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.119; P.L.167-1990, SEC.1; P.L.213-1996, SEC.5;
P.L.71-2005, SEC.9.
IC 35-50-2-7
Class D felony
Sec. 7. (a) A person who commits a Class D felony shall be
imprisoned for a fixed term of between six (6) months and three (3)
years, with the advisory sentence being one and one-half (1 1/2)
years. In addition, the person may be fined not more than ten
thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed a
Class D felony, the court may enter judgment of conviction of a
Class A misdemeanor and sentence accordingly. However, the court
shall enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for
which judgment was entered as a conviction of a Class A
misdemeanor; and
(B) the prior felony was committed less than three (3) years
before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under
IC 35-42-2-1.3; or
(3) the offense is possession of child pornography (IC
35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action
whenever it exercises the power to enter judgment of conviction of
a Class A misdemeanor granted in this subsection.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.120; Acts 1982, P.L.204, SEC.40; P.L.334-1983,
SEC.3; P.L.136-1987, SEC.7; P.L.167-1990, SEC.2; P.L.188-1999,
SEC.9; P.L.98-2003, SEC.3; P.L.71-2005, SEC.10.
IC 35-50-2-7.1
Repealed
(Repealed by P.L.164-1993, SEC.14.)
IC 35-50-2-8
Habitual offenders
Sec. 8. (a) Except as otherwise provided in this section, the state
may seek to have a person sentenced as a habitual offender for any
felony by alleging, on a page separate from the rest of the charging
instrument, that the person has accumulated two (2) prior unrelated
felony convictions.
(b) The state may not seek to have a person sentenced as a
habitual offender for a felony offense under this section if:
(1) the offense is a misdemeanor that is enhanced to a felony in
the same proceeding as the habitual offender proceeding solely
because the person had a prior unrelated conviction;
(2) the offense is an offense under IC 9-30-10-16 or
IC 9-30-10-17; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or
IC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this
chapter.
(C) The total number of unrelated convictions that the
person has for:
(i) dealing in or selling a legend drug under
IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC
35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC
35-48-4-4);
does not exceed one (1).
(c) A person has accumulated two (2) prior unrelated felony
convictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was committed
after sentencing for the first prior unrelated felony conviction;
and
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after
sentencing for the second prior unrelated felony conviction.
(d) A conviction does not count for purposes of this section as a
prior unrelated felony conviction if:
(1) the conviction has been set aside;
(2) the conviction is one for which the person has been
pardoned; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or
IC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this
chapter.
(C) The total number of unrelated convictions that the
person has for:
(i) dealing in or selling a legend drug under
IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC
35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC
35-48-4-4);
does not exceed one (1).
(e) The requirements in subsection (b) do not apply to a prior
unrelated felony conviction that is used to support a sentence as a
habitual offender. A prior unrelated felony conviction may be used
under this section to support a sentence as a habitual offender even
if the sentence for the prior unrelated offense was enhanced for any
reason, including an enhancement because the person had been
convicted of another offense. However, a prior unrelated felony
conviction under IC 9-30-10-16, IC 9-30-10-17, IC 9-12-3-1
(repealed), or IC 9-12-3-2 (repealed) may not be used to support a
sentence as a habitual offender.
(f) If the person was convicted of the felony in a jury trial, the jury
shall reconvene for the sentencing hearing. If the trial was to the
court or the judgment was entered on a guilty plea, the court alone
shall conduct the sentencing hearing under IC 35-38-1-3.
(g) A person is a habitual offender if the jury (if the hearing is by
jury) or the court (if the hearing is to the court alone) finds that the
state has proved beyond a reasonable doubt that the person had
accumulated two (2) prior unrelated felony convictions.
(h) The court shall sentence a person found to be a habitual
offender to an additional fixed term that is not less than the advisory
sentence for the underlying offense nor more than three (3) times the
advisory sentence for the underlying offense. However, the
additional sentence may not exceed thirty (30) years.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983, SEC.1;
P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993, SEC.13;
P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001, SEC.3;
P.L.291-2001, SEC.226; P.L.71-2005, SEC.11.
