Introduced Version
SENATE BILL No. 583
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 33-32-3-1; IC 33-40; IC 35-36; IC 35-37;
IC 35-38; IC 35-50-2.
Synopsis: Elimination of death penalty. Abolishes the death penalty.
Specifies that if a person was sentenced to death and is awaiting
execution of the death sentence, the person's death sentence is
commuted to a sentence of life imprisonment without parole. Repeals
the law concerning execution of death sentences and makes other
conforming amendments. Makes a technical correction.
Effective: Upon passage.
Randolph
January 15, 2013, read first time and referred to Committee on Corrections & Criminal
Law.
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,
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Additions: Whenever a new statutory provision is being enacted (or a new constitutional
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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 2012 Regular Session of the General Assembly.
SENATE BILL No. 583
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:
SOURCE: IC 33-32-3-1; (13)IN0583.1.1. -->
SECTION 1. IC 33-32-3-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. (a) The clerk
shall endorse the time of filing on each writing required to be filed in
the office of the clerk.
(b) The clerk shall carefully preserve in the office of the clerk all
records and writings pertaining to the clerk's official duties.
(c) The clerk shall procure, at the expense of the county, all
necessary judges' appearance, bar, judgment, and execution dockets,
order books, and final record books.
(d) The clerk shall:
(1) attend, in person or by deputy, the circuit court of the county;
and
(2) enter in proper record books all orders, judgments, and
decrees of the court.
(e) Not more than fifteen (15) days after the cases are finally
determined, the clerk shall enter in final record books a complete
record of:
(1) all cases involving the title to land;
(2) all criminal cases in which the punishment is death or
imprisonment, except where a nolle prosequi is entered or an
acquittal is had; and
(3) all other cases, at the request of either party and upon payment
of the costs.
SOURCE: IC 33-40-5-4; (13)IN0583.1.2. -->
SECTION 2. IC 33-40-5-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4. The commission
shall do the following:
(1) Make recommendations to the supreme court concerning
standards for indigent defense services provided for defendants
against whom the state has sought the death sentence under
IC 35-50-2-9, including the following:
(A) Determining indigency and eligibility for legal
representation.
(B) Selection and qualifications of attorneys to represent
indigent defendants at public expense.
(C) Determining conflicts of interest.
(D) Investigative, clerical, and other support services
necessary to provide adequate legal representation.
(2) (1) Adopt guidelines and standards for indigent defense
services under which the counties will be eligible for
reimbursement under IC 33-40-6, including the following:
(A) Determining indigency and the eligibility for legal
representation.
(B) The issuance and enforcement of orders requiring the
defendant to pay for the costs of court appointed legal
representation under IC 33-40-3.
(C) The use and expenditure of funds in the county
supplemental public defender services fund established under
IC 33-40-3-1.
(D) Qualifications of attorneys to represent indigent
defendants at public expense.
(E) Compensation rates for salaried, contractual, and assigned
counsel.
(F) Minimum and maximum caseloads of public defender
offices and contract attorneys.
(3) (2) Make recommendations concerning the delivery of
indigent defense services in Indiana.
(4) (3) Make an annual report to the governor, the general
assembly, and the supreme court on the operation of the public
defense fund.
The report to the general assembly under subdivision (4) (3) must be
in an electronic format under IC 5-14-6.
SOURCE: IC 33-40-6-4; (13)IN0583.1.3. -->
SECTION 3. IC 33-40-6-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4. (a) A county
auditor may submit on a quarterly basis a certified request to the public
defender commission for reimbursement from the public defense fund
for an amount equal to fifty percent (50%) of the county's expenditures
for indigent defense services provided to a defendant against whom the
death sentence is sought under IC 35-50-2-9.
(b) (a) A county auditor may submit on a quarterly basis a certified
request to the public defender commission for reimbursement from the
public defense fund for an amount equal to forty percent (40%) of the
county's expenditures for indigent defense services provided in all
noncapital cases except misdemeanors.
(c) (b) A request under this section from a county described in
IC 33-40-7-1(3) may be limited to expenditures for indigent defense
services provided by a particular division of a court.
SOURCE: IC 33-40-6-5; (13)IN0583.1.4. -->
SECTION 4. IC 33-40-6-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5. (a) Except as
provided under section 6 of this chapter, upon certification by a county
auditor and a determination by the public defender commission that the
request is in compliance with the guidelines and standards set by the
commission, the commission shall quarterly authorize an amount of
reimbursement due the county
(1) that is equal to fifty percent (50%) of the county's certified
expenditures for indigent defense services provided for a
defendant against whom the death sentence is sought under
IC 35-50-2-9; and
(2) that is equal to forty percent (40%) of the county's certified
expenditures for defense services provided in noncapital all cases
except misdemeanors.
