Introduced Version
SENATE BILL No. 348
_____
DIGEST OF INTRODUCED BILL
Citations Affected:
IC 16-31-3-14.5
;
IC 25-1-1.1
;
IC 31-30-1-4
;
IC 34-24-1-1
;
IC 35-38-1-7.1
;
IC 35-42-1-1
;
IC 35-45-6-1
;
IC 35-48-4
;
IC 35-50-2.
Synopsis: Methamphetamine. Makes the criminal penalties for
offenses relating to cocaine equivalent to the penalties for offenses
relating to methamphetamine. Makes conforming changes to other
statutes relating to cocaine and narcotic drug offenses to incorporate
offenses relating to methamphetamine including: (1) specifying that a
juvenile court does not have jurisdiction over a person for allegedly
dealing in methamphetamine; (2) providing that if a person commits
possessing or dealing in methamphetamine, certain occupational and
professional licenses and certifications held by the person may be
revoked or suspended; and (3) providing that certain property used by
the person to commit the offense may be seized.
Effective: July 1, 2000.
Clark
January 10, 2000, read first time and referred to Committee on Judiciary.
Introduced
Second Regular Session 111th General Assembly (2000)
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.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 1999 General Assembly.
SENATE BILL No. 348
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1.
IC 16-31-3-14.5
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 14.5. The commission
may permanently revoke a license or certificate under procedures
provided by section 14 of this chapter if the individual who holds the
license or certificate issued under this title is convicted of any of the
following:
(1) Dealing in cocaine, or a narcotic drug, or methamphetamine
under
IC 35-48-4-1.
(2) Dealing in a schedule I, II, or III controlled substance under
IC 35-48-4-2.
(3) Dealing in a schedule IV controlled substance under
IC 35-48-4-3.
(4) Dealing in a schedule V controlled substance under
IC 35-48-4-4.
(5) Dealing in a substance represented to be a controlled
substance under
IC 35-48-4-4.5.
(6) Knowingly or intentionally manufacturing, advertising,
distributing, or possessing with intent to manufacture, advertise,
or distribute a substance represented to be a controlled substance
under
IC 35-48-4-4.6.
(7) Dealing in a counterfeit substance under
IC 35-48-4-5.
(8) Dealing in marijuana, hash oil, or hashish under
IC 35-48-4-10(b).
(9) Conspiracy under
IC 35-41-5-2
to commit an offense listed in
subdivisions (1) through (8).
(10) Attempt under
IC 35-41-5-1
to commit an offense listed in
subdivisions (1) through (8).
(11) A crime of violence (as defined in
IC 35-50-1-2
(a)).
(12) An offense in any other jurisdiction in which the elements of
the offense for which the conviction was entered are substantially
similar to the elements of an offense described under subdivisions
(1) through (11).
SECTION 2.
IC 25-1-1.1-2
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 2. A board, a
commission, or a committee may suspend or revoke a license or
certificate issued under this title by the board, the commission, or the
committee if the individual who holds the license or certificate is
convicted of any of the following:
(1) Possession of cocaine, or a narcotic drug, or
methamphetamine under
IC 35-48-4-6.
(2) Possession of a controlled substance under
IC 35-48-4-7
(a).
(3) Fraudulently obtaining a controlled substance under
IC 35-48-4-7(b).
(4) Manufacture of paraphernalia as a Class D felony under
IC 35-48-4-8.1(b).
(5) Dealing in paraphernalia as a Class D felony under
IC 35-48-4-8.5(b).
(6) Possession of paraphernalia as a Class D felony under
IC 35-48-4-8.3(b).
(7) Possession of marijuana, hash oil, or hashish as a Class D
felony under
IC 35-48-4-11.
(8) Maintaining a common nuisance under
IC 35-48-4-13.
(9) An offense relating to registration, labeling, and prescription
forms under
IC 35-48-4-14.
(10) Conspiracy under
IC 35-41-5-2
to commit an offense listed
in subdivisions (1) through (9).
