Introduced Version






HOUSE BILL No. 1356

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-38-1; IC 35-50-6.

Synopsis: Credit time for child molesters. Provides that a person convicted of child molesting involving intercourse or deviate sexual conduct is not eligible to earn "good time" credit. Makes conforming amendments.

Effective: July 1, 2013.





Kubacki, McMillin, Heuer




    January 22, 2013, read first time and referred to Committee on Courts and Criminal Code.







Introduced

First Regular Session 118th General Assembly (2013)


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.
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HOUSE BILL No. 1356



    A BILL FOR AN ACT to amend the Indiana Code concerning corrections.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-38-1-7.8; (13)IN1356.1.1. -->     SECTION 1. IC 35-38-1-7.8, AS ADDED BY P.L.147-2012, SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 7.8. (a) At the time of sentencing, a court shall determine whether a person is a credit restricted felon (as defined in IC 35-31.5-2-72) or a person required to be permanently assigned to Class III under IC 35-50-6-4(c).
    (b) A determination under subsection (a) must be based upon:
        (1) evidence admitted at trial that is relevant to the credit restricted status;
        (2) evidence introduced at the sentencing hearing; or
        (3) a factual basis provided as part of a guilty plea; or
        (4) the judgment of conviction.

    (c) Upon determining that a defendant is a credit restricted felon or a person permanently assigned to Class III, a court shall advise the defendant of the consequences of this determination.
SOURCE: IC 35-38-1-31; (13)IN1356.1.2. -->     SECTION 2. IC 35-38-1-31, AS ADDED BY P.L.147-2012, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE

JULY 1, 2013]: Sec. 31. (a) If a court imposes on a person convicted of a felony a sentence that involves a commitment to the department of correction, the court shall complete an abstract of judgment in an electronic format approved by the department of correction and the division of state court administration. The abstract of judgment must include, but not be limited to:
        (1) each offense the person is convicted of;
        (2) the sentence, including whether the sentence includes a suspended sentence, probation, or direct commitment to community corrections; and
        (3) whether the person is a credit restricted felon; and
        (4) whether the person is required to be permanently assigned to Class III under IC 35-50-6-4(c).

    (b) If a person convicted of a felony is committed to the department of correction by a court as a result of a violation of the terms of probation or other community placement, the court shall state in the abstract of judgment the specific reasons for revocation if probation, parole, or a community corrections placement has been revoked.

SOURCE: IC 35-50-6-4; (13)IN1356.1.3. -->     SECTION 3. IC 35-50-6-4, AS AMENDED BY P.L.80-2008, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) A person who is not a credit restricted felon or permanently assigned to Class III and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class I.
    (b) A person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class IV, unless the person is required to be permanently assigned to Class III under subsection (c). A credit restricted felon may not be assigned to Class I or Class II.
     (c) A person who is imprisoned following a conviction for child molesting under IC 35-42-4-3(a), including a credit restricted felon, is permanently assigned to Class III. A person permanently assigned to Class III may not be reassigned to Class I, II, or IV.
    (c) (d) A person who is not assigned to Class IV or permanently assigned to Class III under subsection (c) may be reassigned to Class II or Class III if the person violates any of the following:
        (1) A rule of the department of correction.
        (2) A rule of the penal facility in which the person is imprisoned.
        (3) A rule or condition of a community transition program.
However, a violation of a condition of parole or probation may not be the basis for reassignment. Before a person may be reassigned to a lower credit time class, the person must be granted a hearing to

determine the person's guilt or innocence and, if found guilty, whether reassignment is an appropriate disciplinary action for the violation. The person may waive the right to the hearing.
    (d) (e) A person who is assigned to Class IV may be reassigned to Class III if the person violates any of the following:
        (1) A rule of the department of correction.
        (2) A rule of the penal facility in which the person is imprisoned.
        (3) A rule or condition of a community transition program.
However, a violation of a condition of parole or probation may not be the basis for reassignment. Before a person may be reassigned to Class III, the person must be granted a hearing to determine the person's guilt or innocence and, if found guilty, whether reassignment is an appropriate disciplinary action for the violation. The person may waive the right to the hearing.
    (e) (f) In connection with the hearing granted under subsection (c) (d) or (d), (e), the person is entitled to:
        (1) have not less than twenty-four (24) hours advance written notice of the date, time, and place of the hearing, and of the alleged misconduct and the rule the misconduct is alleged to have violated;
        (2) have reasonable time to prepare for the hearing;
        (3) have an impartial decisionmaker;
        (4) appear and speak in the person's own behalf;
        (5) call witnesses and present evidence;
        (6) confront and cross-examine each witness, unless the hearing authority finds that to do so would subject a witness to a substantial risk of harm;
        (7) have the assistance of a lay advocate (the department may require that the advocate be an employee of, or a fellow prisoner in, the same facility or program);
        (8) have a written statement of the findings of fact, the evidence relied upon, and the reasons for the action taken;
        (9) have immunity if the person's testimony or any evidence derived from the person's testimony is used in any criminal proceedings; and
        (10) have the person's record expunged of any reference to the charge if the person is found not guilty or if a finding of guilt is later overturned.
Any finding of guilt must be supported by a preponderance of the evidence presented at the hearing.
    (f) (g) Except as provided in subsection (c), a person may be reassigned from Class III to Class I, Class II, or Class IV, or from Class

II to Class I. A person's assignment to Class III or Class II shall be reviewed at least once every six (6) months to determine if the person should be reassigned to a higher credit time class. A credit restricted felon or person permanently assigned to Class III under subsection (c) may not be reassigned to Class I or Class II.

SOURCE: IC 35-50-6-5; (13)IN1356.1.4. -->     SECTION 4. IC 35-50-6-5, AS AMENDED BY P.L.105-2010, SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) A person may, with respect to the same transaction, be deprived of any part of the credit time the person has earned for any of the following:
        (1) A violation of one (1) or more rules of the department of correction.
        (2) If the person is not committed to the department, a violation of one (1) or more rules of the penal facility in which the person is imprisoned.
        (3) A violation of one (1) or more rules or conditions of a:
            (A) community transition program; or
            (B) community corrections program.
        (4) If a court determines that a civil claim brought by the person in a state or an administrative court is frivolous, unreasonable, or groundless.
        (5) If the person is a sex offender (as defined in IC 11-8-8-5) and refuses to register before being released from the department as required under IC 11-8-8-7.
        (6) If the person is a sex offender (as defined in IC 11-8-8-5) and refuses to participate in a sex offender treatment program specifically offered to the sex offender by the department of correction while the person is serving a period of incarceration with the department of correction.
However, the violation of a condition of parole or probation may not be the basis for deprivation. Whenever a person is deprived of credit time, the person may also be reassigned to Class II (if the person is not a credit restricted felon or a person permanently assigned to Class III) or Class III.
    (b) Before a person may be deprived of earned credit time, the person must be granted a hearing to determine the person's guilt or innocence and, if found guilty, whether deprivation of earned credit time is an appropriate disciplinary action for the violation. In connection with the hearing, the person is entitled to the procedural safeguards listed in section 4(e) 4(f) of this chapter. The person may waive the person's right to the hearing.
    (c) Any part of the credit time of which a person is deprived under

this section may be restored.