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COVID-19 and Sentence Modification

Loved one incarcerated? I’ve gotten several inquiries from both existing and potential clients about sentence modifications and related issues. How does it work? Can an inmate be released because of the health risks from the COVID-19 virus? Currently, there is no special law or emergency court authority applicable to sentence modifications which means that legally they work just the same now as they did before the virus hit. All the same, COVID-19 and the risks that come with it are part of the new reality that both prisons and courts have to face. While COVID-19, in and of itself, is not likely to be a “get out of jail free card,” it makes sense to think about sentence modification as courts and prisons re-evaluate their resources and practices along with the rest of us.

“Sentence modification is a strategy and process that requires a solid game plan rather than simply filing a pro-se petition and hoping for the best.”

Success in a sentence modification comes from managing information and effectively presenting a full picture of the client’s progress in rehabilitation. That strategy, in my view, must not just include the basics like institutional behavior, but must also look a few steps ahead by building a solid foundation on the outside in terms of support structure, a job, a residence, continued rehabilitation, etc. Whether it be in asking a prosecutor for consent or asking a judge to modify a sentence over a prosecutor’s objection, at the end of the day the client is asking someone to take a gamble. Convincing someone like a judge or prosecutor to take a gamble means having a comprehensive strategy which makes the most of what we have to minimize the risk we are asking them to take.

“This is one of those areas that is much less about complexities in the law or sharp courtroom skills and more about effective presentation of the client and negotiation skills.

While this article is meant as a general overview of how the law in this area works, I can’t stress enough that sentence modifications are very, very, (do I need one more very in there?) case specific. Many inmates file petitions to modify their sentences on their own and find them denied (often without a hearing) the majority of the time. Modification requests are also generally limited to 1 every 365 days and a no more than 2 total for any period of incarceration; you therefore need to make the most of them. For those reasons I strongly advise anyone looking into a sentence modification to obtain a qualified and effective attorney. Having practiced both as a prosecutor and defense attorney in sentence modifications, I would offer that you to keep the following considerations in mind when choosing an attorney: This is one of those areas that is much less about complexities in the law or sharp courtroom skills and more about effective presentation of the client and negotiation skills. Hands down, the best chance of a successful sentence modification comes from an agreement with the prosecutor. Many clients find themselves by law requiring consent from the prosecutor anyway as explained below. Even where consent is not required, it is common sense that any judge ruling on a sentence modification is going to take the prosecutor’s objection very seriously. Effectively negotiating with anyone, prosecutor or judge, means knowing what the other side is interested in, what they are likely to respond to, and how to put your best foot forward “in their language.” Nothing except experience can teach the finer points of this. I’ve spent nearly 11 years as a prosecutor and handled all sentence modification requests filed in the major felony drug division of Marion County Superior Court for about 2 of those years. Feel free to read more about my Practice and Approach.

The law in Indiana on sentence modification is actually pretty straight forward; it says that a court can modify a sentence, without the consent of the prosecutor, to any sentence it could have imposed at the original sentencing.

So, sentence modification law in Indiana. The law in Indiana on sentence modification is actually pretty straight forward; it says that a court can modify a sentence, without the consent of the prosecutor, to any sentence it could have imposed at the original sentencing. You can find it at I.C. 35-38-1-17. Let’s break that down a little. First, if the prosecutor agrees then the sentence can be modified to any sentence that the law allows for the class/level of the conviction. For example, let’s say that you have been convicted of a Level 6 felony which carries a sentencing range of 6 months to 2.5 years. You sign a plea agreement that calls for 2 years to be served in prison (maybe your record isn’t so good and part of the agreement is that prosecutor won’t file the habitual offender enhancement). What are the options for a sentence modification? Well, if the prosecutor agrees to it then the sentence can be modified to any legal sentence for a Level 6 felony. Note that it still must be a legal sentence which means that if the minimum part of your sentence was “non-suspendable” for whatever reason then the modified sentence will also still have to include the minimum required non-suspended time. It also means that even an agreed sentence modification can still not be anything less than 6 months because that is the statutory minimum sentence for a Level 6 felony.

If the prosecutor won’t agree to a modification, then we look at the specifics of the case to see whether the Court can modify the sentence without the prosecutor’s consent using the law above as our test.

So, what if the prosecutor won’t agree to a modification? If the prosecutor won’t agree to a modification, then we look at the specifics of the case to see whether the Court can modify the sentence without the prosecutor’s consent using the law above as our test. Let’s continue with our 2 year plea agreement example. If the plea agreement called for 2 years prison without any mention of modification, then the Court cannot modify that sentence without the prosecutor’s consent. Why? Remember the law! The judge can only modify a sentence to something the judge had legal authority to do in the first place. The 2 year plea agreement made sure that the ONLY sentence the judge could impose at the time of the original sentencing was the 2 years in prison; no more and no less. Thus, applying the law, that 2 years in prison is the only sentence the judge could impose at a modification because that is all the judge could have done at the original sentence to begin with. This is what is known as a “set term” plea agreement where all of the terms are “set” or spelled out as opposed to giving the judge discretion in some way to decide part of the sentence on her own. More on that below. Set term plea agreements are far and away the most common type of plea agreement, especially in misdemeanor and lower level felony cases.

Compare a set-term plea agreement with, say, a sentence imposed without a plea agreement. Let’s say you went to trial and were convicted of a Level 6 felony. Same sentencing range as before of 6 months to 2.5 years. Now, the judge could have originally sentenced you to any legal sentence between 6 months – 2.5 years to include jail, probation, home detention, etc. Because the judge could have imposed ANY legal sentence for a L6 felony at the original sentencing (probation, work release, etc.), the judge can also modify that sentence without the prosecutor’s consent to ANY legal sentence for an L6.

The number of times that an incarcerated person can file are generally limited to 1 every 365 days and a no more than 2 total for any period of incarceration so modification petitions should be used wisely.

A few other notes on sentence modification. First, the number of times that an incarcerated person can file are generally limited to 1 every 365 days and a no more than 2 total for any period of incarceration so modification petitions should be used wisely. Filing a mod request six months into a 10 year sentence and having been written up in the DOC twice already, for example, would be ill advised as it would likely end up in a wasted mod attempt. It would also reset the clock to 365 days before your next and final attempt at a mod absent consent of the prosecutor. Finally, and just like anything else in the law, there are some special exceptions and gray areas. While this article is meant as a general overview of how the law in this area works, I can’t stress enough that sentence modifications are very, very, (do I need one more very in there?) case specific. Items like criminal history, institutional behavior (good and bad), the wishes of any victims in the crime, and the specifics of the offense can be major considerations either for the prosecutor if we are asking for consent or for the judge even if consent is not required.

More questions? Call today and let us earn your trust. Thank you for reading.

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