OTHER 2014 LEGISLATIVE CHANGES--SENTENCE MODIFICATION AND PRETRIAL DIVISION

The General Assembly also made it easier to modify a person’s sentence.  Effective  July 1, 2014, the judge may reduce or suspend a person’s sentence and impose any sentence the court was authorized to impose at the time of sentencing.  The prosecutor’s consent is no longer required.  A hearing on the sentence modification petition is likewise no longer required, but if the judge sets a hearing on the petition, he or she must give notice to the prosecutor and the prosecutor must give notice to the victim.  The terms of the convicted person’s plea agreement control any subsequent sentence modification.  In other words, whatever the judge had the discretion to do at sentencing limits the judge’s later modification authority.  Even if the plea agreement has a sentencing cap or range, the judge still has discretion in determining what sentence to impose and can modify it later.  Only “closed” plea agreements calling for a specific term of executed years (with no discretion as to placement) will be ineligible for subsequent sentence modification.  The 2014 amendment limits the filing of petitions to modify a sentence to one per year and no more than two during the person’s sentence.  Finally, a person may not waive the right to seek sentence modification in his or her plea agreement.  The amended statute says that any purported waiver “is invalid and unenforceable as against public policy.”

The Legislature also expanded Indiana’s pretrial diversion statute to allow prosecutors to withhold prosecution against an accused person charged with a misdemeanor, or a Level 5 or 6 felony. The other statutory exclusions and requirements remain unchanged, and prosecutors have discretion regarding which offenses they will offer diversion. There is no protected liberty interest in remaining in a pretrial diversion program.  A person is not entitled to a due process hearing prior to termination from the program. However, if the person “admits” to the charged offense and enters into a plea agreement calling for a withheld judgment or deferred sentence, he is entitled to the same due process rights afforded to defendants in other contexts-- for example probation revocation proceedings where there is a right to hearing, confrontation and cross-examination of witnesses.