The division of state court administration shall then certify to the
auditor of state the amount of reimbursement owed to a county under
this chapter.
(b) Upon receiving certification from the division of state court
administration, the auditor of state shall issue a warrant to the treasurer
of state for disbursement to the county of the amount certified.
SOURCE: IC 33-40-6-6; (13)IN0583.1.5. -->
SECTION 5. IC 33-40-6-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 6.
The commission
shall give priority to certified claims for reimbursement in capital
cases. If the balance in the public defense fund is not adequate to fully
reimburse all certified claims in
noncapital all cases, the commission
shall prorate reimbursement of certified claims in noncapital all cases.
SOURCE: IC 33-40-7-11; (13)IN0583.1.6. -->
SECTION 6. IC 33-40-7-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 11. (a) A county
public defender board shall submit a written request for reimbursement
to the county auditor. The request must set forth the total of the
county's expenditures for indigent defense services to the county
auditor and may be limited in a county described in section 1(3) of this
chapter to expenditures for indigent defense services provided by a
particular division of a court. The county auditor shall review the
request and certify the total of the county's expenditures for indigent
defense services to the Indiana public defender commission.
(b) Upon certification by the Indiana public defender commission
that the county's indigent defense services meet the commission's
standards, the auditor of state shall issue a warrant to the treasurer of
state for disbursement to the county of a sum equal to forty percent
(40%) of the county's certified expenditures for indigent defense
services provided in noncapital all cases except misdemeanors.
(c) If a county's indigent defense services fail to meet the standards
adopted by the Indiana public defender commission, the public
defender commission shall notify the county public defender board and
the county fiscal body of the failure to comply with the Indiana public
defender commission's standards. Unless the county public defender
board corrects the deficiencies to comply with the standards not more
than ninety (90) days after the date of the notice, the county's eligibility
for reimbursement from the public defense fund terminates at the close
of that fiscal year.
SOURCE: IC 35-36-2-5; (13)IN0583.1.7. -->
SECTION 7. IC 35-36-2-5, AS AMENDED BY P.L.114-2012,
SECTION 75, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 5. (a) Except as provided by subsection (e),
whenever a defendant is found guilty but mentally ill at the time of the
crime or enters a plea to that effect that is accepted by the court, the
court shall sentence the defendant in the same manner as a defendant
found guilty of the offense.
(b) Before sentencing the defendant under subsection (a), the court
shall require the defendant to be evaluated by a physician licensed
under IC 25-22.5 who practices psychiatric medicine, a licensed
psychologist, or a community mental health center (as defined in
IC 12-7-2-38). However, the court may waive this requirement if the
defendant was evaluated by a physician licensed under IC 25-22.5 who
practices psychiatric medicine, a licensed psychologist, or a community
mental health center and the evaluation is contained in the record of the
defendant's trial or plea agreement hearing.
(c) If a defendant who is found guilty but mentally ill at the time of
the crime is committed to the department of correction, the defendant
shall be further evaluated and then treated in such a manner as is
psychiatrically indicated for the defendant's mental illness. Treatment
may be provided by:
(1) the department of correction; or
(2) the division of mental health and addiction after transfer under
IC 11-10-4.
(d) If a defendant who is found guilty but mentally ill at the time of
the crime is placed on probation, the court may, in accordance with
IC 35-38-2-2.3, require that the defendant undergo treatment.
(e) As used in this subsection, "individual with mental retardation"
means an individual who, before becoming twenty-two (22) years of
age, manifests:
(1) significantly subaverage intellectual functioning; and
(2) substantial impairment of adaptive behavior;
that is documented in a court ordered evaluative report. If a court
determines under IC 35-36-9 that a defendant who is charged with a
murder for which the state seeks a death sentence of life imprisonment
without parole is an individual with mental retardation, the court shall
sentence the defendant under IC 35-50-2-3(a).
(f) If a defendant is found guilty but mentally ill, the court shall
transmit any information required by the division of state court
administration to the division of state court administration for
transmission to the NICS (as defined in IC 35-47-2.5-2.5) in
accordance with IC 33-24-6-3.
