Introduced Version




HOUSE BILL No. 1531

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-50-2.

Synopsis: Habitual offenders. Removes language prohibiting the state from seeking to have a person sentenced as a habitual offender and habitual substance offender for certain drug related offenses. Provides procedures for a person to be tried and sentenced as a repeat drug offender. Specifies that a conviction for an attempt to commit or conspiracy to commit certain sex crimes in another jurisdiction may be included for purposes of sentencing a person as a repeat sex offender.

Effective: July 1, 2011.



Foley


    January 20, 2011, read first time and referred to Committee on Courts and Criminal Code.




Introduced

First Regular Session 117th General Assembly (2011)


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 2010 Regular Session of the General Assembly.

HOUSE BILL No. 1531


    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; (11)IN1531.1.1. -->     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, 2011]: 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; or
        (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; or
        (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; (11)IN1531.1.2. -->     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, 2011]: 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).

SOURCE: IC 35-50-2-10.5; (11)IN1531.1.3. -->     SECTION 3. IC 35-50-2-10.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 10.5. (a) As used in this section, "drug offense" means a felony conviction:
        (1) under IC 35-48-4-1 through IC 35-48-4-5, IC 16-42-19-11, IC 16-42-19-20, or IC 16-42-19-25;
        (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) or (2).
    (b) The state may seek to have a person sentenced as a repeat drug offender for a drug 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 drug 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 convicted and sentenced for a prior unrelated drug offense described in subsection (a), the person has accumulated one (1) prior unrelated felony drug 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 a drug offense in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing. If the trial was to the court alone 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 drug 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 drug offense conviction.
    (f) The court may sentence a person found to be a repeat drug 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.
SOURCE: IC 35-50-2-14; (11)IN1531.1.4. -->     SECTION 4. IC 35-50-2-14, AS AMENDED BY P.L.125-2009, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: 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) or (2).
    (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.