(11) Attempt under
IC 35-41-5-1
to commit an offense listed in
subdivisions (1) through (9).
(12) An offense in any other jurisdiction in which the elements of
the offense for which the conviction was entered are substantially
similar to the elements of an offense described under subdivisions
(1) through (11).
SECTION 3.
IC 25-1-1.1-3
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 3. A board, a
commission, or a committee shall revoke or suspend a license or
certificate issued under this title by the board, the commission, or the
committee if the individual who holds the license or certificate is
convicted of any of the following:
(1) Dealing in cocaine, or a narcotic drug, or methamphetamine
under
IC 35-48-4-1.
(2) Dealing in a schedule I, II, or III controlled substance under
IC 35-48-4-2.
(3) Dealing in a schedule IV controlled substance under
IC 35-48-4-3.
(4) Dealing in a schedule V controlled substance under
IC 35-48-4-4.
(5) Dealing in a substance represented to be a controlled
substance under
IC 35-48-4-4.5.
(6) Knowingly or intentionally manufacturing, advertising,
distributing, or possessing with intent to manufacture, advertise,
or distribute a substance represented to be a controlled substance
under
IC 35-48-4-4.6.
(7) Dealing in a counterfeit substance under
IC 35-48-4-5.
(8) Dealing in marijuana, hash oil, or hashish under
IC 35-48-4-10(b).
(9) Conspiracy under
IC 35-41-5-2
to commit an offense listed in
subdivisions (1) through (8).
(10) Attempt under
IC 35-41-5-1
to commit an offense listed in
subdivisions (1) through (8).
(11) An offense in any other jurisdiction in which the elements of
the offense for which the conviction was entered are substantially
similar to the elements of an offense described under subdivisions
(1) through (10).
(12) A violation of any federal or state drug law or rule related to
wholesale legend drug distributors licensed under
IC 25-26-14.
SECTION 4.
IC 31-30-1-4
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 4. (a) The juvenile
court does not have jurisdiction over an individual for an alleged
violation of:
(1)
IC 35-42-1-1
(murder);
(2)
IC 35-42-3-2
(kidnapping);
(3)
IC 35-42-4-1
(rape);
(4)
IC 35-42-4-2
(criminal deviate conduct);
(5)
IC 35-42-5-1
(robbery) if:
(A) the robbery was committed while armed with a deadly
weapon; or
(B) the robbery results in bodily injury or serious bodily
injury;
(6)
IC 35-42-5-2
(carjacking);
(7)
IC 35-45-9-3
(criminal gang activity);
(8)
IC 35-45-9-4
(criminal gang intimidation);
(9)
IC 35-47-2-1
(carrying a handgun without a license);
(10)
IC 35-47-10
(children and firearms);
(11)
IC 35-47-5-4.1
(dealing in a sawed-off shotgun);
(12)
IC 35-48-4-1
(dealing in cocaine,
or a narcotic drug,
or
methamphetamine);
(13)
IC 35-48-4-2
(dealing in a schedule I, II, or III controlled
substance);
(14)
IC 35-48-4-3
(dealing in a schedule IV controlled substance);
or
(15) any offense that may be joined under
IC 35-34-1-9
(a)(2) with
any crime listed in subdivisions (1) through (14);
if the individual was at least sixteen (16) years of age at the time of the
alleged violation.
(b) Once an individual described in subsection (a) has been charged
with any crime listed in subsection (a)(1) through (a)(15), the court
having adult criminal jurisdiction shall retain jurisdiction over the case
even if the individual pleads guilty to or is convicted of a lesser
included offense. A plea of guilty to or a conviction of a lesser included
offense does not vest jurisdiction in the juvenile court.
SECTION 5.
IC 34-24-1-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 1. (a) The following
may be seized:
(1) All vehicles (as defined by
IC 35-41-1
), if they are used or are
intended for use by the person or persons in possession of them to
transport or in any manner to facilitate the transportation of the
following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in cocaine,
or a narcotic drug,
or
methamphetamine (IC 35-48-4-1).