IC 35-50-2-8.5
Life imprisonment without parole upon third felony conviction or
second sex offense against a child
Sec. 8.5. (a) The state may seek to have a person sentenced to life
imprisonment without parole for any felony described in section
2(b)(4) of this chapter by alleging, on a page separate from the rest
of the charging instrument, that the person has accumulated two (2)
prior unrelated felony convictions described in section 2(b)(4) of this
chapter.
(b) The state may seek to have a person sentenced to life
imprisonment without parole for a Class A felony under IC 35-42-4
that is a sex offense against a child by alleging, on a page separate
from the rest of the charging instrument, that the person has a prior
unrelated Class A felony conviction under IC 35-42-4 that is a sex
offense against a child.
(c) If the person was convicted of the felony in a jury trial, the
jury shall reconvene to hear evidence on the life imprisonment
without parole allegation. If the person was convicted of the felony
by trial to the court without a jury or if the judgment was entered to
guilty plea, the court alone shall hear evidence on the life
imprisonment without parole allegation.
(d) A person is subject to life imprisonment without parole if the
jury (in a case tried by a jury) or the court (in a case tried by the
court or on a judgment entered on a guilty plea) finds that the state
has proved beyond a reasonable doubt that the person:
(1) has accumulated two (2) prior unrelated convictions for
offenses described in section 2(b)(4) of this chapter; or
(2) has a prior unrelated Class A felony conviction under
IC 35-42-4 that is a sex offense against a child.
(e) The court may sentence a person found to be subject to life
imprisonment without parole under this section to life imprisonment
without parole.
As added by P.L.158-1994, SEC.6. Amended by P.L.53-2005, SEC.2.
IC 35-50-2-9
Death penalty sentencing procedure
Sec. 9. (a) The state may seek either a death sentence or a
sentence of life imprisonment without parole for murder by alleging,
on a page separate from the rest of the charging instrument, the
existence of at least one (1) of the aggravating circumstances listed
in subsection (b). In the sentencing hearing after a person is
convicted of murder, the state must prove beyond a reasonable doubt
the existence of at least one (1) of the aggravating circumstances
alleged. However, the state may not proceed against a defendant
under this section if a court determines at a pretrial hearing under
IC 35-36-9 that the defendant is an individual with mental
retardation.
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing
the victim while committing or attempting to commit any of the
following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful
detonation of an explosive with intent to injure person or
damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another
person to kill.
(6) 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.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time,
regardless of whether the defendant has been convicted of that
other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for the
commission of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant burned, mutilated, or tortured the victim
while the victim was alive.
(12) The victim of the murder was less than twelve (12) years
of age.
(13) The victim was a victim of any of the following offenses
for which the defendant was convicted:
(A) Battery as a Class D felony or as a Class C felony under
IC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The 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.
(15) The defendant committed the murder by intentionally
discharging a firearm (as defined in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murder
resulted in the intentional killing of a fetus that has attained
viability (as defined in IC 16-18-2-365).
(c) The mitigating circumstances that may be considered under
this section are as follows:
(1) The defendant has no significant history of prior criminal
conduct.
(2) The defendant was under the influence of extreme mental or
emotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to the
defendant's conduct.
(4) The defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
minor.
(5) The defendant acted under the substantial domination of
another person.
(6) The defendant's capacity to appreciate the criminality of the
defendant's conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of
mental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at
the time the murder was committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder in a jury trial, the
jury shall reconvene for the sentencing hearing. If the trial was to the
court, or the judgment was entered on a guilty plea, the court alone
shall conduct the sentencing hearing. The jury or the court may
consider all the evidence introduced at the trial stage of the
proceedings, together with new evidence presented at the sentencing
hearing. The court shall instruct the jury concerning the statutory
penalties for murder and any other offenses for which the defendant
was convicted, the potential for consecutive or concurrent
sentencing, and the availability of good time credit and clemency.
