HB 1134-1_ Filed 02/25/2008, 09:43 Drozda

SENATE MOTION


MADAM PRESIDENT:

    I move
that Engrossed House Bill 1134 be amended to read as follows:

SOURCE: Page 48, line 5; (08)MO113403.48. -->     Page 48, between lines 5 and 6, begin a new paragraph and insert:
SOURCE: IC 35-41-1-5.5; (08)MO113403.32. -->     "SECTION 32. IC 35-41-1-5.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 5.5. "Credit restricted felon" means a person who has been convicted of at least one (1) of the following offenses:
        (1) Child molesting involving sexual intercourse or deviate sexual conduct (IC 35-42-4-3(a)), if:
            (A) the offense is committed by a person at least twenty-one (21) years of age; and
            (B) the victim is less than twelve (12) years of age.
        (2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.
        (3) Murder (IC 35-42-1-1), if:
            (A) the person killed the victim while committing or attempting to commit child molesting (IC 35-42-4-3);
            (B) the victim was the victim of a sex crime under IC 35-42-4 for which the person was convicted; or
            (C) the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime under IC 35-42-4 and the person committed the murder with the intent to prevent the person from testifying.
".
SOURCE: Page 57, line 2; (08)MO113403.57. -->     Page 57, between lines 2 and 3, begin a new paragraph and insert:
SOURCE: IC 35-50-6-3; (08)MO113403.41. -->     "SECTION 41. IC 35-50-6-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 3. (a) A person assigned to Class I earns one (1) day of credit time for each day he the person is imprisoned for a crime or confined awaiting trial or sentencing.
    (b) A person assigned to Class II earns one (1) day of credit time for every two (2) days he the person is imprisoned for a crime or confined

awaiting trial or sentencing.
    (c) A person assigned to Class III earns no credit time.
    (d) A person assigned to Class IV earns one (1) day of credit for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.

SOURCE: IC 35-50-6-4; (08)MO113403.42. -->     SECTION 42. IC 35-50-6-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 4. (a) A person who is not a credit restricted felon 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. A credit restricted felon may not be assigned to Class I or Class II.
    (b) (c) A person who is not assigned to Class IV may be reassigned to Class II or Class III if he the person violates any of the following:
        (1) A rule of the department of correction.
        (2) A rule of the penal facility in which he 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, he the person must be granted a hearing to determine his the person's guilt or innocence and, if found guilty, whether reassignment is an appropriate disciplinary action for the violation. The person may waive his the right to the hearing.
     (d) 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.

    (c) (e) In connection with the hearing granted under subsection (b), (c) or (d), 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 his 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 his the person's testimony or any evidence derived from his the person's testimony is used in any criminal proceedings; and
        (10) have his the person's record expunged of any reference to the charge if he 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.
    (d) (f) A person may be reassigned from Class III to Class I, or 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 he the person should be reassigned to a higher credit time class. A credit restricted felon may not be reassigned to Class I or Class II.
SOURCE: IC 35-50-6-5; (08)MO113403.43. -->     SECTION 43. IC 35-50-6-5, AS AMENDED BY P.L.173-2006, SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: 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 community transition 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,

he the person may also be reassigned to Class II (if the person is not a credit restricted felon) 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(c) section 4(e) 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.".

SOURCE: Page 58, line 24; (08)MO113403.58. -->     Page 58, line 24, after "2008]" insert " (a)".
    Page 58, after line 28, begin a new paragraph and insert:
    " (b) IC 35-41-1-5.5, as added by this act, and IC 35-50-6-3, IC 35-50-6-4, and IC 35-50-6-5, all as amended by this act, apply only to persons convicted after June 30, 2008.".
    (Reference is to EHB 1134 as printed February 22, 2008.)

________________________________________

Senator DROZDA


MO113403/DI 106
2008