Bill Text: IN HB1377 | 2011 | Regular Session | Introduced
Bill Title: Murder sentencing and sentence enhancements.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-01-18 - First reading: referred to Committee on Courts and Criminal Code [HB1377 Detail]
Download: Indiana-2011-HB1377-Introduced.html
Citations Affected: IC 35-50-2.
Synopsis: Murder sentencing and sentence enhancements. Makes
committing a murder in the physical presence of a person who: (1) is
less than 16 years of age; and (2) might be able to see or hear the
murder; an aggravating circumstance that may be considered during the
sentencing hearing for the murder. Allows a court to sentence a person
to an additional fixed term of imprisonment that: (1) is not less than the
advisory sentence for the underlying offense nor more than three times
the advisory sentence for the underlying offense; and (2) does not
exceed 30 years; if the person knowingly or intentionally committed
certain offenses in the physical presence of a person less than 16 years
of age who might be able to see or hear the offense. Allows a court to
sentence a person to an additional fixed term of imprisonment of ten
years if the person knowingly or intentionally violated a protective
order in the commission of certain offenses.
Effective: July 1, 2011.
January 18, 2011, read first time and referred to Committee on Courts and Criminal Code.
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A BILL FOR AN ACT to amend the Indiana Code concerning
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(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure a person or damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another person to kill.
(6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performed while acting in the course of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for the commission of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
(12) The victim of the murder was less than twelve (12) years of age.
(13) The victim was a victim of any of the following offenses for which the defendant was convicted:
(A) Battery as a Class D felony or as a Class C felony under IC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.
(15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
(17) The defendant committed the murder in the physical presence of a person less than sixteen (16) years of age, knowing that the person was present and might be able to see or hear the murder.
(c) The mitigating circumstances that may be considered under this section are as follows:
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to the defendant's conduct.
(4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.
(5) The defendant acted under the substantial domination of another person.
(6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder 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. The jury or the court may consider all
the evidence introduced at the trial stage of the proceedings, together
with new evidence presented at the sentencing hearing. The court shall
instruct the jury concerning the statutory penalties for murder and any
other offenses for which the defendant was convicted, the potential for
consecutive or concurrent sentencing, and the availability of good time
credit and clemency. The court shall instruct the jury that, in order for
the jury to recommend to the court that the death penalty or life
imprisonment without parole should be imposed, the jury must find at
least one (1) aggravating circumstance beyond a reasonable doubt as
described in subsection (l) and shall provide a special verdict form for
each aggravating circumstance alleged. The defendant may present any
additional evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, except as
provided by IC 35-36-9, if the hearing is by jury, the jury shall
recommend to the court whether the death penalty or life imprisonment
without parole, or neither, should be imposed. The jury may
recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury
reaches a sentencing recommendation, the court shall sentence the
defendant accordingly. After a court pronounces sentence, a
representative of the victim's family and friends may present a
statement regarding the impact of the crime on family and friends. The
impact statement may be submitted in writing or given orally by the
representative. The statement shall be given in the presence of the
defendant.
(f) If a jury is unable to agree on a sentence recommendation after
reasonable deliberations, the court shall discharge the jury and proceed
as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided by
IC 35-36-9, the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
(h) If a court sentences a defendant to death, the court shall order
the defendant's execution to be carried out not later than one (1) year
and one (1) day after the date the defendant was convicted. The
supreme court has exclusive jurisdiction to stay the execution of a
death sentence. If the supreme court stays the execution of a death
sentence, the supreme court shall order a new date for the defendant's
execution.
(i) If a person sentenced to death by a court files a petition for
post-conviction relief, the court, not later than ninety (90) days after the
date the petition is filed, shall set a date to hold a hearing to consider
the petition. If a court does not, within the ninety (90) day period, set
the date to hold the hearing to consider the petition, the court's failure
to set the hearing date is not a basis for additional post-conviction
relief. The attorney general shall answer the petition for post-conviction
relief on behalf of the state. At the request of the attorney general, a
prosecuting attorney shall assist the attorney general. The court shall
enter written findings of fact and conclusions of law concerning the
petition not later than ninety (90) days after the date the hearing
concludes. However, if the court determines that the petition is without
merit, the court may dismiss the petition within ninety (90) days
without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supreme
court. The review, which shall be heard under rules adopted by the
supreme court, shall be given priority over all other cases. The supreme
court's review must take into consideration all claims that the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a
sentence; and
(3) sentence:
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the
sentencing court for the defendant's execution under subsection (h), the
supreme court shall stay the execution of the death sentence and set a
new date to carry out the defendant's execution.
