FRANKLIN TOWNSHIP, Ind. - Thieves are hitting garage sales and pretending to be bargain hunters. Police have received several reports this past weekend of counterfeiters using fake cash around Franklin Township.
Yard sale season is in full force here in central Indiana! Many neighborhoods and communities have already had or will be having yard sales soon. Spring is also prime time for estate and other types of sales. Unfortunately, some seem to be looking for a bargain much different than something for sale in your driveway. A few quick tips:
- Be wary of anyone making a purchase where they are asking for a substantial amount of change such as paying for a $1 item with a $20.
- Be wary of anyone who doesn’t want to purchase, but only wants change.
- Be wary of anyone wanting to pay with a $50 bill or higher.
- Consider buying a counterfeit detecting marker. They run about $5.
- Each U.S. bill has several security features that are fairly tough to accurately counterfeit, but they are of no use unless you know what they are. For example, did you know that the $20 has color changing ink? Familiarize yourself with the security features. This link shows them all in close detail. https://uscurrency.gov/security/20-security-features-2003-present
- Report any counterfeit money you spot and the counterfeiter to police immediately. Chances are the counterfeiter is working an entire area and the sooner law enforcement knows what is going on the better the odds of capture.
A reminder to all of my Indiana friends that the Primary Election is tomorrow. Indiana has been getting national attention as possibly being the state who decides whether the republicans will have a contested convention. If you want to double check to see where you are registered, see exactly where your polling place is, or check out the ballot, then you can go to the website below. Get out there tomorrow; your vote might just make history!
So you’ve been charged with a crime and the question you keep asking yourself every 10 seconds or so is “what’s going to happen to me if I’m convicted?” While the simplest answer would be to look at the sentencing range for the crime you’ve been charged with in the Indiana Code, there is in fact much more to it. How does a judge actually distill down that range of penalty to a specific sentence? More importantly, how will you actually be serving the sentence (i.e. probation, home detention, prison, etc.)? This entry will seek to answer these questions and shed some light on the processes a sentencing judge uses when fashioning a sentence in a criminal case.
The first step is, of course, to determine what the applicable range of penalties is for an offense. Currently, Indiana law provides for four classes of felony delineated as levels 1 through 4 with 1 being the most severe. There are three classes of misdemeanors, A-C, with A being the most severe. Murder has its own sentencing classification. It is worth noting that prior to July 1, 2014 the classifications for felonies and their sentencing ranges were different. The prior sentencing scheme listed felonies from A-D with A being the most severe. Each of the felony levels for both the current and old code, as well as their penalty ranges, are included in the tables below.
|Level||Penalty Range||Advisory Sentence||Fine Range|
|Murder||45 years – death||55 years||$0 – $10,000|
|Level 1 Felony||20 years – 40 years||30 years||$0 – $10,000|
|Level 2 Felony||10 years – 30 years||17.5 years||$0 – $10,000|
|Level 3 Felony||3 years – 16 years||9 years||$0 – $10,000|
|Level 4 Felony||2 years – 12 years||6 years||$0 – $10,000|
|Level 5 Felony||1 year – 6 years||3 years||$0 – $10,000|
|Level 6 Felony||6 months – 2.5 years||1 year||$0 – $10,000|
|Class A Misdemeanor||0 days – 1 year||n/a||$0 – $5000|
|Class B Misdemeanor||0 days – 180 days||n/a||$0 – $1000|
|Class C misdemeanor||0 days – 60 days||n/a||$0 – $500|
|Level||Penalty Range||Advisory Sentence||Fine Range|
|Murder||45 years – death||55 years||$0 – $10,000|
|Class A Felony||20 years – 50 years||30 years||$0 – $10,000|
|Class B Felony||6 years – 20 years||10 years||$0 – $10,000|
|Class C Felony||2 years – 8 years||4 years||$0 – $10,000|
|Class D Felony||6 months – 3 years||1.5 years||$0 – $10,000|
|Class A Misdemeanor||0 days – 1 year||n/a||$0 – $5,000|
|Class B Misdemeanor||0 days – 180 days||n/a||$0 – $1,000|
|Class C Misdemeanor||0 days – 60 days||n/a||$0 – $500|
Notice that for each classification of offense there is an “advisory sentence.” The advisory sentence is the starting point for determining what the actual sentence for a given offense will be. Under the Indiana Code, a sentencing judge will begin with the advisory sentence. The judge may increase the sentence from the advisory to the maximum for the offense classification based on bad things about the offense or the defendant’s character such as criminal history. A sentence in excess of the advisory sentence is what is known as an “aggravated” sentence. Likewise, a judge may lower the sentence from the advisory down to the minimum for the classification based on good things about the defendant’s character or nature of the offense such as the offense being non-violent. A sentence lower than the advisory sentence is known as a “mitigated” sentence. The judge may consider any number of aggravating and mitigating factors and aggravating and mitigating factors can work to cancel each other out either completely or in part. For example, theft of a very large amount of property (aggravating factor) by a defendant who does not have any prior criminal history (mitigating factor) could result in the advisory sentence; the aggravating and mitigating factors cancelling each other out completely. Misdemeanor sentences do not have an advisory sentence and so the judge can sentence anywhere within the classification range based upon the aggravating and mitigating factors. A list of examples aggravating factors found in the Indiana Code that the judge may consider is below:
(1) The harm, injury, loss, or damage suffered by the victim of an offense was: (A) significant; and(B) greater than the elements necessary to prove the commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
(4) The person: (A) committed a crime of violence (IC 35-50-1-2); and (B) knowingly committed the offense in the presence or within hearing of an individual who:
(i) was less than eighteen (18) years of age at the time the person committed the offense; and (ii) is not the victim of the offense.