SOURCE: IC 35-36-9-1; (13)IN0583.1.8. -->
SECTION 8. IC 35-36-9-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. This chapter
applies when a defendant is charged with a murder for which the state
seeks a death sentence of life imprisonment without parole under
IC 35-50-2-9.
SOURCE: IC 35-36-9-6; (13)IN0583.1.9. -->
SECTION 9. IC 35-36-9-6, AS AMENDED BY P.L.99-2007,
SECTION 205, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE UPON PASSAGE]: Sec. 6. If the court determines that
the defendant is an individual with mental retardation under section 5
of this chapter, the part of the state's charging instrument filed under
IC 35-50-2-9(a) that seeks a death sentence of life imprisonment
without parole against the defendant shall be dismissed.
SOURCE: IC 35-37-1-3; (13)IN0583.1.10. -->
SECTION 10. IC 35-37-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. (a) In
prosecutions for murder where the death penalty is sought, the
defendant may challenge, peremptorily, twenty (20) jurors.
(b) (a) In prosecutions for murder where the death penalty is not
sought, and or Class A, Class B, or Class C felonies, the defendant may
challenge, peremptorily, ten (10) jurors.
(c) (b) In prosecutions for all other crimes, the defendant may
challenge, peremptorily, five (5) jurors.
(d) (c) When several defendants are tried together, they must join in
their challenges.
SOURCE: IC 35-37-1-5; (13)IN0583.1.11. -->
SECTION 11. IC 35-37-1-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5. (a) The
following are good causes for challenge to any person called as a juror
in any criminal trial:
(1) That the person was a member of the grand jury that found the
indictment.
(2) That the person has formed or expressed an opinion as to the
guilt or innocence of the defendant. However, such an opinion is
subject to subsection (b).
(3) If the state is seeking a death sentence, that the person
entertains such conscientious opinions as would preclude the
person from recommending that the death penalty be imposed.
(4) (3) That the person is related within the fifth degree to the
person alleged to be the victim of the offense charged, to the
person on whose complaint the prosecution was instituted, or to
the defendant.
(5) (4) That the person has served on a trial jury which was sworn
in the same case against the same defendant, and which jury was
discharged after hearing the evidence, or rendered a verdict which
was set aside.
(6) (5) That the person served as a juror in a civil case brought
against the defendant for the same act.
(7) (6) That the person has been subpoenaed in good faith as a
witness in the case.
(8) (7) That the person is a mentally incompetent person.
(9) (8) That the person is an alien.
(10) (9) That the person has been called to sit on the jury at the
person's own solicitation or that of another.
(11) (10) That the person is biased or prejudiced for or against the
defendant.
(12) (11) That the person does not have the qualifications for a
juror prescribed by law.
(13) (12) That, from defective sight or hearing, ignorance of the
English language, or other cause, the person is unable to
comprehend the evidence and the instructions of the court.
(14) (13) That the person has a personal interest in the result of
the trial.
(15) (14) If the person is not a member of the regular panel, that
the person has served on a jury within twelve (12) months
immediately preceding the trial.
(b) If a person called as a juror states that the person has formed or
expressed an opinion as to the guilt or innocence of the defendant, the
court or the parties shall proceed to examine the juror on oath as to the
grounds of the juror's opinion. If the juror's opinion appears to have
been founded upon reading newspaper statements, communications,
comments, reports, rumors, or hearsay, and if:
(1) the juror's opinion appears not to have been founded upon:
(A) conversation with a witness of the transaction;
(B) reading reports of a witness testimony; or
(C) hearing a witness testify;
(2) the juror states on oath that the juror feels able,
notwithstanding the juror's opinion, to render an impartial verdict
upon the law and evidence; and
(3) the court is satisfied that the juror will render an impartial
verdict;
the court may admit the juror as competent to serve in the case.
SOURCE: IC 35-37-5-6; (13)IN0583.1.12. -->
SECTION 12. IC 35-37-5-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 6. (a) If a judge of
a court of record in any other state, which by its laws has made
provision for commanding a prisoner within that state to attend and
testify in this state, certifies under the seal of the court that:
(1) there is a criminal prosecution pending in such court or that a
grand jury investigation has commenced;
(2) a person confined by the department of correction (other than
a person awaiting execution of a sentence of death) is a material
witness in such prosecution or investigation; and
(3) his the prisoner's presence is required for a specified number
of days;
a judge of a court with jurisdiction to try felony cases in the county
where the person is confined, after notice to the attorney general, shall
fix a time and place for a hearing and shall order the person having
custody of the prisoner to produce him the prisoner at the hearing.