The court shall instruct the jury that, in order for the jury to
recommend to the court that the death penalty or life imprisonment
without parole should be imposed, the jury must find at least one (1)
aggravating circumstance beyond a reasonable doubt as described in
subsection (l) and shall provide a special verdict form for each
aggravating circumstance alleged. The defendant may present any
additional evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, except as
provided by IC 35-36-9, if the hearing is by jury, the jury shall
recommend to the court whether the death penalty or life
imprisonment without parole, or neither, should be imposed. The
jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury
reaches a sentencing recommendation, the court shall sentence the
defendant accordingly. After a court pronounces sentence, a
representative of the victim's family and friends may present a
statement regarding the impact of the crime on family and friends.
The impact statement may be submitted in writing or given orally by
the representative. The statement shall be given in the presence of the
defendant.
(f) If a jury is unable to agree on a sentence recommendation after
reasonable deliberations, the court shall discharge the jury and
proceed as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided by
IC 35-36-9, the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
(h) If a court sentences a defendant to death, the court shall order
the defendant's execution to be carried out not later than one (1) year
and one (1) day after the date the defendant was convicted. The
supreme court has exclusive jurisdiction to stay the execution of a
death sentence. If the supreme court stays the execution of a death
sentence, the supreme court shall order a new date for the defendant's
execution.
(i) If a person sentenced to death by a court files a petition for
post-conviction relief, the court, not later than ninety (90) days after
the date the petition is filed, shall set a date to hold a hearing to
consider the petition. If a court does not, within the ninety (90) day
period, set the date to hold the hearing to consider the petition, the
court's failure to set the hearing date is not a basis for additional
post-conviction relief. The attorney general shall answer the petition
for post-conviction relief on behalf of the state. At the request of the
attorney general, a prosecuting attorney shall assist the attorney
general. The court shall enter written findings of fact and conclusions
of law concerning the petition not later than ninety (90) days after the
date the hearing concludes. However, if the court determines that the
petition is without merit, the court may dismiss the petition within
ninety (90) days without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supreme
court. The review, which shall be heard under rules adopted by the
supreme court, shall be given priority over all other cases. The
supreme court's review must take into consideration all claims that
the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a
sentence; and
(3) sentence:
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the
sentencing court for the defendant's execution under subsection (h),
the supreme court shall stay the execution of the death sentence and
set a new date to carry out the defendant's execution.
(k) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file a
written petition with the supreme court seeking to present new
evidence challenging the person's guilt or the appropriateness of the
death sentence if the person serves notice on the attorney general.
The supreme court shall determine, with or without a hearing,
whether the person has presented previously undiscovered evidence
that undermines confidence in the conviction or the death sentence.
If necessary, the supreme court may remand the case to the trial court
for an evidentiary hearing to consider the new evidence and its effect
on the person's conviction and death sentence. The supreme court
may not make a determination in the person's favor nor make a
decision to remand the case to the trial court for an evidentiary
hearing without first providing the attorney general with an
opportunity to be heard on the matter.
(l) Before a sentence may be imposed under this section, the jury,
in a proceeding under subsection (e), or the court, in a proceeding
under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least
one (1) of the aggravating circumstances listed in subsection (b)
exists; and
(2) any mitigating circumstances that exist are outweighed by
the aggravating circumstance or circumstances.
As added by Acts 1977, P.L.340, SEC.122. Amended by
P.L.336-1983, SEC.1; P.L.212-1986, SEC.1; P.L.332-1987, SEC.2;
P.L.320-1987, SEC.2; P.L.296-1989, SEC.2; P.L.138-1989, SEC.6;
P.L.1-1990, SEC.354; P.L.230-1993, SEC.5; P.L.250-1993, SEC.2;
P.L.158-1994, SEC.7; P.L.306-1995, SEC.1; P.L.228-1996, SEC.1;
P.L.216-1996, SEC.25; P.L.261-1997, SEC.7; P.L.80-2002, SEC.1;
P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1;
P.L.1-2006, SEC.550; P.L.99-2007, SEC.213.