(5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.
(6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.
(7) The victim of the offense was: (A) a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability; or
(B) mentally or physically infirm.
(8) The person was in a position having care, custody, or control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
(11) The person: (A) committed trafficking with an inmate under IC 35-44-3-9; and (B) is an employee of the penal facility.
A list of mitigating factors found in the code is as follows:
(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or short term imprisonment.
(8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
The lists above are not exhaustive and the sentencing judge may consider any number of other mitigating or aggravating sentences. Also, it is important to note that while the Indiana Code does not explicitly require a judge to begin with the advisory sentence and deviate up or down based on factors such as those above the common practice for sentencing judges is to do just that.
So, moving on to how a sentence will be served. The first question to be answered is whether the offense is “suspendable.” Suspendable is a term often used by those in the Indiana criminal justice system and it refers to whether the law allows a judge to suspend 100% of the sentence. For example, if one is convicted of a level 6 felony intimidation then the judge can suspend 100 % of the sentence. This means that the defendant can walk away with nothing more than probation and possibly a fine Conversely, “non-suspendable” means that the judge can only suspend anything above the minimum sentence. In other words, at least the minimum sentence allowed for the level of offense must be served as executed time meaning that it must be served either in prison, on work release, on home detention, or, in some counties, on daily reporting. Under Indiana law, if the defendant is convicted of any level 2 or level 3 felony and has a prior felony conviction then the offense is non-suspendable. The only exception is for drug offenses which are suspendable regardless of the level of offense or prior convictions. Murder and level 1 offenses are always non-suspendable regardless of whether the defendant has any prior felony convictions. Misdemeanors are inherently suspendable because the minimum sentence for any misdemeanor is zero days.
Keep in mind that even though an offense may be completely suspendable, that doesn’t by any means guarantee that a judge is going to order a completely suspended sentence. Generally speaking, the decision as to whether to order any executed time, and if so how that time will be served will depend on the same factors listed above in determining how long of a sentence will be imposed.
Lets consider an example to try and put this all together. Defendant has been convicted of robbery while armed with a deadly weapon. Basic facts are that defendant held up a gas station with a gun. Nobody was hurt. Defendant has been previously convicted of domestic battery twice, both as felonies, and has a prior felony theft conviction. Defendant has violated probation in the past. Defendant has three young children. So we begin. This is a level 3 felony. A level 3 felony carries a range of 3 to 16 years with an advisory sentence of 9 years. A prior conviction for a felony means that the offense is non-suspendable so at least 3 years of the sentence must be served as executed time either in prison, work release, home detention, or day reporting. The judge will likely consider the following aggravating factors (1) defendant has a criminal history and this is his fourth felony, (2) defendant has a history of violence, (3) defendant has violated on probation in the past, (4) the offense involved a firearm specifically as the weapon. The judge may also consider as a mitigating factor that a prison sentence will likely work a hardship on the defendant’s family and specifically the children. A possible sentence and reasoning could be that the aggravators outweigh the mitigators and so the sentence will be 12 years. Because of the aggravators and because defendant did not do well on probation in the past, the sentence will be served as 10 years executed to be served in prison and two years suspended. Defendant will serve 2 years of probation upon release from prison.
Speculating about a possible sentence for a crime can be a complex process. Sentences are always driven by the specific facts and circumstances of both the offense and offender. A qualified defense attorney who understands the sentencing process can help you to make an educated choice about how to proceed with your case and it is imperative that you have one. For example, whether an offer for a plea agreement is in your best interest.
There is a bit more to the process such as habitual offenders and additional penalties for specific offenses such as a DUI with prior DUI convictions, but those will be explored on another day.
The love doesn’t have to stop just because Valentine’s Day is over. Through the end of February 2016 the Law Office of James D. Metzger, LLC will be offering discounts to all new, non-IBA referral, clients! New clients will receive either 10% off of flat fee prices or 10% off of all hourly fees up to a maximum discount of $500! A few notes about our fees: I believe that reasonable billing is part of what creates a long lasting and meaningful relationship with a client. Clients who feel that they are receiving a fair and reasonable bill are likely to be happy clients. Happy clients tend to be repeat clients if they find themselves in need of legal services down the road AND happy clients are glad to refer their friends and family to me if they need help. I invite you to have a look through the rest of the website at www.attorneyjamesmetzger.com to get an idea of who I am and what I do. Initial consultations, either in person or by phone, are always free. I look forward to your business.