Introduced Version
HOUSE BILL No. 1296
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 35-50-2.
Synopsis: Habitual offender statutes. Modifies the habitual offender
statutes for certain drug possession offenses.
Effective: July 1, 2010.
Culver, Lawson L
January 13, 2010, read first time and referred to Committee on Public Policy.
Introduced
Second Regular Session 116th General Assembly (2010)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in
this style type, and deletions will appear in
this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 2009 Regular and Special Sessions of the General Assembly.
HOUSE BILL No. 1296
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 35-50-2-8; (10)IN1296.1.1. -->
SECTION 1. IC 35-50-2-8, AS AMENDED BY P.L.71-2005,
SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: 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); or
(4) the total number of unrelated convictions that the person
has for possession of:
(A) cocaine or a narcotic drug under IC 35-48-4-6;
(B) methamphetamine under IC 35-48-4-6.1;
(C) a controlled substance under IC 35-48-4-7;
(D) paraphernalia under IC 35-48-4-8.3;
(E) marijuana, hash oil, or hashish under IC 35-48-4-11;
and
(F) possession of a controlled substance under
IC 35-48-4-14(c);
does not exceed two (2).
(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.
SOURCE: IC 35-50-2-10; (10)IN1296.1.2. -->
SECTION 2. IC 35-50-2-10, AS AMENDED BY P.L.1-2006,
SECTION 551, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: 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 not seek to have a person sentenced as a
habitual substance offender for an offense under this section if the
total number of unrelated convictions that the person has for
possession of:
(1) cocaine or a narcotic drug under IC 35-48-4-6;
(2) methamphetamine under IC 35-48-4-6.1;
(3) a controlled substance under IC 35-48-4-7;
(4) paraphernalia under IC 35-48-4-8.3;
(5) marijuana, hash oil, or hashish under IC 35-48-4-11; and
(6) possession of a controlled substance under
IC 35-48-4-14(c);
does not exceed two (2).
(b) (c) 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.
The state may not seek to have a person sentenced as a habitual
substance offender for the first two (2) convictions a person has for
crimes listed in subsection (b).
(c) (d) 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) (e) 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) (f) 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) (g) 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) (h) If a reduction of the additional year fixed term is authorized
under subsection (f), (g), 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). (g).