IC 35-50-2-10
Habitual substance offenders
Sec. 10. (a) As used in this section:
(1) "Drug" means a drug or a controlled substance (as defined
in IC 35-48-1).
(2) "Substance offense" means a Class A misdemeanor or a
felony in which the possession, use, abuse, delivery,
transportation, or manufacture of alcohol or drugs is a material
element of the crime. The term includes an offense under
IC 9-30-5 and an offense under IC 9-11-2 (before its repeal).
(b) The state may seek to have a person sentenced as a habitual
substance offender for any substance offense by alleging, on a page
separate from the rest of the charging instrument, that the person has
accumulated two (2) prior unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for a
substance offense committed after sentencing for a prior unrelated
substance offense conviction, the person has accumulated two (2)
prior unrelated substance offense convictions. However, a conviction
does not count for purposes of this subsection if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the substance offense in a jury
trial, the jury shall reconvene for the sentencing hearing. If the trial
was to the court, or the judgment was entered on a guilty plea, the
court alone shall conduct the sentencing hearing, under IC 35-38-1-3.
(e) A person is a habitual substance offender if the jury (if the
hearing is by jury) or the court (if the hearing is to the court alone)
finds that the state has proved beyond a reasonable doubt that the
person had accumulated two (2) prior unrelated substance offense
convictions.
(f) The court shall sentence a person found to be a habitual
substance offender to an additional fixed term of at least three (3)
years but not more than eight (8) years imprisonment, to be added to
the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.
If the court finds that:
(1) three (3) years or more have elapsed since the date the
person was discharged from probation, imprisonment, or parole
(whichever is later) for the last prior unrelated substance
offense conviction and the date the person committed the
substance offense for which the person is being sentenced as a
habitual substance offender; or
(2) all of the substance offenses for which the person has been
convicted are substance offenses under IC 16-42-19 or
IC 35-48-4, the person has not been convicted of a substance
offense listed in section 2(b)(4) of this chapter, and the total
number of convictions that the person has for:
(A) dealing in or selling a legend drug under
IC 16-42-19-27;
(B) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(C) dealing in a schedule I, II, or III controlled substance (IC
35-48-4-2);
(D) dealing in a schedule IV controlled substance (IC
35-48-4-3); and
(E) dealing in a schedule V controlled substance (IC
35-48-4-4);
does not exceed one (1);
then the court may reduce the additional fixed term. However, the
court may not reduce the additional fixed term to less than one (1)
year.
(g) If a reduction of the additional year fixed term is authorized
under subsection (f), the court may also consider the aggravating or
circumstances in IC 35-38-1-7.1(a) and the mitigating circumstances
in IC 35-38-1-7.1(b) to:
(1) decide the issue of granting a reduction; or
(2) determine the number of years, if any, to be subtracted
under subsection (f).
As added by P.L.335-1983, SEC.2. Amended by P.L.327-1985,
SEC.5; P.L.98-1988, SEC.11; P.L.1-1990, SEC.355; P.L.96-1996,
SEC.8; P.L.97-1996, SEC.5; P.L.2-1997, SEC.77; P.L.291-2001,
SEC.227; P.L.71-2005, SEC.12; P.L.213-2005, SEC.5; P.L.1-2006,
SEC.551.
IC 35-50-2-11
Firearm used in commission of offense; separate charge; additional
sentence
Sec. 11. (a) As used in this section, "firearm" has the meaning set
forth in IC 35-47-1-5.
(b) As used in this section, "offense" means:
(1) a felony under IC 35-42 that resulted in death or serious
bodily injury;
(2) kidnapping; or
(3) criminal confinement as a Class B felony.
(c) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed an
offense sentenced to an additional fixed term of imprisonment if the
state can show beyond a reasonable doubt that the person knowingly
or intentionally used a firearm in the commission of the offense.