(ii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iii) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(iv) Dealing in a schedule V controlled substance
(IC 35-48-4-4).
(v) Dealing in a counterfeit substance (IC 35-48-4-5).
(vi) Possession of cocaine, or a narcotic drug, or
methamphetamine (IC 35-48-4-6).
(vii) Dealing in paraphernalia (IC 35-48-4-8.5).
(viii) Dealing in marijuana, hash oil, or hashish
(IC 35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property
(IC 35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of
IC 13-30-6-6.
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of
IC 35-48-4
(other than items
subject to forfeiture under
IC 16-42-20-5
or
IC 16-6-8.5-5.1
before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal
confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child molesting
(IC 35-42-4-3), or child exploitation (IC 35-42-4-4).
(5) Real property owned by a person who uses it to commit any of
the following as a Class A felony, a Class B felony, or a Class C
felony:
(A) Dealing in cocaine, or a narcotic drug, or
methamphetamine (IC 35-48-4-1).
(B) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(C) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(D) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).
(6) Equipment and recordings used by a person to commit fraud
under
IC 35-43-5-4
(11).
(7) Recordings sold, rented, transported, or possessed by a person
in violation of
IC 24-4-10.
(8) Property (as defined by
IC 35-41-1-23
) or an enterprise (as
defined by
IC 35-45-6-1
) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in
IC 35-45-13-6) and plans, instructions, or publications used to
commit an offense under
IC 35-45-13.
(b) A vehicle used by any person as a common or contract carrier in
the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle knowingly
permitted the vehicle to be used to engage in conduct that subjects it to
seizure under subsection (a).
(c) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of
IC 35-48-4
found near or on a person
who is committing, attempting to commit, or conspiring to commit any
of the following offenses shall be admitted into evidence in an action
under this chapter as prima facie evidence that the money, negotiable
instrument, security, or other thing of value is property that has been
used or was to have been used to facilitate the violation of a criminal
statute or is the proceeds of the violation of a criminal statute:
(1)
IC 35-48-4-1
(dealing in cocaine,
or a narcotic drug,
or
methamphetamine).
(2)
IC 35-48-4-2
(dealing in a schedule I, II, or III controlled
substance).
(3)
IC 35-48-4-3
(dealing in a schedule IV controlled substance).
(4)
IC 35-48-4-4
(dealing in a schedule V controlled substance)
as a Class B felony.
(5)
IC 35-48-4-6
(possession of cocaine,
or a narcotic drug,
or
methamphetamine) as a Class A felony, Class B felony, or Class
C felony.
(6)
IC 35-48-4-10
(dealing in marijuana, hash oil, or hashish) as
a Class C felony.
SECTION 6.
IC 35-38-1-7.1
, AS AMENDED BY P.L.183-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2000]: Sec. 7.1. (a) In determining what sentence to impose
for a crime, the court shall consider:
(1) the risk that the person will commit another crime;
(2) the nature and circumstances of the crime committed;
(3) the person's:
(A) prior criminal record;
(B) character; and
(C) condition;
(4) whether the victim of the crime was less than twelve (12)
years of age or at least sixty-five (65) years of age;
(5) whether the person violated a protective order issued against
the person under IC 31-15 or IC 31-16 (or
IC 31-1-11.5
before its
repeal) or
IC 34-26-2
(or
IC 34-4-5.1
before its repeal); and
(6) any oral or written statement made by a victim of the crime.
(b) The court may consider the following factors as aggravating
circumstances or as favoring imposing consecutive terms of
imprisonment:
(1) The person has recently violated the conditions of any
probation, parole, or pardon granted to the person.
(2) The person has a history of criminal or delinquent activity.
(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.
(5) The victim of the crime was less than twelve (12) years of age
or at least sixty-five (65) years of age.
(6) The victim of the crime was mentally or physically infirm.
(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.
(11) The injury to or death of the victim of the crime was the
result of shaken baby syndrome (as defined in
IC 16-41-40-2
).
(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.