(b) If at such hearing the judge determines that the prisoner is a
material and necessary witness in the requesting state, the judge shall
issue an order directing that the prisoner attend the court where the
prosecution or investigation is pending, upon such terms and
conditions as the judge prescribes, including:
(1) provision for the return of the prisoner at the conclusion of his
the prisoner's testimony;
(2) proper safeguards on his the prisoner's custody; and
(3) proper financial reimbursement or other payment by the
demanding jurisdiction for all expenses incurred in the production
and return of the prisoner.
(c) The attorney general is authorized to enter into agreements with
authorities of the demanding jurisdiction to insure ensure proper
compliance with the order of the court.
(d) If:
(1) a criminal action is pending in a court of record of this state by
reason of the filing of an indictment or affidavit or by reason of
the commencement of a grand jury proceeding or investigation;
(2) there is reasonable cause to believe that a person confined in
a correctional institution or prison of another state (other than a
person awaiting execution of a sentence of death or one confined
as mentally ill) possesses information material to such criminal
action;
(3) the attendance of such person as a witness in such action is
desired by a party; and
(4) the state in which such person is confined possesses a statute
equivalent to this section;
a judge of the court in which such action is pending may issue a
certificate certifying all such facts and that the attendance of such
person as a witness in such court is required for a specified number of
days. Such a certificate may be issued upon application of either the
state or defendant demonstrating all the facts specified in this section.
(e) Upon issuing such a certificate, the court may deliver it to a
court of such other state which, pursuant to the laws thereof, is
authorized to undertake legal action for the delivery of such prisoners
to this state as witnesses.
SOURCE: IC 35-38-4-6; (13)IN0583.1.13. -->
SECTION 13. IC 35-38-4-6, AS AMENDED BY P.L.106-2010,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 6. (a) An appeal to the supreme court or to the
court of appeals from a judgment of conviction does not stay the
execution of the sentence, unless
(1) the punishment is to be death; or
(2) the judgment is for a fine and costs (including fees) only, in
which case the execution of the sentence may be stayed by an
order of the court.
(b) If the punishment is to be imprisonment and a fine and costs
(including fees), the execution of the sentence as to the fine and costs
(including fees) only may be stayed by the court.
(c) In the case of an appeal from a judgment in a capital case, the
order of suspension must specify the day until which the execution of
the sentence is stayed.
SOURCE: IC 35-38-6; (13)IN0583.1.14. -->
SECTION 14. IC 35-38-6 IS REPEALED [EFFECTIVE UPON
PASSAGE]. (Execution of Death Sentence).
SOURCE: IC 35-50-2-3; (13)IN0583.1.15. -->
SECTION 15. IC 35-50-2-3, AS AMENDED BY P.L.99-2007,
SECTION 212, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE UPON PASSAGE]: Sec. 3. (a) A person who commits
murder shall be imprisoned for a fixed term of between forty-five (45)
and sixty-five (65) years, with the advisory sentence being fifty-five
(55) years. In addition, the person may be fined not more than ten
thousand dollars ($10,000).
(b) Notwithstanding subsection (a), a person who was
(1) at least eighteen (18) sixteen (16) years of age at the time the
murder was committed may be sentenced to
(A) death; or
(B) life imprisonment without parole and
(2) at least sixteen (16) years of age but less than eighteen (18)
years of age at the time the murder was committed may be
sentenced to life imprisonment without parole;
under section 9 of this chapter unless a court determines under
IC 35-36-9 that the person is an individual with mental retardation.
SOURCE: IC 35-50-2-3.5; (13)IN0583.1.16. -->
SECTION 16. IC 35-50-2-3.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE UPON PASSAGE]: Sec. 3.5. If a person:
(1) was sentenced to death under Indiana law before the
effective date of this section; and
(2) is awaiting execution of the death sentence on the effective
date of this section;
the person's death sentence shall be commuted to a sentence of life
imprisonment without parole.
SOURCE: IC 35-50-2-9; (13)IN0583.1.17. -->
SECTION 17. IC 35-50-2-9, AS AMENDED BY P.L.99-2007,
SECTION 213, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE UPON PASSAGE]: 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 an individual with mental
retardation.
(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 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, firefighter, 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 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) (h) 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). (h). 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).
(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) (h) 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.
SOURCE: ; (13)IN0583.1.18. -->
SECTION 18.
An emergency is declared for this act.