(d) If the person was convicted of the offense in a jury trial, the
jury shall reconvene to hear evidence in the enhancement hearing. If
the trial was to the court, or the judgment was entered on a guilty
plea, the court alone shall hear evidence in the enhancement hearing.
(e) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally used a
firearm in the commission of the offense, the court may sentence the
person to an additional fixed term of imprisonment of five (5) years.
As added by P.L.140-1994, SEC.15. Amended by P.L.203-1996,
SEC.9; P.L.71-2005, SEC.13.
IC 35-50-2-12
Characteristics of incarcerated offenders; publication of findings
Sec. 12. The Indiana criminal justice institute shall review
characteristics of offenders committed to the department of
correction over such period of time it deems appropriate and of the
offenses committed by those offenders in order to ascertain norms
used by the trial courts in sentencing. The Indiana criminal justice
institute shall from time to time publish its findings in the Indiana
Register and provide its findings to the legislative services agency
and the judicial conference of Indiana.
As added by P.L.164-1994, SEC.4.
IC 35-50-2-13
Use of firearms in controlled substance offenses under IC 35-48-4-1
through IC 35-48-4-4
Sec. 13. (a) The state may seek, on a page separate from the rest
of a charging instrument, to have a person who allegedly committed
an offense of dealing in a controlled substance under IC 35-48-4-1
through IC 35-48-4-4 sentenced to an additional fixed term of
imprisonment if the state can show beyond a reasonable doubt that
the person knowingly or intentionally:
(1) used a firearm; or
(2) possessed a:
(A) handgun in violation of IC 35-47-2-1;
(B) sawed-off shotgun in violation of IC 35-47-5-4.1; or
(C) machine gun in violation of IC 35-47-5-8;
while committing the offense.
(b) If the person was convicted of the offense in a jury trial, the
jury shall reconvene to hear evidence in the enhancement hearing. If
the trial was to the court, or the judgment was entered on a guilty
plea, the court alone shall hear evidence in the enhancement hearing.
(c) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally
committed an offense as described in subsection (a), the court may
sentence the person to an additional fixed term of imprisonment of
not more than five (5) years, except as follows:
(1) If the firearm is a sawed-off shotgun, the court may sentence
the person to an additional fixed term of imprisonment of not
more than ten (10) years.
(2) If the firearm is a machine gun or is equipped with a firearm
silencer or firearm muffler, the court may sentence the person
to an additional fixed term of imprisonment of not more than
twenty (20) years. The additional sentence under this
subdivision is in addition to any additional sentence imposed
under section 11 of this chapter for use of a firearm in the
commission of an offense.
As added by P.L.148-1995, SEC.6. Amended by P.L.71-2005,
SEC.14.
IC 35-50-2-14
Repeat sexual offender
Sec. 14. (a) As used in this section, "sex offense" means a felony
conviction:
(1) under IC 35-42-4-1 through IC 35-42-4-9 or under
IC 35-46-1-3;
(2) for an attempt or conspiracy to commit an offense described
in subdivision (1); or
(3) for an offense under the laws of another jurisdiction,
including a military court, that is substantially similar to an
offense described in subdivision (1).
(b) The state may seek to have a person sentenced as a repeat
sexual offender for a sex offense described in subsection (a)(1) or
(a)(2) by alleging, on a page separate from the rest of the charging
instrument, that the person has accumulated one (1) prior unrelated
felony conviction for a sex offense described in subsection (a).
(c) After a person has been convicted and sentenced for a felony
described in subsection (a)(1) or (a)(2) after having been sentenced
for a prior unrelated sex offense described in subsection (a), the
person has accumulated one (1) prior unrelated felony sex offense
conviction. However, a conviction does not count for purposes of
this subsection, if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the sex offense in a jury trial,
the jury shall reconvene to hear evidence in the enhancement
hearing. If the trial was to the court, or the judgment was entered on
a guilty plea, the court alone shall hear evidence in the enhancement
hearing.