(13) The person:
(A) committed trafficking with an inmate under
IC 35-44-3-9
;
and
(B) is an employee of the penal facility.
(c) The court may consider the following factors as mitigating
circumstances or as favoring suspending the sentence and imposing
probation:
(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.
(d) The criteria listed in subsections (b) and (c) do not limit the
matters that the court may consider in determining the sentence.
(e) For the purposes of this article, the following crimes are
considered sex crimes:
(1) Rape (IC 35-42-4-1).
(2) Criminal deviate conduct (IC 35-42-4-2).
(3) Child molesting (IC 35-42-4-3).
(4) Child seduction (IC 35-42-4-7).
(5) Prostitution (IC 35-45-4-2).
(6) Patronizing a prostitute (IC 35-45-4-3).
(7) Incest (IC 35-46-1-3).
(8) Sexual misconduct with a minor under
IC 35-42-4-9
(a).
(f) For the purposes of this article, the following crimes are
considered offenses related to controlled substances:
(1) Dealing in cocaine,
or a narcotic drug,
or methamphetamine
(IC 35-48-4-1).
(2) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(3) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(4) Dealing in a schedule V controlled substance (IC 35-48-4-4).
(5) Possession of cocaine,
or a narcotic drug,
or
methamphetamine (IC 35-48-4-6).
(6) Possession of a controlled substance (IC 35-48-4-7).
(7) Dealing in paraphernalia (IC 35-48-4-8.5).
(8) Possession of paraphernalia (IC 35-48-4-8.3).
(9) Offenses relating to registration (IC 35-48-4-14).
(g) For the purposes of this section, a person received risk
counseling if the person had been:
(1) notified in person or in writing that tests have confirmed the
presence of antibodies to the human immunodeficiency virus
(HIV) in the person's blood; and
(2) warned of the behavior that can transmit HIV.
SECTION 7.
IC 35-42-1-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 1. A person who:
(1) knowingly or intentionally kills another human being;
(2) kills another human being while committing or attempting to
commit arson, burglary, child molesting, consumer product
tampering, criminal deviate conduct, kidnapping, rape, robbery,
or carjacking;
(3) kills another human being while committing or attempting to
commit:
(A) dealing in cocaine,
or a narcotic drug,
or
methamphetamine (IC 35-48-4-1);
(B) dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2);
(C) dealing in a schedule IV controlled substance
(IC 35-48-4-3); or
(D) dealing in a schedule V controlled substance; or
(4) knowingly or intentionally kills a fetus that has attained
viability (as defined in
IC 16-18-2-365
);
commits murder, a felony.
SECTION 8.
IC 35-45-6-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 1. As used in this
chapter:
"Documentary material" means any document, drawing, photograph,
recording, or other tangible item containing compiled data from which
information can be either obtained or translated into a usable form.
"Enterprise" means:
(1) a sole proprietorship, corporation, limited liability company,
partnership, business trust, or governmental entity; or
(2) a union, an association, or a group, whether a legal entity or
merely associated in fact.
"Pattern of racketeering activity" means engaging in at least two (2)
incidents of racketeering activity that have the same or similar intent,
result, accomplice, victim, or method of commission, or that are
otherwise interrelated by distinguishing characteristics that are not
isolated incidents. However, the incidents are a pattern of racketeering
activity only if at least one (1) of the incidents occurred after August
31, 1980, and if the last of the incidents occurred within five (5) years
after a prior incident of racketeering activity.
"Racketeering activity" means to commit, to attempt to commit, to
conspire to commit a violation of, or aiding and abetting in a violation
of any of the following:
(1) A provision of
IC 23-2-1
, or of a rule or order issued under
IC 23-2-1.
(2) A violation of
IC 35-45-9.
(3) A violation of IC 35-47.
(4) A violation of
IC 35-49-3.
(5) Murder (IC 35-42-1-1).
(6) Battery as a Class C felony (IC 35-42-2-1).
(7) Kidnapping (IC 35-42-3-2).
(8) Child exploitation (IC 35-42-4-4).