(k) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file a written
petition with the supreme court seeking to present new evidence
challenging the person's guilt or the appropriateness of the death
sentence if the person serves notice on the attorney general. The
supreme court shall determine, with or without a hearing, whether the
person has presented previously undiscovered evidence that
undermines confidence in the conviction or the death sentence. If
necessary, the supreme court may remand the case to the trial court for
an evidentiary hearing to consider the new evidence and its effect on
the person's conviction and death sentence. The supreme court may not
make a determination in the person's favor nor make a decision to
remand the case to the trial court for an evidentiary hearing without
first providing the attorney general with an opportunity to be heard on
the matter.
(l) Before a sentence may be imposed under this section, the jury,
in a proceeding under subsection (e), or the court, in a proceeding
under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least
one (1) of the aggravating circumstances listed in subsection (b)
exists; and
(2) any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances.
(1) A felony under IC 35-42 that resulted in death or serious bodily injury.
(2) Kidnapping (IC 35-42-3-2).
(3) Criminal confinement as a Class B felony (IC 35-42-3-3(b)(2)).
(b) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally committed the offense in the physical presence of a person less than sixteen (16) years of age, knowing that the person was present and might be able to see or hear the offense.
(c) If the person was convicted of the 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.
(d) 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 knowingly or intentionally committed the offense in the physical presence of a person less than sixteen (16) years of age, knowing that the person was present and
might be able to see or hear the offense, the court may sentence the
person to an additional fixed term of imprisonment 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.
(1) A felony under IC 35-42 that resulted in death or serious bodily injury.
(2) Kidnapping (IC 35-42-3-2).
(3) Criminal confinement as a Class B felony (IC 35-42-3-3(b)(2)).
(b) As used in this section, "protective order" means any of the following:
(1) A protective order to prevent domestic or family violence issued under IC 34-26-5 (or, if the order involved a family or household member, under IC 34-26-2 or IC 34-4-5.1-5 before their repeal).
(2) An ex parte protective order issued under IC 34-26-5 (or, if the order involved a family or household member, an emergency order issued under IC 34-26-2 or IC 34-4-5.1 before their repeal).
(3) A workplace violence restraining order issued under IC 34-26-6.
(4) A no contact order in a dispositional decree issued under IC 31-34-20-1, IC 31-37-19-1, or IC 31-37-6-6 (or IC 31-6-4-15.4 or IC 31-6-4-15.9 before their repeal) or an order issued under IC 31-32-13 (or IC 31-6-7-14 before its repeal) that orders the person to refrain from direct or indirect contact with a child in need of services or a delinquent child.
(5) A no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion.
(6) A no contact order issued as a condition of probation.
(7) A protective order to prevent domestic or family violence issued under IC 31-15-5 (or IC 31-16-5 or IC 31-1-11.5-8.2 before their repeal).
(8) A protective order to prevent domestic or family violence
issued under IC 31-14-16-1 in a paternity action.
(9) A no contact order issued under IC 31-34-25 in a child in
need of services proceeding or under IC 31-37-25 in a juvenile
delinquency proceeding.
(10) An order issued in another state that is substantially
similar to an order described in subdivisions (1) through (9).
(11) An order that is substantially similar to an order
described in subdivisions (1) through (9) and is issued by an
Indian:
(A) tribe;
(B) band;
(C) pueblo;
(D) nation; or
(E) organized group or community, including an Alaska
Native village or regional or village corporation as defined
in or established under the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.);
that is recognized as eligible for the special programs and
services provided by the United States to Indians because of
their special status as Indians.
(12) An order issued under IC 35-33-8-3.2.
(13) An order issued under IC 35-38-1-30.
(c) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed an
offense sentenced to an additional fixed term of imprisonment if
the state can show beyond a reasonable doubt that the person
knowingly or intentionally violated a protective order in the
commission of the offense.
(d) If the person was convicted of the 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) 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 knowingly or intentionally
violated a protective order in the commission of the offense, the
court may sentence the person to an additional fixed term of
imprisonment of ten (10) years.