(e) A person is a repeat sexual offender if the jury (if the hearing
is by jury) or the court (if the hearing is to the court alone) finds that
the state has proved beyond a reasonable doubt that the person had
accumulated one (1) prior unrelated felony sex offense conviction.
(f) The court may sentence a person found to be a repeat sexual
offender to an additional fixed term that is the advisory sentence for
the underlying offense. However, the additional sentence may not
exceed ten (10) years.
As added by P.L.214-1999, SEC.4. Amended by P.L.71-2005,
SEC.15; P.L.6-2006, SEC.9, P.L.140-2006, SEC.37, and
P.L.173-2006, SEC.37; P.L.125-2009, SEC.8.
IC 35-50-2-15
Criminal gang enhancement
Sec. 15. (a) This section does not apply to an individual who is
convicted of a felony offense under IC 35-45-9-3.
(b) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed a
felony offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally:
(1) was a member of a criminal gang while committing the
offense; and
(2) committed the felony offense at the direction of or in
affiliation with a criminal gang.
(c) If the person is convicted of the felony offense in a jury trial,
the jury shall reconvene to hear evidence in the enhancement
hearing. If the trial was to the court, or the judgment was entered on
a guilty plea, the court alone shall hear evidence in the enhancement
hearing.
(d) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally was a
member of a criminal gang while committing the felony offense and
committed the felony offense at the direction of or in affiliation with
a criminal gang as described in subsection (b), the court shall:
(1) sentence the person to an additional fixed term of
imprisonment equal to the sentence imposed for the underlying
felony, if the person is sentenced for only one (1) felony; or
(2) sentence the person to an additional fixed term of
imprisonment equal to the longest sentence imposed for the
underlying felonies, if the person is being sentenced for more
than one (1) felony.
(e) A sentence imposed under this section shall run consecutively
to the underlying sentence.
(f) A term of imprisonment imposed under this section may not be
suspended.
(g) For purposes of subsection (c), evidence that a person was a
member of a criminal gang or committed a felony at the direction of
or in affiliation with a criminal gang may include expert testimony
pursuant to the Indiana Rules of Evidence that may be admitted to
prove that particular conduct, status, and customs are indicative of
criminal gang activity. The expert testimony may include the
following:
(1) Characteristics of persons who are members of criminal
gangs.
(2) Descriptions of rivalries between criminal gangs.
(3) Common practices and operations of criminal gangs.
(4) Behavior of criminal gangs.
(5) Terminology used by members of criminal gangs.
(6) Codes of conduct, including criminal conduct, of particular
criminal gangs.
(7) Types of crimes that are likely to be committed by a
particular criminal gang.
As added by P.L.109-2006, SEC.3.
IC 35-50-2-16
Termination of a human pregnancy; enhancement
Sec. 16. (a) The state may seek, on a page separate from the rest
of the charging instrument, to have a person who allegedly
committed or attempted to commit murder under IC 35-42-1-1(1) or
IC 35-42-1-1(2) sentenced to an additional fixed term of
imprisonment if the state can show beyond a reasonable doubt that
the person, while committing or attempting to commit murder under
IC 35-42-1-1(1) or IC 35-42-1-1(2), caused the termination of a
human pregnancy.
(b) If the person is convicted of the murder or attempted murder
in a jury trial, the jury shall reconvene to hear evidence in the
enhancement hearing. If the trial was to the court, or the judgment
was entered on a guilty plea, the court alone shall hear evidence in
the enhancement hearing.
(c) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person, while committing or attempting to
commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2), caused the
termination of a human pregnancy, the court shall sentence the
person to an additional fixed term of imprisonment of not less than
six (6) or more than twenty (20) years.
(d) A sentence imposed under this section runs consecutively to
the underlying sentence.
(e) For purposes of this section, prosecution of the murder or
attempted murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) and the
enhancement of the penalty for that crime does not require proof
that:
(1) the person committing or attempting to commit the murder
had knowledg