(9) Robbery (IC 35-42-5-1).
(10) Carjacking (IC 35-42-5-2).
(11) Arson (IC 35-43-1-1).
(12) Burglary (IC 35-43-2-1).
(13) Theft (IC 35-43-4-2).
(14) Receiving stolen property (IC 35-43-4-2).
(15) Forgery (IC 35-43-5-2).
(16) Fraud (IC 35-43-5-4(1) through
IC 35-43-5-4
(9)).
(17) Bribery (IC 35-44-1-1).
(18) Official misconduct (IC 35-44-1-2).
(19) Conflict of interest (IC 35-44-1-3).
(20) Perjury (IC 35-44-2-1).
(21) Obstruction of justice (IC 35-44-3-4).
(22) Intimidation (IC 35-45-2-1).
(23) Promoting prostitution (IC 35-45-4-4).
(24) Promoting professional gambling (IC 35-45-5-4).
(25) Dealing in cocaine, or a narcotic drug, or
methamphetamine (IC 35-48-4-1).
(26) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(27) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(28) Dealing in a schedule V controlled substance (IC 35-48-4-4).
(29) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).
(30) Money laundering (IC 35-45-15-5).
SECTION 9.
IC 35-48-4-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 1. (a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
cocaine,
or a narcotic drug,
or methamphetamine, pure or
adulterated, classified in schedule I or II; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
cocaine,
or a narcotic drug,
or methamphetamine, pure or
adulterated, classified in schedule I or II;
commits dealing in cocaine,
or a narcotic drug,
or methamphetamine,
a Class B felony, except as provided in subsection (b).
(b) The offense is a Class A felony if:
(1) the amount of the drug involved weighs three (3) grams or
more;
(2) the person:
(A) delivered; or
(B) financed the delivery of;
the drug to a person under eighteen (18) years of age at least three
(3) years junior to the person; or
(3) the person delivered or financed the delivery of the drug:
(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park; or
(iii) a family housing complex.
SECTION 10.
IC 35-48-4-6
, AS AMENDED BY P.L.188-1999,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2000]: Sec. 6. (a) A person who, without a valid prescription
or order of a practitioner acting in the course of the practitioner's
professional practice, knowingly or intentionally possesses cocaine
(pure or adulterated),
or a narcotic drug (pure or adulterated),
or
methamphetamine (pure or adulterated) classified in schedule I or
II commits possession of cocaine,
or a narcotic drug,
or
methamphetamine, a Class D felony, except as provided in subsection
(b).
(b) The offense is:
(1) a Class C felony if:
(A) the amount of the drug involved (pure or adulterated)
weighs three (3) grams or more; or
(B) the person was also in possession of a firearm (as defined
in
IC 35-47-1-5
);
(2) a Class B felony if the person in possession of the cocaine,
or
narcotic drug,
or methamphetamine possesses less than three (3)
grams of pure or adulterated cocaine or narcotic drug:
(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park; or
(iii) a family housing complex; and
(3) a Class A felony if the person possesses the cocaine,
or
narcotic drug,
or methamphetamine in an amount (pure or
adulterated) weighing at least three (3) grams:
(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park; or
(iii) a family housing complex.
SECTION 11.
IC 35-50-2-2
, AS AMENDED BY P.L.188-1999,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2000]: Sec. 2. (a) The court may suspend any part of a
sentence for a felony, except as provided in this section or in section
2.1 of this chapter.
(b) With respect to the following crimes listed in this subsection, the
court may suspend only that part of the sentence that is in excess of the
minimum sentence:
(1) The crime committed was a Class A or Class B felony and the
person has a prior unrelated felony conviction.
(2) The crime committed was a Class C felony and less than seven
(7) years have elapsed between the date the person was
discharged from probation, imprisonment, or parole, whichever
is later, for a prior unrelated felony conviction and the date the
person committed the Class C felony for which the person is
being sentenced.
