Proposed New Aggravating Circumstances
IC 35-37-2.5 (new chapter)
IC 35-37-2.5 (new chapter)
(1) The harm, injury, loss, or damage suffered by the victim was:
(A) significant; and
(B) greater than the elements necessary to prove the commission 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.
(8) The person was in a position having care, custody, or control of the victim.
(10) The person threatened to harm the victim or a witness if the victim or witness told anyone about the offense.
Proposed Deleted Aggravating Circumstances
IC 35-38-1-7.1
IC 35-38-1-7.1
(3) The person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility.
(4) Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.
(7) The person committed a forcible felony while wearing a garment designed to resist the penetration of a bullet.
(8) The person committed a sex crime listed in subsection (e) and:
(A) the crime created an epidemiologically demonstrated risk of transmission of the human immunodeficiency virus (HIV) and involved the sex organ of one (1) person and the mouth, anus, or sex organ of another person;
(B) the person had knowledge that the person was a carrier of HIV; and
(C) the person had received risk counseling as described in subsection (g).
(9) The person committed an offense related to controlled substances listed in subsection (f) if:
(A) the offense involved:
(i) the delivery by any person to another person; or
(ii) the use by any person on another person;
of a contaminated sharp (as defined in IC 16-41-16-2) or other paraphernalia that creates an epidemiologically demonstrated risk of transmission of HIV by involving percutaneous contact;
(B) the person had knowledge that the person was a carrier of the human immunodeficiency virus (HIV); and
(C) the person had received risk counseling as described in subsection (g).
(10) The person committed the offense in an area of a consolidated or second class city that is designated as a public safety improvement area by the Indiana criminal justice institute under IC 36-8-19.5.
(12) Before the commission of the crime, the person administered to the victim of the crime, without the victim's knowledge, a sedating drug or a drug that had a hypnotic effect on the victim, or the person had knowledge that such a drug had been administered to the victim without the victim's knowledge.
I find a certain irony in the new proposed aggravating circumstances involving violations of protective orders and threatening victims or witnesses. The violation of a protective order is independently prosecutable by the State as indirect criminal contempt. Simms v. State, 791 N.E.2d 225 (Ind. Ct. App. 2003); Ind. Code § 34-47-3-1. Similarly, threatening a victim or witness if they tell is independently prosecutable by the State as Intimidation under Indiana Code § 35-45-2-1(a)(2) or (b)(1)(B)(iii) and (c).
So while many are thinking of Blakely as pushing aggravating circumstances into the category of traditional elements, others are thinking of pushing whole crimes into the category of aggravating circumstances. Just another surprising Blakely result--to me, anyway.
The result is also not without significant consequences. For example, the worst kind of Intimidation is a C felony with a maximum sentence of 8 years. If the State were to charge the intimidation as an aggravating circumstance in, say, a B felony case, a defendant could have his or her sentence upped by 10 years, two years more than if there had been an independent conviction for Intimidation as a C felony. And the 10-year enhancement would be available, even if the intimidation alleged as an aggravating circumstance would only have been of the A misdemeanor variety as an independent criminal charge.
Strangely, the situation is the reverse, at least as a theoretical matter, with the violation of a protective order and indirect criminal contempt. The only limitation on a sentence for indirect criminal contempt is reasonableness. In re Craig, 552 N.E.2d 53, 56 (Ind. Ct. App. 1990). So for a C felony conviction, for example, only four years could be added for an indirect criminal contempt as an aggravating circumstance, even if a sentence greater than four years would be reasonable if the indirect contempt had been prosecuted independently. (I don't know what the record maximum sentence for indirect criminal contempt is. Craig relies on United States v. Misenhemer, 677 F. Supp. 1386 (N.D. Ind. 1988), a case in which Judge Miller handed out a 10-year sentence for the refusal to provide a handwriting exemplar.)
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