(3) The crime committed was a Class D felony and less than three
(3) years have elapsed between the date the person was
discharged from probation, imprisonment, or parole, whichever
is later, for a prior unrelated felony conviction and the date the
person committed the Class D felony for which the person is
being sentenced. However, the court may suspend the minimum
sentence for the crime only if the court orders home detention
under
IC 35-38-1-21
or
IC 35-38-2.5-5
instead of the minimum
sentence specified for the crime under this chapter.
(4) The felony committed was:
(A) murder (IC 35-42-1-1);
(B) battery (IC 35-42-2-1) with a deadly weapon;
(C) sexual battery (IC 35-42-4-8) with a deadly weapon;
(D) kidnapping (IC 35-42-3-2);
(E) confinement (IC 35-42-3-3) with a deadly weapon;
(F) rape (IC 35-42-4-1) as a Class A felony;
(G) criminal deviate conduct (IC 35-42-4-2) as a Class A
felony;
(H) child molesting (IC 35-42-4-3) as a Class A or Class B
felony;
(I) robbery (IC 35-42-5-1) resulting in serious bodily injury or
with a deadly weapon;
(J) arson (IC 35-43-1-1) for hire or resulting in serious bodily
injury;
(K) burglary (IC 35-43-2-1) resulting in serious bodily injury
or with a deadly weapon;
(L) resisting law enforcement (IC 35-44-3-3) with a deadly
weapon;
(M) escape (IC 35-44-3-5) with a deadly weapon;
(N) rioting (IC 35-45-1-2) with a deadly weapon;
(O) dealing in cocaine,
or a narcotic drug,
or
methamphetamine (IC 35-48-4-1) as a Class A felony;
(P) dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2) if the amount of controlled substance involved
has an aggregate weight of three (3) grams or more;
(Q) an offense under
IC 9-30-5
(operating a vehicle while
intoxicated) and the person who committed the offense has
accumulated at least two (2) prior unrelated convictions under
IC 9-30-5
; or
(R) aggravated battery (IC 35-42-2-1.5).
(c) Except as provided in subsection (e), whenever the court
suspends a sentence for a felony, it shall place the person on probation
under
IC 35-38-2
for a fixed period to end not later than the date that
the maximum sentence that may be imposed for the felony will expire.
(d) The minimum sentence for a person convicted of voluntary
manslaughter may not be suspended unless the court finds at the
sentencing hearing that the crime was not committed by means of a
deadly weapon.
(e) Whenever the court suspends that part of an offender's (as
defined in
IC 5-2-12-4
) sentence that is suspendible under subsection
(b), the court shall place the offender on probation under
IC 35-38-2
for
not more than ten (10) years.
(f) An additional term of imprisonment imposed under
IC 35-50-2-11
may not be suspended.
(g) A term of imprisonment imposed under
IC 35-47-10-6
or
IC 35-47-10-7
may not be suspended if the commission of the offense
was knowing or intentional.
(h) A term of imprisonment imposed for an offense under
IC 35-48-4-6
(b)(1)(B) may not be suspended.
SECTION 12.
IC 35-50-2-9
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 9. (a) The state may
seek either a death sentence or a sentence of life imprisonment without
parole for murder by alleging, on a page separate from the rest of the
charging instrument, the existence of at least one (1) of the aggravating
circumstances listed in subsection (b). In the sentencing hearing after
a person is convicted of murder, the state must prove beyond a
reasonable doubt the existence of at least one (1) of the aggravating
circumstances alleged. However, the state may not proceed against a
defendant under this section if a court determines at a pretrial hearing
under
IC 35-36-9
that the defendant is a mentally retarded individual.
(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, or
methamphetamine (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful
detonation of an explosive with intent to injure 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
).
(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 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) 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 (k). The court shall
make the final determination of the sentence, after considering the
jury's recommendation, and the sentence shall be based on the same
standards that the jury was required to consider. The court is not bound
by the jury's recommendation. In making the final determination of the
sentence after receiving the jury's recommendation, the court may
receive evidence of the crime's impact on members of the victim's
family.
(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 (k).
(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) 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.